Davis v. State

• Decision Date: 22 January 2009
• Docket Number: No. CR 08-148.,CR 08-148.
• Citation: 291 S.W.3d 164,375 Ark. 368
• Parties: Kevin Lynn DAVIS, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

291 S.W.3d 164

375 Ark. 368

Kevin Lynn DAVIS, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 08-148.

Supreme Court of Arkansas.

January 22, 2009.

Daniel D. Becker, Hot Springs, for appellant.

Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

Kevin Lynn Davis, Jr., appeals his conviction for capital murder and sentence of life without parole imposed in the death of Patricia Young. He asserts that the trial court erred in (1) denying his motion to dismiss based on violation of his right to a speedy trial, (2) admitting evidence excluded by an agreement or stipulation of the State, (3) failing to hold a hearing and make a finding on fitness to proceed, and (4) failing to instruct the jury on a prior inconsistent statement. We affirm the circuit court. Our jurisdiction on appeal is pursuant to Ark. Sup.Ct. R. 1-2(a)(2).

Speedy Trial

Davis argues that the circuit court erred in denying his motion to dismiss for violation of his right to a speedy trial. Pursuant to Arkansas Rules of Criminal Procedure 28.2, a criminal defendant is entitled to have the criminal charges dismissed with an absolute bar to prosecution if the case is not brought to trial within twelve months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Ark. R.Crim. P. 28.3. Davis was arrested on November 3, 2005, and tried on June 27, 2007, 601 days after his arrest. He thus showed that his trial took place outside the twelve-month period of Rule 28.2. Once a criminal defendant shows that the trial will take place more than twelve months after the date of arrest, the burden shifts to the State to show that the delay was the result of the defendant's conduct or was otherwise justified. State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008). "[T]his court has consistently and repeatedly held that a defendant is not required to bring himself to trial or `bang on the courthouse door' to preserve his right to a speedy trial; rather, the burden is on the courts and the prosecutors to see that trials are held in a timely fashion." Jolly v. State, 358 Ark. 180, 193, 189 S.W.3d 40, 46 (2004).

Davis filed two motions to dismiss based on speedy trial. Both were denied. The record shows that this case was continued five times. It was first continued from March 7, 2006, to September 21, 2006, then from September 21, 2006, to December 7, 2006, then from December 7, 2006, to April 16, 2007, and finally from April 16, 2007, to June 27, 2007.

A. March 7, 2006, to September 21, 2006

Davis first argues that the circuit court erred in excluding the 204-day period from March 2, 2006, to September 21, 2006, as time attributable to him for his mental evaluation. As a preliminary matter, the State asserts that Davis's argument on speedy trial is foreclosed by the failure to make a contemporaneous objection. The contemporaneous-objection rule requires a defendant to apprise the court of alleged error "prior to making its decision." Marta v. State, 336 Ark. 67, 80, 983 S.W.2d 924, 931 (1999). Davis could not apprise the court of any alleged error in exclusion of time for the mental evaluation prior to the circuit court making its decision because no hearing was held at which he could object. The contemporaneous-objection rule does not apply under these facts.

In the present case, the circuit court simply excluded time on its own motion by issuance of an order. We addressed this situation in Tanner v. State, 324 Ark. 37, 42-43, 918 S.W.2d 166, 169 (1996):

In this case, the appellant's motion to dismiss was made before trial, and, under the circumstances of this case, he was not required to challenge the court-ordered exclusion of time immediately upon issuance of the court's order. As we stated earlier, it is the burden of the prosecution and the courts to see that a defendant is brought to trial on time.

(Emphasis added.) In Tanner, the circuit court reset Tanner's trial date on its own motion. Nothing in the record reflected that Tanner or his counsel were present when the decision was made, and the order indicated that the prosecutor and Tanner's counsel were notified of the continuance by mail. The circuit court in Tanner, on its own motion, as in the present case, "filed an order which purported to exclude the period ... from speedy trial computation." Tanner, 324 Ark. at 39, 918 S.W.2d at 167. Before a criminal defendant may be required to state a contemporaneous objection to the exclusion of time under speedy trial, the excludability of the period must be discussed "during a hearing where the defendant and his counsel were present." DeAsis v. State, 360 Ark. 286, 292, 200 S.W.3d 911, 915 (2005). If there had been a hearing, where counsel was present, and at which the propriety of the excluded period was raised and decided, an objection would have been required. See Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995). We reject the State's argument that a contemporaneous objection could have been or had to be made in this case where there was no hearing on the excludability of the period.

As noted, Davis argues that the circuit court erred in excluding 204 days due to the mental evaluation. He asserts that only a portion of those 204 days may be attributed to the mental evaluation and cites us to Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998), where this court discussed the period excludable due to a mental evaluation. Morgan provides that time is excluded from the "date the exam is ordered to the report's file date." Id. at 299, 971 S.W.2d at 222. Davis agrees the time required for the mental exam as defined in Morgan is excludable and attributable to him. He asserts, however, that only the thirty-four-day period of February 21, 2006, to March 27, 2006 is attributable to him. Pursuant to Morgan, the time attributable to Davis for the mental evaluation concluded on the date the report was filed. While the record does not reveal when the report was filed. The State bears the burden of showing that any delay is attributable to the defendant or otherwise legally justified. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). While the report cover letter transmitting the report to the court is dated March 27, 2006, the State has not shown when the report was filed. Because the report could not have been filed prior to its mailing, we accept the cover letter date of March 27, 2006, as the last date of exclusion attributable to Davis on the mental evaluation. This means that thirty-four days are excluded.

The remaining 170 days, of the total 204 days excluded by the circuit court, are not excludable based on the mental evaluation. Nothing indicates that the 170-day delay was attributed to any other cause. As already noted, and as we have repeatedly held, the burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Jolly, supra. A contemporaneous record must reveal that a delay is attributable to the defendant or the time will not constitute an excludable period. Moody v. Ark. County Circuit Court, 350 Ark. 176, 85 S.W.3d 534 (2002). There is nothing in the record that reveals that this delay was properly attributed to Davis; therefore, it is not excludable. Subtracting thirty-four days from 601 leaves 567 days from the date of arrest to the date of trial.

B. September 21, 2006, to December 7, 2006

Davis argues that the circuit court erred in excluding the period of September 21, 2006, to December 7, 2006. As with the prior excluded period, the State again argues that Davis is precluded from arguing the circuit court erred because he failed to make a contemporaneous objection. Six days before trial, on September 15, 2006, the State moved for a continuance of the September 21, 2006 trial date on the ground that it had submitted evidence to the Arkansas Crime Laboratory for testing, and that "the Crime Lab has not completed the requested analysis and it will not be available by September 21, 2006."

As with the order on the first excluded period, the circuit court did not hold a hearing. The State's motion to continue, as well as the order granting a continuance and excluding the time, were filed on September 15, 2006. The certificate of service on the motion indicates that the motion for continuance was mailed to Davis's counsel on the same day, September 15, 2006. Thus, the State argues that even though no hearing was held, Davis had to make a contemporaneous objection to the exclusion of time entered in an order granting a motion that he did not even know had been filed. For the same reasons as discussed under the first excluded period, we reject the State's argument that Davis had to make a contemporaneous objection.

Davis next argues that the circuit court erred in excluding the seventy-seven-day period of September 21, 2006, to December 7, 2006. The circuit court excluded the time, noting that the delay was because the Arkansas Crime Laboratory "report was not available." Davis notes that Arkansas Rules of Criminal Procedure 28.3(d)(1) requires that due diligence has been exercised to obtain the evidence; however, no argument is developed. We are offered this mere conclusion and are not cited to a single case.¹ We are not even told by Davis how there was a lack of due diligence. The failure to develop an argument precludes review on appeal. Flowers v. State, 373 Ark. 119, 282 S.W.3d 790 (2008). Thus, the seventy-seven days must be excluded. Subtracting seventy-seven from 567 leaves 490 days between the date of arrest and the date of trial.

C. December 7, 2006, to April 16, 2007

Davis next asserts that the circuit court erred in excluding the 130-day period of December 7, 2006, to April 16, 2007. The order resetting the trial to April 16, 2007, states that the trial was continued to accommodate a request for three trial days. The previous December 7, 2006 trial date was for a...