Hendrix v. State

2019 Ark. 351

588 S.W.3d 17

Roy A. HENDRIX, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-347

Supreme Court of Arkansas.

Opinion Delivered: November 21, 2019

Gregory K. Crain, Malvern, for Appellant.

Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for Appellee.

SHAWN A. WOMACK, Associate Justice

Roy Hendrix bound his mother, beat her head with a hammer, and drove away in her car. Though left for dead, Judy Hendrix survived. Hendrix was subsequently convicted of attempted capital murder, kidnapping, and theft of property. He appeals only the denial of his motion for continuance to obtain an independent mental evaluation. We affirm.

I.

Because a detailed account of the underlying case is unnecessary to resolve the sole issue on appeal, our factual discussion will be brief. On October 29, 2017, Hendrix was asked to leave the halfway house where he lived after showing up to work while intoxicated. He was dropped off at his mother's house in Leola that afternoon. Judy, who lived alone, was not home and was not expecting her son. Before Judy returned that evening, Hendrix consumed a bottle of vodka, two joints of marijuana, and some methamphetamine. He insists he cannot recall the rest of the evening. His recorded confession to police suggests otherwise. Hendrix told police that after he explained why he had been kicked out of the halfway house, Judy refused to allow him to live with her. He did not provide a detailed account of what happened next, but simply confessed that "[he] did it."

Later that night, a Leola constable conducted a welfare check on Judy at her granddaughter's behest. Judy's car was missing but the lights were on. The constable discovered Judy lying in her living room floor. She was bound at the ankle and bleeding from her head. She had sustained multiple blunt force head injuries, including several skull and facial fractures and bleeding in and around her brain. Despite the severity of her injuries, Judy survived. But she was unable to recall what happened.

Hendrix was soon arrested. He gave police the keys to Judy's car and told them where it was located. A hammer, vodka bottles, Judy's cell phone, and Hendrix's cell phone were inside the car. Judy's hair and blood were on the hammer. Hendrix was charged with kidnapping, aggravated robbery, attempted capital murder, and theft of property.

Prior to trial, Hendrix sought and received fitness to proceed and criminal responsibility examinations. Both examinations revealed that he suffered from alcohol, cannabis, and methamphetamine use disorders. But he was ultimately deemed fit to stand trial and capable of being held criminal responsible for his conduct. On the day before trial, Hendrix sought a continuance to seek an independent criminal responsibility examination. The circuit court found that he had not acted diligently and denied the request. A jury subsequently convicted Hendrix of attempted capital murder, kidnapping, and theft of property. He was respectively sentenced to two consecutive life terms and a ten thousand dollar fine. It is from this conviction that he directly appeals to this court.

II.

For his sole point on appeal, Hendrix challenges the denial of his motion for continuance filed the day before trial. He sought additional time to obtain an independent mental evaluation after the state hospital determined he was capable of being held criminally responsible. Hendrix admitted he had not sought an independent examination because he was waiting to see what the state hospital's report would hold. The circuit court found that Hendrix had not been diligent and refused to grant the continuance.

The decision to deny a continuance is within the sound discretion of the circuit court and will not be disturbed absent a clear abuse of that discretion. See Brown v. State , 374 Ark. 341, 347, 288 S.W.3d 226, 231 (2008). Hendrix's burden on appeal is two-fold: he must establish that the court abused its discretion and show that the decision resulted in prejudice amounting to a denial of justice. Id. Prejudice is not presumed in this context. See King v. State , 317 Ark. 293, 301, 877 S.W.2d 583, 588 (1994). Hendrix fails on both points.

A continuance should be granted only upon a showing of good cause. Ark. R. Crim. P. 27.3 (2017). In considering a motion for continuance, the court should "tak[e] 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." Id. The court should also consider: (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 movant believes them to be true. See Creed v. State , 372 Ark. 221, 223, 273 S.W.3d 494, 496-97 (2008). A lack of diligence alone is a sufficient basis to deny a motion for continuance. See Anthony v. State , 339 Ark. 20, 22, 2 S.W.3d 780, 781 (1999).

Hendrix sought a continuance to obtain an independent examination to support an affirmative defense of lack of criminal responsibility. See Ark. Code Ann. § 5-2-328 (Supp. 2017). A defendant lacks criminal responsibility for his actions if, due to a mental disease or defect, he lacked capacity at the time of the alleged offense to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law. See Ark. Code Ann. § 5-2-301 (Supp. 2017). A "mental disease or defect" in this context does not include voluntary intoxication caused by drugs or alcohol. See Ark. Code Ann. § 5-2-301(7)(B). This is true even when the defendant has a dependency upon or addiction to the intoxicating substance. Id. The burden of proving the existence of a mental disease or defect rests on the defendant. See Dirickson v. State , 329 Ark. 572, 578, 953 S.W.2d 55, 58 (1997).

It is clear from the record that Hendrix began exploring options related to his mental condition from the outset of the criminal proceedings below. In December 2017, a month after he was charged, Hendrix sought and was granted a fitness to proceed examination. The court consequently continued the March 2018 trial until July of that year. In May, Hendrix was examined by Dr. Benjamin Silber at the state hospital and deemed competent to proceed. Hendrix subsequently requested and was granted a criminal responsibility examination. The court once again continued trial to accommodate the examination. Trial was set to begin on September 27, 2018.

At a status hearing on September 12, Hendrix informed the court that the criminal responsibility examination was scheduled for September 20. Yet he raised no objection to the upcoming trial date at that time. Indeed, it was only after the examination returned unfavorable results that Hendrix determined he should seek an independent evaluation. In a report submitted on September 24, but allegedly received the following day, Dr. Silber concluded that Hendrix was capable of appreciating the criminality of his conduct and conforming his conduct to the requirements of the law. On September 26, Hendrix sought a continuance to obtain an independent evaluation to rebut Dr. Silber's findings and support an affirmative defense of lack of criminal responsibility.

During a hearing on the motion, Hendrix informed the court that he had not yet sought any other expert testimony or evidence related to his mental condition. Nor had he subpoenaed any witness, including Dr. Silber, to testify on the issue at trial the next day. Given that Hendrix requested a criminal responsibility examination from the state hospital in May, he had ample time to pursue an independent evaluation before trial. Instead, he planned to wait and see what Dr. Silber's report would conclude before seeking to obtain his own experts for an evaluation. We have consistently held that a defendant who employs such a "wait and see" strategy is not acting diligently in attempting to secure the necessary information on which to build a defense of mental disease or defect. See Dirickson , 329 Ark. at 578, 953 S.W.2d at 58 ; Miller v. State , 328 Ark. 121, 128-29, 942 S.W.2d 825, 829 (1997).

We likewise find no merit in Hendrix's assertion that the denial of the continuance effectively denied him the opportunity to seek an examination by an expert of his own choosing. It is true that a defendant's qualified expert of his choosing is permitted to have reasonable access to the defendant for the purpose of an examination. Ark. Code Ann. § 5-2-306 (Repl. 2013)...