See v. State, CR

• Decision Date: 10 October 1988
• Docket Number: No. CR,CR
• Citation: 757 S.W.2d 947,296 Ark. 498
• Parties: James SEE, Appellant, v. STATE of Arkansas, Appellee. 88-77.
• Court: Arkansas Supreme Court

Page 947

757 S.W.2d 947

296 Ark. 498

James SEE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-77.

Supreme Court of Arkansas.

Oct. 10, 1988.

Kenneth Breckenridge, Hot Springs, for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

The appellant appeals his conviction of capital murder for the double homicide of his wife and step-daughter. Appellant was sentenced to life imprisonment without parole by the jury. For reversal, he alleges that the trial court erred in the following three ways: (1) in not appointing an independent psychiatrist for psychiatric evaluation; (2) in admitting into evidence certain photographs of the victims; (3) in rejecting appellant's jury instruction on involuntary intoxication.

At trial, the state's proof clearly showed that the appellant shot and killed the two victims. Appellant's primary defense focused on his chronic alcoholism and the undisputed facts that he had been drinking on the day the shootings occurred and that, after his arrest that day, he was given a breathalyzer test which registered .15. ¹ Accordingly, he filed a pretrial motion for a psychiatric examination, and the trial court granted the motion and committed him to the Arkansas State Hospital, where he was evaluated by Dr. Kaczenski. Kaczenski filed an extensive report with the court and concluded that the appellant suffered from a chronic alcohol dependency, but he did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time the offense was committed. Kaczenski further said that it was very likely that the appellant was voluntarily intoxicated at the time of the commission of the crime. Appellant contended at trial, and now on appeal, that Kaczenski's evaluation was inadequate and that he failed to explore whether the appellant was involuntarily intoxicated when the offense occurred even though Kaczenski testified, "[I]t is possible he was involuntarily intoxicated." In sum, appellant claims he was entitled to an independent psychiatric evaluation to address this point.

In Dunn v. State, we held the defendant's right to an examination under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), was adequately protected by the examination at the state hospital. Dunn, 291 Ark. 131, 722 S.W.2d 595 (1987); see also Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Also in White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we denied White's request for a private psychiatrist to assist on his defense of voluntary intoxication and stated the mental health personnel, in their diagnoses, had taken into account White's alcohol abuse problem and his intoxication at the time the crime was committed. As we held in Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979), and reinforced in White, the state is not required to furnish expenses for a defendant to shop from doctor to doctor until he finds one who considers him mentally incompetent. The appellant's situation at hand is controlled by the principles noted in these earlier but recent cases.

While appellant argues that Dr. Kaczenski's evaluation was deficient in several ways, including having seen the appellant only on two occasions, the record reflects that the appellant was observed and treated during a thirty-day period. As the appellant concedes in his argument, Kaczenski's report was extensive, and we further note it met the requirements as prescribed under Ark.Code Ann. § 5-2-305 (1987). Kaczenski thoroughly considered appellant's alcohol and medication abuse problems before giving his opinion that appellant very likely was voluntarily intoxicated when the offense was committed.

In his second argument, appellant claims seven photographs of the victims admitted into evidence were more prejudicial than probative, especially since he did not contest the state's case as to the cause of death of the victims. He further supports his argument as to the inflammatory nature of the photographs by noting one juror was excused from duty because she became ill from viewing them. However, that juror, we note, had told the prosecutor during voir dire of the jury that the presentation of evidence regarding the victims' wounds would greatly bother her. As to his first argument, this court has held that a defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756.

Here, the trial judge examined each photograph to which the appellant objected, and made a determination on whether it depicted something not shown by the other photos. The court admitted three photographs which reflected different views of one of the victims as she was found at the crime scene. Four additional autopsy pictures were taken depicting the victims' entry and exit wounds and bruises. The state's expert witnesses used the photographs when giving their testimony concerning the victims' cause of death. From our review of these photographs and the testimony elicited that described their use at trial, we are unable to say the lower court abused its discretion when admitting the photographs into evidence. See Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987).

Finally, appellant urges the trial court should have given AMCI 4005, the jury instruction on involuntary intoxication. We disagree. Pursuant to Ark.Code Ann. § 5-2-207(a) (1987), intoxication that is not...