Bowen v. State
| Citation | 911 S.W.2d 555,322 Ark. 483 |
| Decision Date | 20 November 1995 |
| Docket Number | No. CR,CR |
| Parties | William F. BOWEN, Appellant, v. STATE of Arkansas, Appellee. 93-1003. |
| Court | Supreme Court of Arkansas |
L.T. Simes, II, West Helena, Charlotta Norby, Atlanta, GA, for Appellant.
Clint Miller, Dep. Attorney General, Little Rock, for Appellee.
Teller Connie Fay Vondran was stabbed and killed in the course of a robbery of Delta State Bank in Elaine. Shortly after the Bank's alarm alerted the police, William F. Bowen was arrested in a nearby bean field. Mr. Bowen was convicted of capital felony murder and aggravated robbery and sentenced to death.
The State has raised an issue concerning the timeliness of the appeal. We consider the appeal to be timely. The judgment was entered January 15, 1993. Mr. Bowen filed a motion for a new trial on February 15, 1993. Pursuant to Ark.R.Crim.P. 36.22, a criminal defendant has the same time to file a new trial motion as for filing a notice of appeal, i.e., 30 days. Ark.R.App.P. 4(a). The 30th day from the judgment fell on February 14, 1993, which was a Sunday, thus extending the date until Monday, February 15, 1993. The Trial Court did not rule on the motion, so it was deemed denied March 17, 1993. Ark.R.App.P. 4(c). Mr. Bowen's notice of appeal was filed March 29, 1993, and thus it was within the 30-day period prescribed in Ark.R.App.P. 4(c).
Mr. Bowen has raised 19 points of appeal. As the State has pointed out, we must reverse and dismiss the aggravated robbery conviction because it is a lesser felony included in capital felony murder. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982).
We affirm the capital murder conviction, but we must reverse the death sentence and remand the case for resentencing. The reversal of the sentence is caused by error in instructing the jury with respect to a statutory aggravating circumstance, which was applied by the jury, although the statute was not in effect at the time the crime was committed.
The sufficiency of the evidence against Mr. Bowen is not an issue. We will recite some of the facts proven and add others as we address Mr. Bowen's points of appeal in the order he has presented them in his brief.
Mr. Bowen's arrest occurred because a citizen had seen someone running toward the bean field and so informed Chief Lawman. Chief Lawman read the Miranda rights to Mr. Bowen upon arresting him. Mr. Bowen made no response to indicate that he understood or waived his rights. Chief Lawman asked Mr. Bowen where the money and knife were. Mr. Bowen responded that he had dropped the money while crossing a ditch and he did not have the knife.
From the bean field, Mr. Bowen was transported to the Elaine City Hall to await the arrival of deputies from the Phillips County Sheriff's Department. Shortly thereafter, Mr. Bowen made inculpatory statements to Phillips County Sheriff Kenneth Winfrey and later to FBI agents.
The Trial Court ordered a mental evaluation of Mr. Bowen, which was performed in December 1990 by Dr. Heisler at the Phillips County Jail. Dr. Heisler determined that Mr. Bowen had dissociative disorder, significant depression, and a history of psychiatric treatment. He recommended further evaluation at the State Hospital. Just prior to his transfer to the State Hospital, Mr. Bowen attempted suicide by hanging himself with a bed sheet at the Phillips County Jail.
The State Hospital evaluation occurred during January and February 1991. The doctors concluded Mr. Bowen suffered from Multiple Personality Disorder (MPD) and recommended he be found not competent to stand trial. Mr. Bowen's evaluation at the State Hospital also revealed that during the six years before his arrest, he was diagnosed as suffering from schizophrenia, adjustment disorder, depression, and borderline personality disorder. In addition, his doctors discovered that he had made several suicide attempts. After the State Hospital found him incompetent, Mr. Bowen was discharged and returned to jail in April 1991, whereupon he made another suicide attempt.
In June of 1991, the Trial Court adjudicated Mr. Bowen incompetent and sent him back to the State Hospital for treatment. During an eleven-month stay, Mr. Bowen's doctors observed in Mr. Bowen a number of distinct personalities, but concluded in a report dated April 17, 1992, that his competency had been restored. In that same report, the doctors also rendered the opinion that Mr. Bowen was unable to appreciate the criminality of his act at the time the crime occurred. Mr. Bowen was adjudicated competent to stand trial on July 31, 1992.
In the period between July 31, 1992, and the date jury selection began, December 7, 1992, Mr. Bowen's attorney made several motions requesting further psychiatric evaluation. He also moved for acquittal pursuant to Ark.Code Ann. § 5-2-305 (Repl.1993). The motions were denied.
At his trial, Mr. Bowen presented an insanity defense through the testimony of experts who evaluated and treated him at the State Hospital, the primary witness being Dr. O. Wendell Hall, III. Dr. Hall discussed the MPD diagnosis and stated, in the State Hospital report, "We concluded ... that he was not able to appreciate the criminality of his conduct or conform his conduct to the requirements of the law." The prosecution answered with the testimony of Dr. Darryl Bruce Mathews. Dr. Mathews questioned the validity of MPD as a diagnosis in general and said he could not understand the statements and reasoning of the State Hospital doctors in reaching the conclusion that MPD caused Mr. Bowen to be unable to conform his behavior to the law. The jury found Mr. Bowen guilty of capital felony murder and sentenced him to death. In reaching their decision on the death sentence, the jury found two aggravating circumstances and two mitigating circumstances. Neither of the mitigating circumstances found by the jury involved Mr. Bowen's mental health.
Mr. Bowen appeals various rulings made at both the guilt phase and the sentencing phase of his trial.
mental illness
Arkansas Code Ann. § 5-4-603 (Repl.1993) permits the imposition of a death sentence by a jury if it unanimously returns written findings of certain aggravating circumstances including the conclusion that they outweigh any mitigating circumstances it may find. Statutory aggravating circumstances are listed in Ark.Code Ann. § 5-4-604 (Repl.1993), and mitigating circumstances are listed in Ark.Code Ann. § 5-4-605 (Repl.1993).
Forms to be used in considering and returning its verdict were given to the jury. On Form 1, listing the statutory aggravating circumstances, the jury reported unanimously finding that:
The Capital Murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody.
The Capital Murder was committed in an especially cruel or depraved manner.
On Form 2-A, listing the statutory mitigating circumstances, the jury reported unanimously finding that The Capital Murder was committed while William Francis Bowen was acting under unusual pressures or influences or under the domination of another person.
William Francis Bowen has no significant history of prior criminal activity.
On Form 3, the jury concluded the aggravating circumstances justified beyond a reasonable doubt a sentence of death, and the verdict of the jury was that Mr. Bowen be sentenced to death by lethal injection. See Ark.Code Ann. § 5-4-603 (Repl.1993).
The argument on this point has to do with the jury's failure to find, or even to consider these statutory mitigating circumstances which appeared on Form 2-A, and which are prescribed in § 5-4-605, but which were not checked by the jury as ones which existed in this case:
The Capital Murder was committed while the defendant was under extreme mental or emotional disturbance.
The Capital Murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
Mr. Bowen argues the jury should have found those mitigating factors to exist because the evidence of them was overwhelming and uncontradicted. No doubt, there was a great deal of evidence that Mr. Bowen had mental problems in the past. On the other hand, there was Dr. Mathews's testimony.
Dr. Mathews testified, in addition to his testimony related above, that the MPD diagnosis upon which the report founded its conclusion of lack of ability to appreciate the criminality of the act was "suggested" by the doctors to Mr. Bowen. He testified that the symptoms exhibited by Mr. Bowen fit into the "borderline personality disorder" diagnosis previously applied to Mr. Bowen. Dr. Mathews found some evidence of malingering. While he said he did not think the symptoms displayed by Mr. Bowen were totally artificial or the result of malingering, he concluded there was no evidence of mental impairment in the weeks before the crime.
A jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d. 233 (1986). Although medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Id. Testimony by experts is to be considered by the jury in the same manner as other testimony and circumstances in the case. Id. The...
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