Miller v. State

• Decision Date: 14 April 1997
• Docket Number: No. CR,CR
• Citation: 328 Ark. 121,942 S.W.2d 825
• Parties: Steven Wade MILLER, Appellant, v. STATE of Arkansas, Appellee. 96-892.
• Court: Arkansas Supreme Court

Page 825

942 S.W.2d 825

328 Ark. 121

Steven Wade MILLER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-892.

Supreme Court of Arkansas.

April 14, 1997.

Q. Byrum Hurst, Jr., Hot Springs, James M. Pratt, Camden, for Appellant.

Winston Bryant, Attorney General, C. Joseph Cordi, Jr., Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant Steven Wade Miller appeals the judgment of conviction of the Columbia County Circuit Court convicting him of capital murder and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is pursuant to Ark.Sup.Ct.R. 1-2(a)(2) (as amended by per curiam order July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

Appellant and Heath Kennedy were arrested and charged with capital murder for the March 5, 1994 shooting death of Leona Cameron, a clerk of the Subway Sandwich Shop in El Dorado, Arkansas. Heath Kennedy was tried first and convicted of capital murder. This court affirmed the conviction in Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). Details of the crime are outlined in that opinion, and we will not duplicate recitation of those facts except as they may be pertinent to the particular issues raised in this appeal.

Motion for Continuance

Appellant contends that the trial court erred in denying his motion for continuance, which was made on the basis of the alleged necessity to secure expert witnesses to review previous psychiatric testing conducted on Appellant by doctors at the Arkansas State Hospital.

The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). An accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Id. A.R.Cr.P. Rule 27.3 provides:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

The following factors are to be considered by the trial court in deciding a continuance motion: (1) The diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Turner, 326 Ark. 115, 931 S.W.2d 86.

The following facts are relevant to this issue. Appellant was charged with capital murder on March 9, 1994, and subsequently entered a plea of not guilty by reason of mental disease or defect. On August 5, 1994, the defense filed a motion requesting that Appellant be transferred to the University of Arkansas for Medical Sciences Hospital in Little Rock for examination by Dr. Daryl Matthews, who had been retained by Appellant, to determine the existence of any physical, emotional, or psychological defects. The trial court granted the motion on September 22, 1994.

On December 2, 1994, the defense filed a motion for continuance on the ground that the examination had not taken place as of that date and, thus, it had not been determined whether Appellant was fit to proceed with trial. That motion was granted by order filed the same date. On December 15, 1994, the trial court entered an order for an evaluation of Appellant to be conducted at the Arkansas State Hospital.

Approximately seven months later, on July 13, 1995, a letter from the prosecuting attorney was filed with the circuit clerk's office notifying the trial court that Appellant's evaluation had been received from the state hospital. Included with the prosecutor's letter, was a copy of a letter to the trial court, succinctly reflecting the scientific conclusions, and the accompanying forensic evaluation completed by Dr. O. Wendall Hall, III and Dr. John R. Anderson. Contained at the end of the letter was a list of those persons, including Appellant's counsel, to whom a copy of the letter had been sent. The evaluation indicated that Appellant was capable of cooperating in the preparation of his defense and that, at the time of the commission of the crime, Appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The evaluation further indicated that two Minnesota Multiphasic Personality Inventory--II tests had been given to Appellant, but that the first test was determined to be invalid and was thus not scored. The reason provided in the evaluation for the invalidity of the first MMPI-II test was that, "Mr. Miller either did not read the items or read and answered the items in an attempt to over report psychiatric problems."

On August 11, 1995, the defense filed a motion for additional testing, on the recommendation of Appellant's retained psychiatrist, Dr. Sarah L. Strebeck, to determine whether Appellant suffered from organic brain disorder. Two weeks later, the defense filed a motion for appointment of an expert to conduct the examination for possible organic brain damage resulting from his possible involuntary exposure to alcohol while his mother was pregnant with him. The motion for additional testing was granted on October 2, 1995, and was to be provided at the state hospital as determined by Dr. Strebeck.

On November 1, 1995, the defense filed a second motion for continuance on the ground that Appellant was currently undergoing additional testing at the state hospital and that the defense did not believe there would be enough time to obtain the results of the testing in order to prepare for the trial, which was set for November 13, 1995. In an order filed November 7, 1995, the trial court granted the continuance and reset the trial for January 16, 1996.

A second forensic evaluation from the state hospital, filed on December 8, 1995, reflected that Appellant had been examined by Dr. Joe Alford for neurological assessment. Dr. Alford's report indicated:

Taken together, available data suggest relatively mild to moderate cortical dysfunction that is primarily evidenced through deficits on memory-based tasks and tasks involving ongoing attention and concentration. At the same time, he is of average intelligence, and he manifests some real strengths on complex cognitive tasks. He does display the kind of weakness on tasks requiring executive functions that is sometimes associated with poor impulse control. I find no evidence to suggest that Mr. Miller suffers from residuals from Fetal Alcohol Syndrome, since he does not display the intellectual deficits that are almost invariably associated with that syndrome.

The report further indicated that the additional tests conducted on Appellant were interpreted as being normal.

Over one month later, on January 11, 1996, the defense filed several motions, one of which was for the appointment of a forensic psychologist to interpret the two MMPI-II tests given to Appellant in June 1995. The defense claimed that it had not been provided with the actual tests until January 9, 1996, when defense counsel demanded the tests from the prosecutor. The defense also filed a third motion for continuance on the ground that Appellant was "shocked" by the findings of Dr. Alford's assessment and that, on the advice of its two retained expert witnesses, it needed a continuance in order to procure a neuropsychologist from out of state, because of the alleged difficulty in obtaining one of competence in Arkansas.

A hearing was conducted on the third motion for continuance on January 12, 1996. After hearing testimony from Dr. Alford and extensive argument from both sides, the trial court denied Appellant's motion on the bases of the evidence presented by Dr. Alford and the forensic evaluations completed at the state hospital, neither of which indicated any reason for additional testing. The trial judge stated that he had read the information submitted by the defense's two consultants, but that he saw no need for further testing because the defense experts merely referred to hypothetical mental defects, rather than some probable or concrete mental ailments. The trial court then instructed Dr. Alford to interpret the two previously administered MMPI-II tests, which the doctor stated could be done in a matter of hours, and provide that information to the defense. The court then denied the motions for the appointments of additional experts for the defense.

Additionally, it is worth noting that during that hearing, defense counsel argued that the State had not provided them with the results of the two MMPI-II tests until they had demanded them from the prosecutor on January 9, 1996. When asked by the trial court whether it was their position that they were unaware of the results of the two tests until that date, defense counsel indicated that they were. The trial court then confronted them with a letter to defense counsel from their own expert, Dr. Jonathan J. Lipman, dated December 26, 1995, which referenced "both MMPI evaluations." Defense counsel then conceded that the two tests were referred to in the original report from the state hospital, but that it was not until they had consulted Dr. Lipman, that they became aware of the significance of the tests, particularly the first test that was not scored.

On January 17, 1996, the first day of trial testimony, the defense renewed its motion for continuance for the above reasons, and also for the reason that it had just received on the previous evening a packet of handwritten notes of the examiners concerning Appellant's evaluations at the state hospital. The motion was again denied by the trial court, stating:

[T]he Defense has the burden of proof of...