*1 380 non-payment seeking damages of three complaint
upon for in which venture a business with “in connection checks County Florida, engaged to- Broward in were Defendants furnishing contracting for to Defend- Plaintiff with wit: financing property Defendant, owned for certain of ants Nursing the State of without Home, located Inc. and Rollins Florida.” allegation of contract of breach nowas There jurisdiction complaint. the Florida court Thus, of the based (1) (g). § (1) (a) not 48.193 48.193 pleadings (1)(g) invoked in was never Sec. 48.193 judgment This was rendered. in which the court the Florida barely mentioned section was contract” “breach been abandoned to have court and seems trial Arkansas judge attorney pointed appellants’ to the out when no complaint. alleged the Florida contract breach any merit, has un- point appellees raise, if it has now The doubtedly been waived. Supreme (g) Court Court and 20 of the Rules Rule rehearing petition provides Appeals for should
of used to specific which fact errors law call attention thought opinion are and that counsel to contain the court’s original fully argue Peti- expected briefs. in their the case rehearing 20. position Rule under ask is in no tioner rehearing petition is denied. John Elliott GRUZEN v. STATE of Arkansas CR 77-111 2d 591 S.W. 342
Opinion delivered December
(In Banc) [Rehearing January denied 1980.] *4 for appellant. Lessenberry Carpenter, & Molock, Clark, Gen., by: Asst. Atty. Dennis R. Steve Gen., Atty. appellee. for Elliott Gruzen Justice. John
John A. Fogleman, Diane Mize. felony murder of Dana the capital convicted of without imprisonment at life his sentence jury fixed reversal. We argue points four chosen to He has parole. objections to and later examine other those will first consider trial. error in his prejudicial there was determine whether by reason of guilty guilty and not pleaded Gruzen 13,1976, had commit- insanity charge April on course, during the and murder capital ted the crime of Diane Mize furtherance, of Dana kidnap rape indifference to manifesting extreme under circumstances value of human life. the trial court argument
We first treat Gruzen’s to be finding competent him to be abused its discretion tried, had an extended his- or sentenced. Gruzen convicted revolting the time of the tory At psychiatric problems. age and charged, years he was 34 with which he was crime Jersey. New Maplewood, his living parents at the home of Rutgers University extension graduate an honor He was Newark, years to although it had taken him nine college at complete the course studies. left his parents’
The crime occurred after Gruzen had Jersey He left a note to his April home in New on 1976. Jersey New for a time in order to leaving that he was parents straighten He returned home try problems. out his Pusin, 16, 1976, immediately contacted Dr. Max April years. After who had treated him for seventeen psychiatrist Pusin, that a crime with Dr. it was disclosed his consultation with Dr. incident he had discussed of the nature of an Revitch, psychiatrist a forensic to whom Gruzen Eugene *5 Pusin, in had been committed had referred Dr. been and County, Arkansas. Extradition was waived Faulkner which to this state. The information on Gruzen was returned 27, April was to trial was filed on 1976. put Gruzen attorney, prosecuting Upon Gruzen was motion of the Hospital 8, 1976, the State Arkansas June committed on 30-dayperiod was of observation usual for examination. request of the Commissioner at the two weeks extended for July hospital reported 19, 1976, a Health. On of Mental diagnosis type, paranoid schizophrenia, Gruzen was that of psychosis” a there was need indicated that “with and days’ An observation Gruzen. additional treatment of prosecuting granted by attor- the trial court was ney’s diagnosis. change request. no in There was competency hearing to stand Thereafter, on the of Gruzen a hearing sentencing, on a second formal was held. Before trial competency held. Gruzen’s was report examination, it was stated that
In first examining psychiatrist, opinion F. Dr. A. it was of joint psychiatric opinion Rosendale, staff that and the of degree legal irresponsibility mentally to ill Gruzen was probably examination, at the his he was at the time of that alleged offense, that did not have the time of the Gruzen against proceedings capacity him mental understand probably or to in his own defense and assist suffering degree as to mental disease or defect such criminality appreciate the of his conduct make him unable to or requirements of his conduct to the law. to conform hearing 15, 1976, in On December held order might men- determine whether Gruzen was court standing deposition tally capable of Dr. Max trial. A Jersey 8, Pusin, on December had taken in New which been 1976, had that he was read into the record. Pusin testified 22, He Gruzen on December 1959. described first examined spent fantasies, time both one who a lot of Gruzen as very reality. grandiose replaced erotic, He which harsh and diagnosed schizoid, as that Gruzen Gruzen said had had, age schizophrenic He
at deteriorated into a state. psy- schizophrenia the most common serious as described chosis paranoid tangential. presence country. Dr. Pusin had found this thinking He that Gruzen’s tendencies. said had unsuccess- He stated Gruzen investigated having fully attempted and re- suicide after having subject, preoccupied with become searched the *6 he had caused early Dr. Pusin said that suicide as as 1961. safety, in a for Gruzen’s own hospitalized, Gruzen to be 1961, the hospital in but that Gruzen had left hospital mental re- He said that Gruzen had contrary to medical advice. March, in Dr. Pusin said newed his research on suicide 1976. 8, 1976, that, home departure April after Gruzen’s from his excitement, great confu- April he returned on 16in state had, sion, agitation. and Dr. Pusin said that he disorientation where April hospital on committed Gruzen to a mental diagnosis (which Pusin said paranoid schizophrenia his acute) depressive, Dr. said that a was was confirmed. Pusin December, depression going had been on since progressive January, 1975 or 1976.
Dr. Charles Dean Yohe of Hot Springs, practices who medicine with a specialty psychiatry, in had examined Gru- zen three times while he Hospital. was Arkansas State Each time took two hours. He had last examined Gruzen the day the hearing. diagnosis before His schizophrenic reaction, paranoid and catatonic prognosis features. His very poor. He said he had learned that Gruzen was not taking any jail medication while he in Faulkner Coun- ty. him, According to Gruzen had retreated into fantasies auditory hallucinations. He expressed opinion Gruzen did not know going what was on at the hearing, but had other voices which to listen. Dr. Yohe had been unable to have full and free communication with Gruzen on any subject and said that Gruzen was incapable talking “straight” for more than a few seconds and change would subject three or four single times in a very sentence in a illogical way. Gruzen, In his opinion, in a situation where involved, trial, stress was like a criminal go “way would off that, the subject.” He doubted in a criminal case where the punishment might death, attorney an get any would rele- vant material from Gruzen. Dr. Yohe found that Gruzen’s condition had deteriorated considerably between his last observation of him at the hospital state and the one on the day before Yohe testified. Rosendale, examining Albert psychiatrist, tes- brought
tified that before Gruzen was before the combined July hospital staff of had concluded that Gruzen had the mental capacity proceedings to understand the defense, against effectively him and to assist his changed diagnosis that he his as to spite opinion fact *7 joined in the staff he had observed Gruzen opinion, and, during stay hospital he subsequent his while was still to diagnosis “schizophrenic, convinced as the staff paranoid type,” he was of the that Gruzen had the opinion to capacity assist his defense and to understand the pro- against ceedings hearing. him at the time of the Dr. Rosen- dale emphasized that, fact that repeatedly Gruzen said attorney, advice of his he not anything to discuss concerning the crime with which he charged. said, however, Rosendale that had seen not Gruzen in months, two and did know what his condition was at the time he was He testifying. stated that might Gruzen’s condition have either improved during or deteriorated the two months after he had hospital. left the state He had heard Dr. Yohe’s testimony, and did not question that doctor’s observation that Gruzen had greatly mentally. that, deteriorated He said if Gruzen were sent back to the hospital he would reevaluate him, and that psychiatric staff had been asked to re- him, evaluate but he would not be able to comment on his condition three months later.
Lt. Ken McFerrin Police, Arkansas State who attended Gruzen’s extradition hearing Jersey in New brought then Arkansas, him back to had visited Gruzen in County jail Faulkner after the hospital observation and felt that Gruzen was oriented as place to time and and knew where he was. McFerrin said that he and Gruzen a had nice visit, him, that Gruzen knew remembered their association and discussed their with trip him. McFerrin stated when he and Gruzen leaving were New Jersey, Gruzen was by instructed attorney his talk with “anyone about anything.”
At the conclusion of the hearing, stated, judge “The court holds that this question is a jury for the this, decide.” In who, court erred. No person aas result defect, of mental disease capacity lacks to understand the proceedings against him effectively or to assist in his own tried, defense shall be convicted or sentenced for the com- offense, mission of an long the incapacity so as endures. 388 certain, 1977). (Repl. beyond §
Ark. Stat. Ann. 41-603 It is doubt, that a reasonable Gruzen has mental disease or de- proceed fect.' When his fitness to with trial became an issue, duty it court to make determination of issue, either on the report Hospi- Arkansas State hearing after tal or on that issue. Ark. Stat. Ann. 41-606 1977). This is a matter that (Repl. must be decided the trial and it error him to judge, is reversible leave matter to to decide. jury Westbrook 2d (1979). S.W. question appellant’s on the procedure
The error in question submitting was not in to stand trial competency independent pretrial making was in not an jury; it *8 to appellant trial. In the before putting of issue determination that argument sub- disagree with the respect we state’s this judge’s trial jury the cured the question to mission The state making the determination himself. in not error 920, Fulk, it 175, 2d where 214 S.W. Forby v. 214 Ark. cites an statute on purpose the earlier held that it was not guilt to determine jury the selected subject deprive to the the fact the determination of a defendant of innocence of the sanity at the time of trial. to defendant’s question as are not at before us there involved and statute The statute different. In very is question presented all similar and act previous requiring post- that a Forby, simply we held until a guilt or innocence question on the of trial ponement was, time, at defendant had determined whether jury 3 of 1936. We Initiated Act repealed unsound mind question held, however, Act 3 did not leave that Initiated merely Hospital, pro- but sanity the Arkansas State to of trial with assistance jury at time vided the issue of Hospital State on the Arkansas trained staff of here pro- involved sanity when it was raised. statute that pre- different from completely procedure for a vides from that Act 3 and of Initiated prior adoption to scribed procedures observe Forby. The failure to approved tried or right not to be defendant’s protect to adequate him of deprives incompetent while stand convicted Missouri, v. 420 Drope right a fair trial. process due his (1975). 162, 896, 2d 103 L. Ed. 43 95 S.Ct. U.S.
389 this not reverse we should suggested that It been has that argue than rather appellant, ground because on this case issue, to decide this erroneously declined had judge the trial How erroneous. the court’s decision only argues imprisonment is life ever, where sentence in a case prejudicial the record for we must examine parole, without 1977); v. Collins (Repl. 43-2725 § Ann. Ark. Stat. errors. 106, den. 434 U.S. 195, 2d cert. State, 548 S.W. Ark. 261 977, 98 158, 434 U.S. 231, 54 L.Ed. den. 878, 98 2d reh. S.Ct. in order Appellant, (1977). 2d 471 54 L.Ed. S.Ct. nothing had to do on appeal for review question preserve sought in what he the trial court make known to more than 1977); (Repl. 43-2725.1 §Ann. way ruling. of a Ark. Stat. sought State, 5, 484 Clearly, 2d 90. v. S.W. Ford trial because of his with the proceed declared unfit to to be or to assist effec the proceeding to understand incapacity But, any about the if there is doubt in his own defense. tively by the totally dispelled it having been question preserved, at ruling, Gruzen’s immediately after the court’s fact Thus, even if this torney exceptions.” our stated: “Save all, it brief at argued appellant’s had not been question waived, waived, appeal. and was would not have been State, Ark. v. supra; Smith Collins 1977). 289; (Repl. 2d Ark. Stat. Ann. 43-2725 S.W. great potential prejudice The fact that there was a may easily demon- failure to rule on the issue the court’s *9 to strated, ruling make a cannot be said if the mere failure to trial, During in and of itself. the course prejudicial be Rosendale, testimony the state relied heav- upon Dr. whose hearing, though even he had not seen ily pretrial at the months, after this hear- reports, for two heard news Gruzen fasting. Dr. Rosendale then visited ing, that Gruzen was week the trial County jail in the Faulkner one before Gruzen by the was called as a rebuttal witness began. Rosendale state. cross-examination, told of his visit a
On Dr. Rosendale jail in a cell in which Gruzen week before the trial to Gruzen that was occupant. Dr. Rosendale said Gruzen was sole time, of a revelation at that had told Rosendale delusional Rogers at Hall at the passageways God about secret from Rosendale, Hospital by Arkansas State that were used had given Rosendale a diet he special had worked out for the cure of all mental in prisons jails, illnesses had related that his attorney Lessenberry Jack had claimed to be his defense him, attorney, but not working was for and that Lessenber- ry’s services were not needed because God taking was care interview, of him. Based this Dr. Rosendale expressed opinion that effectively Gruzen could not assist Lessen- berry in his defense that he was of no use whatsoever to Lessenberry in that defense. Rosendale also testified that only confidence, had he gain failed to Gruzen’s but he did not think that Gruzen had cooperated Lessenberry with any better than he had with him. probability that there prejudice is further dem- by the presentence
onstrated hearing. After the verdict was returned, attorney Gruzen’s Lessenberry moved a new for trial on the basis that Gruzen had been unable to assist his defense counsel in the preparation during for and the trial. Lessenberry When asked that there be a hearing on the motion, the prosecuting attorney resisted on the basis of the pretrial hearing, saying that the purpose had been to deter- mine whether Gruzen was competent to aid in the prepara- tion of the and objected Lessenberry’s to being allowed testify to about anything might during have happened the course preparations. Lessenberry permitted testify. (Gruzen was represented attorney another at this hearing.) Lessenberry got stated that he no assistance from Gruzen during pretrial preparations or during the course of the trial and that this was the first case which he had no input assistance from the defendant. He expressed the opinion Gruzen was not competent him. assist He said that he had been unable to fact separate fantasy his discussions with say Gruzen. We cannot that the court’s harmless, error was since the evidence at the pretrial hearing that Gruzen had the capacity required for trial pursuant Ark. Stat. Ann. 41-603 beyond was not doubt and the resulting potential prejudice very great. The case must reversed and remanded new for a trial because of the *10 trial court’s failure to make a determination of Gruzen’s trial, matters, fitness to stand so we must consider all other or, here, argued argued either appeal this if not where court, objections they are not were made unless likely to arise in a new trial.
The appellant’s first such matter is contention that the failing trial court erred in all evidence suppress obtained as privilege. result of a breach of the psychotherapist-patient privilege The recognized the Arkansas Uniform Rules Evidence, 1979), (Repl. Ark. Stat. Ann. 28-1001 Rule 503. That rule that a provides patient privilege has prevent any person disclosing other confidential com- diagnosis munications made for the purpose or treatment himself, of his among mental or emotional condition psy- chotherapist persons diag- who are participating nosis or treatment under the direction of the psychother- apist, including the patient’s family. The state contends that Jersey New statute governs rather than Arkansas upon statute which appellant relies. For the purposes of this assume, opinion, we without deciding, that the Arkansas applicable, Statute is though even it is more favorable to appellant than the New Jersey statute. question arises from the appellant’s denial of mo-
tion to suppress evidence. That motion was directed primar- ily to suppression of definitely evidence connecting Gruzen Arkansas, with the State of during period in April, that he was away from parents’ his home. The evidence was seized under a warrant to dwelling search the house of Gru- zen’s parents in New Jersey. The other evidence which appellant contends resulted alleged from the breach of privilege was Gruzen’s name.
The evidence discloses that when Gruzen went to Dr. Pusin his return to Jersey New story he related a seemed to be condition, the cause of agitated his but Dr. Pusin was unable to determine whether it was fact or fan- tasy. Dr. Pusin felt that this situation called for the services of a forensic psychiatrist. Because he experience had little that area of psychiatry and having difficulty because remaining objective due grown very to the fact that he had him, during years treating close to Gruzen the 17 Eugene Pusin asked Dr. diag- Revitch to participate in the nosis and treatment of Gruzen. After a two or three hour *11 the incident was
examination, Dr. Revitch concluded poten- psychotic state and inwas a factual and that Gruzen by tially the fact was tormented Dr. Revitch suicidal. conclusions, of horrible knew the facts he on his based by patient’s privilege. crime, his action was restricted but conferring two consultants with the situation about After subject, unsatisfactory on the of the literature review and an obligation find out it was his decided that Revitch Dr. Capt. of the office Donald Vallatt the crime. about Jersey County, prosecutor afriend had been New for Union years, friend for called his so Revitch Dr. Revitch for 25 of information, suspicion seeking that he to confirm his fantasy. reality, dealing asked Vallatt Revitch with girls any re- been murders preceding whether there had find out ported days. missing few within the in Arkansas inquiry, the North John Mason called Lt. a result of this As Department them check and asked Rock Police Little Center, and, as a re- Information the National Crime with by the that described sult, an offense such as learned According recently to Dr. in Arkansas. had occurred doctor given name of the Revitch, that he be when Vallatt asked talking person about, doctor at refused Revitch was Dr. shouting, that the first, person’s he stated when the officer started but Capt. Dr. said that John. Vallatt first name was any give name. did not him Revitch naturally parents their concerned about were Gruzen’s story They had Gruzen were unaware son’s condition. psychiátrists. wife told Either Revitch or his related to they Capt. if information Vallatt wanted Gruzens to call quickly Vallatt, the Gruzens called John. When about connected Revitch conversations with Dr. their call with his suspect in the murder of Gruzen was a and realized that John conveyed to Lt. John this information Diane Mize. He Dana discussing Mason, who, authorities in North it with after applied Rock, search the Gruzen warrant to Little relying Val- residence, received from the information parents probable had cause. Since Gruzen’s latt to establish police, police telephone given were to the number their of the Gruzen residence. the address able to obtain a case to make authorities items seized enabled Arkansas although prior against Gruzen, made to the disclosures Revitch, they had no substantive clues whatever as to identity girl’s slayer. the little .the
In approaching this question, we must remember that Dr. Revitch testify was not called to at the and the state *12 endeavoring was not any introduce statement made by Appellant attempting exclusionary is to invoke the rule him. developed by States, such cases as v. Weeks United 232 383, S.Ct. 341, 58 U.S. 652 (1914) 34 L.Ed. applied and to the by Ohio, 643, 81 states such cases v. Mapp as 367 U.S. S.Ct. 1684, 6 2d (1961). L.Ed. 1081 exclusionary The rule was developed as a deterrent to unlawful action of police officers. It applicable citizens, is not by to action private even when they inform state of coming officers matters to their knowl edge. State, 1150, v. Walker 244 Ark. 121; 429 S.W. 2d Burton, v. United 475 F. 2d (8th Cir., 1973). States 469 Appellant seeks to invoke the of poisonous “fruit doctrine,” citing tree v. Silverthorne Lumber Co. United States, 385, 182, 40 (1920); 251 U.S. 64 and S.Ct. L.Ed. 319 States, 471, 407, v. Wong Sun United 371 U.S. 83 S.Ct. 9 doctrine, L. Ed. 2d (1963). 441 This inception which had its gained and Silverthorne its name in v. Nardone United States, 266, 308 U.S. 60 S.Ct. 84 L.Ed. (1939), is another of exclusionary facet rule which has application only when the tree poisoned by by is police unlawful action Silverthorne, officers. In it was it knowledge said that gained by government’s own wrong cannot used. Sun, In the United Wong Supreme States Court dealt with evidence obtained as the of result an unlawful and arrest an unlawful invasion of the dwelling place of the accused to make the arrest. It was said that case that the exclusionary rule not apply government does when the independently knowledge obtains of the apart evidence from its own unlaw activity. ful Appellant’s argument in cooperating with Vallatt, Capt. Dr. Revitch acted on behalf of the state is neither convincing, accompanied by nor any citation of au thority, we find no merit in it. There no unlawful by action police officers in discovering identity of Gru zen. by The violation of privilege psychiatrist was not police action.
We do not find the case of
Lewis
situation,
(1979) analogous
appel-
Hendrickson saw the face of Dana Mize body when her removed from the stock pond. He testified that the flesh around the right side of her mouth was hanging down. Lt. Ken present body McFerrin was when the taken the water. He testified photographs that the accurately de- picted condition of body and the injuries. facial Bannister, Bob Coroner of County, Faulkner who was also present body removed, when the testified that photographs depicted body as he saw it. though
Even those photographs were corroborative of testimony witnesses, of these appellant says that the photographs should not have been admitted into evidence because there was no evidence to show who what caused *14 the tearing of the It flesh. is true that there no is direct regard, evidence in this but there are circumstances jury might which a draw an inference. Hendrickson said that he kept the area around pond “bush-hogged.” He kept cattle of various colors and breeds there. Dr. Carlton tes- tified when he examined body, he found hair it origin. that was of tear, non-human In addition to the facial superficial there were scratches and abrasions about the face which, according Carlton, to Dr. by could have been caused fingernails or briars. It would not be jury unreasonable for a to believe dragged that Dana had been across the field before put she was pond into the or to the idea accept that the facial tear resulted from her face having dragged been across stub field, and that the facial scratches supported such
396 Dana’s neck which found bruises on
inferences. Carlton strangulation. manual with he said were consistent Rodgers State, 419, 2d we 547S.W. In v. 261 Ark. any necessarily always whether that the test said should outweighed by inflammatory tendency photograph its of a is recognized probative determination that this value. We there lay judicial court. In this of the trial the sound discretion say of discretion. an abuse case, are there was we unable Rules of Evidence Rule 403 of the Arkansas We note that 1977)] (Repl. [Ark. 28-1001, now Rule Stat. Ann. governs question. that rule relevant evidence this Under substantially may only probative if value is be excluded its by outweighed danger prejudice, of considerations of of unfair confusion by jury, misleading issues, or presentation delay, of time or needless undue waste may be seen that the rule stated in cumulative evidence. It changed by tipping Rodgers been scales favor has probative photograph. note that error value of a We also the may ruling admitting predicated upon evidence
not be right objecting party of the is affected. unless a substantial (a). § 28-1001, This does not affect Stat. Ann. Rule 103 Ark. holdings weighing opposing previous of the factors our judicial court, within the sound discretion of lies which will not be appeal of a in the absence disturbed showing find clear here. of abuse of that discretion. We no abuse Appellant argues photographs should not have that the any presented jury with it cannot be stated when been certainty depicted actually damage that he caused argument is that test them. short this A answer rigid. simply There was not that discretion is trial court’s disappear- connecting him with evidence circumstantial girl. young with was last seen The fact that she ance of the appellant significant. See Parker 2d 822. S.W. Appellant argues photographs have should that the also capital cases. trial in been excluded of the bifurcated because savagery points attack nor He that neither the out *15 aggravating circumstance sadistic mind of the attacker is an sentencing jury the is in the second allowed to consider (Repl. the trial. See Ark. Stat. Ann. 41-1303 phase of Furthermore, 1977). capital under the he contends statute, required under culpable murder no mental state is statute, which is Ark. Stat. Ann. applicable the section (1) (a) 1977). The does (Repl. require § 41-1501 statute however, the victim was caused showing, that death the the manifesting under circumstances extreme indifference to life, and the relevant on photographs value of human were therefore, say, the subject. photographs that We cannot that were to on light not relevant shed that issue. There was certainly no the prejudice appellant stage the second trial, the jury punish- bifurcated because chose lesser ment.
Appellant also contends the jury arbitrarily that disre- garded testimony on the issue of appellant’s mental dis- and, ease therefore, or defect against their verdict is weight of the We evidence. do not determine the weight of the evidence on this appeal. question The is there whether any substantial evidence support Actually, verdict. arguing this point, appellant concedes that he bore bur- den of proof this affirmative defense and that the real question is any whether there is substantial evidence to support the verdict. See Campbell (1979).
S.W. 2d 938 But appellant says that the jury arbitrar- ily disregarded the evidence showing that because of mental disease or defect he lacked capacity to conform his conduct requirements of law or to appreciate criminality his conduct. testimony says which appellant jury disregarded was that expert witnesses who expressed opinions on the issue. No useful purpose would be served a review of all the evidence on point, this other than to show that there was substantial evidence to support jury ver- dict prevents which saying us from the jury arbitrarily disregarded the testimony. said, previously As we have expert testimony Gruzen ahas mental defect disease or mean, is undisputed. however, This does not that he was necessarily capacity without to conform his conduct to the requirements appreciate of law or to criminality of his conduct.
juryA is not bound to accept opinion testimony of
398 conclusive, it not experts compelled as and is to believe their any testimony testimony more than the of other witnesses testify. who Mutual Health & Accident Ass’n. v. Benefit Moore, 667, 2d may Ark. It 196 119 S.W. 499. consider an the expert’s opinion light expert’s in qualifications and credibility, given the and the opinion, reasons for his facts based, and upon other matters which his is but opinion it is accept expert not bound to an as A opinion jury conclusive. give should the it opinion weight opinion whatever thinks the may disregard testimony should have and any opinion it finds AMCI unreasonable. 105. testimony give opinion allowed are
Expert witnesses inex- understanding questions in jury aid to only as an correctly without likely to decide are not persons perienced only to such testimony is entitled assistance, expert but such American jury deserve. to the appears itas consideration 934, Cas. 1, Ann. Dunn, S.W. Ark. 178 120 v. Co. Bauxite 625. 1917C
Testimony is to be considered expert witnesses testimony in other and manner as jury in same case; testimony and light of other circumstances may, under weight, value and and jury alone determines its evidence, or reject accept all governing rules other the same it to be true or false. any part they may thereof as believe 152, v. Ark. 122 Byrd, 197 Telegraph Co. Western Union v. 569; Fidelity Guaranty 2d & Co. S.W. United States Park, 2d several Even when 491 S.W. 791. opposing no opinions concur their competent experts offered, is still bound to decide jury evidence is expert judgment. Western Union Tele issue its own fair Turner, jury 2d 633. The v. Ark. 77 S.W. Co. 190 graph experts connection opinions of consider must State, v. Kelley in the case. other evidence with all the judge jury is sole 509, 226 137. Ark. S.W. given weight to be and the witnesses credibility expert testimony of with the testimony, is the case just as their Testimony need supra. Kelley witnesses. other , it not di merely because undisputed as regarded not if, circumstances facts and from other rectly contradicted record, drawn con inference can be any reasonable v. Byrd, supra. Telegraph Co. trary thereto. Western Union jury support There was substantial evidence ver- by appellant, Tunnell, dict. A witness called Dr. B. Travis psychologist, suspected Jr., a clinical after his interview first might malingering with Gruzen that Gruzen *17 totally thought honest, have been after a second interview. A of a letter to the and this his mind crossed
report of Dr. Tunnell in form prosecuting attorney finding included a that average testified, Gruzen was above in intellect. Dr. Tunnell hypothetical question in answer to a which included facts in might evidence or which have been inferred from evi- dence, about Gruzen’s conduct between the time he left Jersey New and time he a took train to there return and expressed opinion competent that Gruzen was at that graduate time. Gruzen’s mother testified he did not from high college by taking equiva- school, but was to admitted lency intelligence quotient superior tests. His was in the range. intellectual ing psychiatrist Dr. Albert F. Rosendale was the examin- days who observed Gruzen for 45 before he presented Hospital. was to the staff at the Arkansas State presented being Dr. competent. Rosendale him as psychologist employed Tuff, Dr. Graham Allen at the Services, Human Services Center as of Director Clinical heavily said that his first reaction to the results of one test upon by expert relied who testified on behalf of witnesses appellant range that the test was was invalid above the of interpretability. opinion, In his it indicated that Gruzen was faking. perfect that another of He said test Gruzen showed judgment reasoning. score'on and abstract This witness experienced interpretation had tests which been response hypothet- Tuff, administered to Gruzen. Dr. to a question propounded Tunnell, ical expressed similar to that to opinion legal applica- applying tests ability appreciate criminality ble in as to Arkansas requirements his conduct or conform his conduct legally law, Gruzen was sane. Rosendale, Foren- F. was Chief of the
Dr. Albert who Hospital, Psychiatric Arkansas State sic expressed Section of the response hypo- opinion to the same the same opinion question. was of the thetical Dr. Rosendale attorney’s persistent to his advice adherence Gruzen’s to discuss the events pertaining charge against to the him indicated his ability to appreciate criminality of his conduct. conduct testimony Gruzen’s about
There was Jersey. to New until his return in Arkansas arrival time of his legally of a with that consistent this conduct Some evidence substantial sufficient There was person. competent legally respon- that Gruzen finding jury’s support committed. crime was when the his acts for sible reversal, Although argued points no other for appellant error, as re- prejudicial reviewed the record we have imprisonment in a case where the sentence life quired made appellant Some of the to which parole. without matters likely the court will not objection requests rejected at motion for a directed verdict Appellant’s arise retrial. *18 the on basis the close of the evidence on behalf of state the well that the had not shown that he was sane not state or defect is an affirma- taken. The defense mental disease prove by preponder- defendant must a tive defense which 41-601, -110 (Repl. § of the evidence. Ark. Ann. ance Stat. 1977). it to review the evidence necessary We do not deem kidnapped, raped which showed that Dana Mize had been Rock, drowned, Gruzen was and around Little had Conway happened, at the time this and Vilonia of that into which description rented a car which matched toward her home on pulled walking Dana was as she was day disappeared, sample she or that a hair taken from car, other samples victim matched taken from rented to for the say present question than that it was sufficient properly so were denied. motions for a directed verdict jury, cause remanded and the is reversed judgment The trial. new
Harris, C.J., participating. J., concurs.
Purtle, J., dissents.
Hickman, Justice, my concurring. Were I allow I. Purtle, John would my judgment I dissent to control emotions However, after capital felony case. in this majority view record, reviewing majority properly I am convinced the it in The law has not past. the law as we have treated state changed Bly we stated in since (1978). 2d 605
S.W. duty capital felony It is our in a case to examine only but appeal entire record for not errors raised may also those that be found the record. clearly appellant
The record reveals raised issue (Repl. to stand trial. Ark. Stat. Ann. 41-606 competency 1977) states: issue, proceed
If the defendant’s fitness to becomes an If party it shall be determined the court. neither finding report pursuant contests the filed to sec- 41-605), (§ may tion 605 the court make the determina- contested, report. finding tion on the basis of the If the hearing court shall hold a on the issue. placed duty above statute the trial court to make the decision of whether the appellant competent stand trial. The trial court did not make that determination. duty It is our to return the case to the trial court for a new any trial. We are not free to decide in a which case manner we personally expedites justice feel unless the accused has due process equal been afforded of law and has received treatment. gov- Such consideration is basic to our form of required by ernment and Constitution State *19 Arkansas and the Constitution of the United States. Justice, dissenting. I dissent be- Hickman,
Darrell judgment being cause is reversed for a reason not raised appeal. on
There objection preserved regard- was no in the record ing the trial failure to rule on competency court’s Gruzen’s argument appeal to stand trial. There is no at all on that the deciding court erred in not that issue itself.
Not even in capital cases do we search for errors preserved at the trial level. strong the evidence was that Gruzen was in no
While trial, evidence to the there was substantial condition stand trial, contrary. court had ruled him to stand competent If the done, in effect what was I would not reverse which is decision. summary, alleged
In this case reversed for no reason argued appeal. below
Larry W. STEFFEN v. STATE of Arkansas CR 2d 302 79-130 590 S.W.
Opinion delivered December