Baumgarner v. State

• Decision Date: 21 March 1994
• Docket Number: No. CR93-383,CR93-383
• Citation: Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (Ark. 1994)
• Parties: Earl BAUMGARNER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 380

872 S.W.2d 380

316 Ark. 373

Earl BAUMGARNER, Appellant, v. STATE of Arkansas, Appellee.

No. CR93-383.

Supreme Court of Arkansas.

March 21, 1994.

Chet Dunlap, Trumann, for appellant.

Sherry Daves, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant, Earl Baumgarner, was arrested December 30, 1991, and charged with the kidnapping and first degree battery of Brenda Dixon. He abducted the victim at knifepoint from a convenience store in Fisher, cut her, and caused her to suffer a broken kneecap. Appellant was convicted of both charges and, as a habitual offender, received consecutive sentences of life imprisonment and forty years. We affirm the judgment of convictions.

Six of appellant's seven assignments of error involve the denial of various motions made at trial. He does not question the sufficiency of the evidence, so we recite only the facts related to the motions. On March 31, 1992, appellant filed a motion requesting a psychiatric examination. The trial court promptly ordered an examination. See Ark.Code Ann. § 5-2-305(a)(2) (Repl.1993). Dr. Thomas Heissler, a forensic psychologist, went to the jail to conduct the examination, but appellant stated that he would not talk to him until he conferred with his attorney. Dr. Heissler could do nothing further and left without conducting the examination. Neither appellant nor his attorney made an effort to contact Dr. Heissler and let him know that appellant was ready to proceed with the examination. On August 27, Dr. Heissler wrote the deputy prosecuting attorney that he had been unable to complete the examination.

The case was set for jury trial on November 23. A pre-trial hearing was held on November 16, 1992, and, at that time, appellant's attorney stated that appellant had never been examined. The next day, November 17, another pre-trial hearing was held. Appellant's sister testified that appellant was not competent to stand trial. The trial court ordered that a mental examination be conducted forthwith. Dr. Heissler returned to the jail and conducted a clinical interview, administered a Wechsler Adult Intelligence Scale-Revised test, reviewed statements of the victim, a deputy sheriff, and a friend of appellant's, and looked at appellant's "rap sheet." Shortly thereafter, Dr. Heissler told the deputy prosecutor that his preliminary evaluation was that appellant was competent to stand trial and knew the difference between right and wrong at the time he committed the crimes. The deputy prosecutor passed this information on to appellant's attorney. Meanwhile, on November 18, yet another pre-trial hearing was conducted, this time to determine whether appellant should be granted a change of venue. The trial court denied the motion. At this same hearing the State sought, and was granted, permission to amend the information to allege that the kidnapping was done to "terrorize another" and to allege that appellant was a habitual offender.

By November 20, appellant's attorney had not received a copy of Dr. Heissler's written report, and he moved for a continuance on the ground that he had not received a copy of the report. Dr. Heissler called the deputy prosecutor on November 22 and told him the written report was completed. The deputy prosecutor drove to Dr. Heissler's office in Wynne, got the report, drove back to Harrisburg, called appellant's lawyer, and gave him a copy of the report at 6:00 that evening. The report was filed the next morning, the first day of appellant's trial. Appellant again moved for a continuance, this time on the ground that he did not have adequate time to prepare his affirmative defense of lack of mental capacity. The trial court denied the motion.

Appellant's first assignment is that the trial court erred in refusing to grant a continuance because the written psychiatric report was given to the defense attorney only fourteen hours before the trial began. The trial court's ruling was based, in part, on facts stated by counsel in their argument on the motion, and those facts, along with the others shown by the pleadings, are as follows. As soon as appellant's counsel mentioned the possibility of defense of mental disease the trial court ordered the examination. The forensic psychologist immediately attempted to conduct the examination, but was thwarted by the refusal of appellant to cooperate. This was on March 31. Appellant's attorney did not notify the trial court that the examination had not been conducted until November 20, or just three days before the trial was set. When the trial court learned there had not been an examination, it ordered one conducted forthwith. The psychologist completed the examination the next day, and, by phone, told the deputy prosecutor the preliminary result. The deputy prosecutor immediately told appellant's attorney of the preliminary report. The written report was received on November 22 and given to appellant's attorney at 6 p.m. The written report conformed with the earlier preliminary statements that appellant was competent to stand trial. From this it is clear that, while the appellant's attorney only received the written report fourteen hours before the trial commenced, he knew in advance what it would provide. In addition, the difficulties were caused by appellant's refusal to submit to the tests at an earlier time and his failure to notify the trial court that the examination had not been conducted.

Appellant failed to exercise due diligence in obtaining the examination. Failure to exercise due diligence alone can be the basis to deny a motion for a continuance. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). In addition, A.R.Cr.P. Rule 27.3 provides for the grant of a continuance "only upon a showing of good cause." The denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed absent a showing of abuse. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Appellant bears the burden of showing abuse and of demonstrating prejudice. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). Appellant has failed to show that the trial court abused its discretion under these facts. Appellant has also failed to show that he was prejudiced by the denial of the motion because he was able to secure an examination and the testimony of a neuropsychologist on the issue of his competence.

Appellant's next two assignments are that the court erred in allowing the State to amend the information to allege that he was a habitual offender and that the kidnapping was done to "terrorize another." The habitual offender act is based on the concept that one who is a persistent offender warrants an increased punishment for the protection of the community. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Whenever the State seeks to charge a defendant as a prior offender in order to seek additional punishment, it is essential that a habitual offender allegation be included in the information. Id. at 316, 556 S.W.2d at 436. The purpose of this requirement is to give the defendant notice of the essential elements the State relies upon to assess punishment. Id; see also Baugh v. State, 256 Ark. 64, 505 S.W.2d 519 (1974).

It is well settled that an information may be amended up to a point after a jury has been sworn if it does not change the nature of a crime, or create unfair surprise. See Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993); Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). We have held that an amendment which adds an allegation of habitual offender does not change the nature or degree of the crime. Finch, 262 Ark. at 317, 556 S.W.2d at 436; Osborne v. State, 237 Ark. 170, 371 S.W.2d 518 (1963). Such an amendment simply authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted. Finch, 262 Ark. at 317, 556 S.W.2d at 436; see also Higgins v. State, 235 Ark. 153, 357 S.W.2d 499 (1962).

The sole question for the trial court to resolve is whether the defendant is unfairly surprised by such an amendment. We addressed an argument similar to the one at bar in Kilgore, in which the appellant urged reversal because the State was allowed to amend on the day of the trial, charging him as a habitual offender, and he did not "fully know the charges against him until the day of the trial." 313 Ark. at 201, 852 S.W.2d at 812. We refused because Kilgore did not show that either he was unaware of the charges against him or surprised by the nature of the amendment. Id. We wrote that "[t]he fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense." Id.

Similarly, in Traylor v. State, 304 Ark. 174, 177, 801 S.W.2d 267, 269 (1990), we refused to reverse for the addition of a habitual offender amendment when it was shown that the defendant had been given a "rap sheet" showing prior convictions, thus could not effectively argue surprise. See also Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).

A similar situation exists in this case. There was ample evidence that appellant's attorney knew he was a prior offender and that the attorney was not surprised by the amendment. At a pre-trial hearing appellant's sister testified that he had been incarcerated in California on more than one occasion for various crimes, and appellant's attorney acknowledged that the deputy prosecutor had given him a copy of appellant's lengthy "rap sheet." The deputy prosecutor previously stated that he would seek to amend the information if the certified copies of the convictions were received from the State of California before the trial commenced. In sum, there was no showing of unfair surprise by the amendment.

The trial court did not err in allowing the State to amend the charge of kidnapping to allege that it was done for the purpose of "terrorizing...