Thessing v. State

230 S.W.3d 526

Billy THESSING, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-420.

Supreme Court of Arkansas.

March 2, 2006.

William R. Simpson, Jr., Public Defender, Brett Qualls, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen. and David R. Raupp, Sr. Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

Appellant Billy Thessing appeals from his judgment and commitment order for multiple offenses and his sentences, which include the death penalty. He raises nine points and requests that this court reverse his convictions and remand this case to the lower court or, in the alternative, that this court reverse his death sentence and remand for resentencing. We hold that his points are without merit, and we affirm the judgment and commitment order.

On February 17, 2003, Susan Basinger Sweet went to the home of her mother, Mattie Basinger, a sixty-seven year old cancer survivor. She discovered that Ms. Basinger's car was not there. She sent her son, Jeremiah, into the home first, but Susan and her children entered subsequently and found Ms. Basinger dead. They immediately went outside and called the Little Rock Police Department.

Takeisha Gilbert, a patrol officer for the department, was the first police officer to arrive at the scene. She observed blood throughout the house and found Ms. Basinger's body in the bedroom. The autopsy later revealed that Ms. Basinger had a total of six stab and cutting wounds on multiple parts of her body. She also received blunt force wounds to her head.

Two of the stab wounds were in her cheek region, which caused bleeding inside her mouth. The bleeding in her mouth caused her to aspirate blood into her trachea that subsequently went into her lungs. The medical examiner testified at trial that Ms. Basinger was alive when she received all these injuries. He concluded Ms. Basinger was alive and breathing in her own blood for ten to fifteen minutes before a blunt force trauma to her head caused her death.

On February 17, 2003, Pam McNew went to the Benton Police Department to talk to police officers after seeing a news report on television about Ms. Basinger's murder. She testified at trial that Thessing, a friend since childhood, came to her house late on the evening of February 11, 2003. She saw him in her yard when she returned from the store. He was burning trash in her front yard. They both went into her house, and he told her that he had killed someone earlier that evening. He then went back outside and brought in some groceries, a television set, vitamins, unfilled prescription slips, and a large Bible. Ms. McNew also told the authorities that the car he drove to her house was the car that belonged to Ms. Basinger. She later found Ms. Basinger's wheelchair in her shed. Police officers also found silverware and credit cards on the premises which were taken from Ms. Basinger.

Ms. McNew further stated that Thessing had tried to convince her fiancé, who was also at her house, to go with him to burn down Ms. Basinger's home so he could try to make the murder look like an accident. At the ensuing trial, Ms. McNew testified that she, Thessing, and her fiancé used crack cocaine together that night. Although Ms. McNew did not believe Thessing at first, she later ordered him to leave her house, because she had a child and because she did not want to get in trouble herself. She stated that Thessing left in Ms. Basinger's car. The police officers came and recovered all the things Thessing had left at her home. Ms. McNew received a $400 reward for going to the police.

Also on February 17, 2003, Thessing wrecked Ms. Basinger's car and was arrested by a Benton police officer for public intoxication. Inside Ms. Basinger's car, police officers found a pair of boots with Ms. Basinger's blood on them. Additionally, police investigators found Thessing's fingerprints in Ms. Basinger's home.

On April 16, 2003, the prosecuting attorney filed a four-count information against Thessing, charging him with capital murder, residential burglary, and theft by receiving property valued in excess of $2500.00. The information further charged Thessing with misdemeanor theft by receiving property valued at less than $500.00. The information added that Thessing was a habitual offender with four or more prior felony convictions.

Before trial, Thessing moved for an order that he was incompetent to stand trial. He was later judged competent to stand trial at a pretrial hearing. He was tried and convicted of all four charges against him. He was sentenced to death for the capital murder charge.

I. Competency to Stand Trial

Thessing first claims that the circuit judge erred in finding that he was competent to stand trial at the pretrial hearing. He points to the testimony of (1) Dr. Mary Wetherby, a psychologist, who stated that Thessing was not competent to stand trial because he had a psychotic disorder and was delusional; and (2) Dr. Bradley Diner, a psychiatrist, who testified that Thessing was not competent to stand trial because he suffered from a delusional disorder of the persecutory type. Thessing does add, however, that the State's expert, who was a psychologist on the staff of the Arkansas State Hospital, Dr. Charles Mallory, testified that he was competent to stand trial and that he was not delusional but was malingering. Thessing also concedes that prior to trial he was extensively examined at the Arkansas State Hospital and that three reports prepared by doctors there concluded he was competent to stand trial.

During pretrial hearings and throughout his trial testimony, Thessing claims that he made statements that revealed the depth of his delusional disorder. For example, he says that he continuously referred to a satanic cult that was trying to harm him. According to Thessing, this satisfied his burden of proof because he placed before the circuit judge substantial evidence that he was not competent to stand trial.

We disagree with Thessing's contention on this point. This court has long held that criminal defendants are presumed to be competent to stand trial and that they have the burden of proving otherwise. See, e.g., Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003); Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). This court has defined the test of competency to stand trial as "whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him." Haynes v. State, 346 Ark. 388, 392, 58 S.W.3d 336, 339 (2001). The test for competency on appeal is whether substantial evidence supports the trial court's finding. See id.; see also Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). We have defined substantial evidence as "that which is forceful enough to compel reasonable minds to reach a conclusion one way or another and requires more than mere speculation or conjecture." Mauppin, 314 Ark. at 568, 865 S.W.2d at 271. When determining whether there was substantial evidence to support a trial court's ruling regarding competency, this court has held that "[i]t is permissible to consider only the testimony which supports a finding" of competency. Id.

We have further held that when there is conflicting expert medical testimony regarding a criminal defendant's competency to stand trial, this court will not "attempt to weigh the evidence or pass on the credibility of witnesses. . . ." Jones v. State, 317 Ark. 131, 136, 876 S.W.2d 262, 265 (1994) (holding that "[i]t is within the Trial Court's discretion to rely on a second evaluation when making the competency determination because the issue of competence pertains directly to the accused's ability to understand the charges against him and assist in his defense"); see also Carrier v. State, 278 Ark. 542, 543, 647 S.W.2d 449, 450 (1983) (holding that this court "does not attempt to weigh the evidence or pass on the credibility of the medical reports where the opinions of the doctors conflict").

In the instant case, substantial evidence exists to support the circuit court's finding that Thessing was competent to stand trial. In addition to the circuit judge's own assessment of Thessing, he relied on reports signed by Dr. Michael J Simon, Dr. John R. Anderson, Dr. O. Wendell Hall, III, and Dr. Charles H. Mallory, after extensive examinations at the Arkansas State Hospital, all of which concluded that Thessing was competent to stand trial. These reports provide substantial evidence to support the circuit court's finding of competency. See Carrier, 278 Ark. at 544, 647 S.W.2d at 450 (holding that the psychiatric report of the Arkansas State Hospital that found the appellant in that case to be "fit and responsible" was substantial evidence to support the lower court's finding of competency). Admittedly, Thessing had his own witnesses who testified to his incompetency, but our case law is clear that where opinions of medical experts conflict, we do not weigh the evidence that was before the circuit judge, but look only to the evidence supporting a finding of competency. We affirm the circuit judge on this point.

II. Voir Dire

Thessing next asserts that the circuit judge erred and deprived him of his right to due process of law when he denied defense counsel the right to question prospective jurors after the prosecutor challenged those jurors for cause on whether they could impose the death penalty under certain circumstances. Thessing contends that this error was even more obvious in light of the fact that the circuit judge himself conducted rehabilitative questioning of prospective jurors in the venire who were inclined to impose the death penalty on Thessing.

We have stated the following regarding our standard for reviewing a challenge to the voir dire process:

The extent...