Flowers v. State

Cite as 2015 Ark. App. 181

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-849

Opinion Delivered March 11, 2015

APPEAL FROM THE CRAIGHEAD
DEMETRIOUS FLOWERS COUNTY CIRCUIT COURT,
APPELLANT WESTERN DISTRICT
[NO. CR-11-547]
V.
HONORABLE VICTOR L. HILL,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Demetrious Flowers appeals the revocation of his probation by the

Craighead County Circuit Court. Appellant does not challenge the sufficiency of the

evidence to support revocation of his probation. He raises two arguments in support of

reversal, contending that the trial court erred (1) by denying him the right to confront one

of the witnesses against him, and (2) by not sua sponte halting the proceedings to determine

whether appellant was mentally fit to proceed. Appellant’s first argument is not preserved for

appellate review, and appellant’s second point is not meritorious. Consequently, we affirm.

Appellant pleaded guilty in September 2011 to the crime of possession of a controlled

substance with intent to deliver in exchange for a five-year probationary term. He agreed to

abide by certain conditions during probation, including that he live a law-abiding life and

commit no crimes. The State filed three petitions to revoke probation, alleging several
Cite as 2015 Ark. App. 181

violations of conditions, the last petition being amended in June 2014. Appellant was accused

of committing criminal acts in separate episodes that occurred in March 2013, July 2013,

December 2013, March 2014, and April 2014. The hearing on the petition for revocation

was conducted on June 19, 2014.

As part of the State’s case, it called Lisa McBroom to the stand. McBroom was the

victim of two of appellant’s alleged crimes committed on July 1, 2013, those being residential

burglary and theft of property (a gun). McBroom testified that she lived in Jonesboro and

knew appellant as “Dee.” She said that Dee came to her door and knocked, asking to mow

her yard and for a soda. When she turned to get him a soft drink, she said that appellant came

into her home without permission, grabbed her forty-caliber Smith and Wesson gun from

under the coffee table, and fled.

During appellant’s attorney’s cross-examination of McBroom, counsel told the trial

judge: “Your Honor, he’s wanting to ask her a question directly.” The judge said no.

Cross-examination proceeded by defense counsel. The transcript indicates that defense

counsel paused to talk with appellant multiple times during this cross-examination. The

transcript also indicates that the trial court recommended that if appellant had any questions

to ask, he should pass those on to his attorney to ask on his behalf, which he did. No further

objection or argument was made on this topic.

Appellant’s first argument on appeal asserts that the trial court erred in denying

appellant his Sixth Amendment right to confront this witness against him. The State contends

that this constitutional issue is not preserved for appellate review, and we agree with the State.

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An appellant is bound by the scope and nature of the objections raised at the trial-court

level, and an appellant must attain a ruling from the trial court in order to preserve the issue

for appeal. Roston v. State, 362 Ark. 408, 208 S.W.3d 759 (2005). This is true even for

arguments that are constitutional in nature. Id. Nowhere did appellant raise an objection,

much less a confrontation-clause violation, for the trial court to consider or upon which to

rule. Thus, this argument is not preserved for appellate review.

In his second point on appeal, appellant argues that the trial court erred by not sua

sponte halting the proceedings to determine whether appellant was mentally fit to proceed,

citing Arkansas Code Annotated section 5-2-305. On appeal, appellant’s attorney points to

appellant’s initial confusion about whether he was entitled to a jury in a revocation

proceeding; his speaking out of turn; his identifying himself as “Brother Flowers” instead of

using his given name; his sometimes rambling and inconsistent testimony; his request for

mental-health help from the trial court; his statement that he considered suicide; and the trial

court’s remark at the end of the hearing that appellant had burned some brain cells due to

long-term drug use. Although the State argues that this issue is not preserved for review for

failure to raise it at the trial-court level, we address the merits because our supreme court has

held that there can be extraordinary circumstances in which a trial court should sua sponte

order a competency hearing. See Britton v. State, 2014 Ark. 192, 433 S.W.3d 856. We find

no error in the trial court’s failure to halt proceedings on its own motion.

According to Arkansas Code Annotated section 5-2-302, the State may not try,

convict, or sentence a person who lacks capacity to understand the proceedings or assist in his

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defense. Arkansas Code Annotated section 5-2-304 requires a defendant to notify the trial

court and the prosecutor at the earliest practicable time of any intent to put his fitness to

proceed in issue. Arkansas Code Annotated section 5-2-305(a)(1)(B)(i) requires the trial court

to immediately suspend any further proceedings in a prosecution if any party or the court

raises the issue of the defendant’s fitness to proceed. Section 5-2-305(a)(1)(B)(ii) requires a

trial court to order a fitness-to-proceed examination if it finds there is reasonable suspicion

that a defendant is not fit to proceed. Thus, the statute provides the framework and authority

for the trial court to halt proceedings, but it does not mandate a halt unless the trial court finds

reasonable suspicion to question the defendant’s fitness.

Competency to stand trial turns on whether an accused has sufficient present ability

to consult with his attorney with a reasonable degree of rational understanding, and if he has

a rational and factual understanding of the proceedings against him. Ring v. State, 2014 Ark.

App. 169. A defendant in a criminal case is ordinarily presumed to be mentally competent

to stand trial. Id. In Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990), our supreme

court held that the decision whether to provide psychiatric assistance to one facing a

revocation hearing must be made on a case by case basis. The supreme court further noted

that although the person subject to revocation was entitled to due process, there was no

entitlement to the full range of criminal trial safeguards because the trial court was not dealing

with a person who had yet to be convicted. Id.

The test for determining whether a trial court should sua sponte order a competency

hearing is whether there is substantial evidence that the defendant may be mentally

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incompetent to stand trial. Britton v. State, 2014 Ark. 192, 433 S.W.3d 856. The only

evidence before the trial court here regarding appellant’s mental competence was his own

testimony and behavior in the courtroom. In Britton, our supreme court was called upon to

determine whether the trial court erred in not sua sponte halting a murder trial and having

Britton mentally evaluated based on Britton’s outbursts, agitation, irritability, aggressiveness,

rambling testimony, and bizarre behavior. Britton’s attorney did not raise any issue of mental

incapacity during trial, nor did any expert or any witness at the trial. The supreme court held

that although Britton’s behavior was questionable, it did not rise to the substantial-evidence

level such that the trial court was mandated to intervene and halt proceedings.

Here, appellant’s behavior and comments do not rise to the level of Britton’s, and like

in Britton’s case, there was no issue about his competency raised by his attorney or any

witness. There was no evidence before the court that appellant was unable to consult with

counsel or assist in preparing his defense or had the inability to understand the nature and

object of the proceedings against him. As in Britton’s case, the appellant’s behavior may have

been questionable, but it did not rise to the substantial-evidence level to require the trial court

sua sponte to intervene and halt the proceedings. Having reviewed the record before us, and

considering that appellant was able to testify on his own behalf and actively participate in

assisting his attorney with questions for the witnesses, we simply cannot say that the circuit

court erred here.

Affirmed.
ABRAMSON and HOOFMAN, JJ., agree.
Paul J. Teufel, for appellant.
Dustin McDaniel, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.

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