                                   Cite as 2015 Ark. App. 340

                   ARKANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CR-14-928


ALAN RAY EDWARDS                                    Opinion Delivered   May 27, 2015
                                 APPELLANT
                                                    APPEAL FROM THE GARLAND
V.                                                  COUNTY CIRCUIT COURT
                                                    [NO. 26CR-2012-539]

STATE OF ARKANSAS                                   HONORABLE JOHN HOMER
                                    APPELLEE        WRIGHT, JUDGE

                                                    AFFIRMED



                           RAYMOND R. ABRAMSON, Judge

          Appellant Alan Ray Edwards was convicted of murder in the first degree with a firearm

enhancement and criminal attempt to commit murder in the first degree. Edwards was

sentenced to sixty-five years’ imprisonment in the Arkansas Department of Correction. For

his sole point on appeal, Edwards argues that the trial court erred in granting the State’s

motion in limine barring expert testimony concerning Edwards’s capacity to form intent. We

affirm.

          Edwards does not challenge the sufficiency of the evidence to support his convictions.

Accordingly, a lengthy recitation of the facts is unnecessary. The charges against Edwards

arose out of an incident on September 3, 2012, at the Pop-A-Top Lounge in Hot Springs,

Arkansas. Edwards and James “Toby” Fowlks were both at Pop-A-Top that day; Edwards had

been a regular customer at the club, but had recently been banned from the premises after he

threatened to kill a female bartender and everyone in the club. Edwards was apparently
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unaware that he had been banned from the club until he arrived on September 3. When

another bartender, Teresa Williams, informed him that he was no longer allowed at the club,

Edwards began “rantin’ and ravin’ and cussin’.” Fowlks intervened and chased Edwards

outside the club where Fowlks hit him in the face, causing a bloody nose.

       Edwards then got in his truck and drove away. Edwards returned to the club roughly

half an hour later with a shotgun and shot Fowlks twice, killing him instantly. Edwards then

turned the gun towards Williams and fired two shots at her, but missed. As Edwards exited,

he was apprehended by witnesses in the parking lot. The shooting was videotaped by club

cameras, though no audio was recorded.

       On November 12, 2012, Edwards was charged with one count of murder in the first

degree with a firearm enhancement and one count of criminal attempt to commit murder in

the first degree. After Edwards filed a motion for mental evaluation, the court ordered that

he undergo examination by Dr. Paul Deyoub. On January 2, 2013, Dr. Deyoub submitted

his forensic evaluation, which found that Edwards was fit to proceed, did not have a mental

disease or defect, had the capacity to form intent, had the capacity to appreciate the

criminality of his conduct, and had the capacity to conform his conduct to the requirements

of the law.

       Edwards contested Dr. Deyoub’s findings, and Edwards’s request for an independent

evaluation was granted. Dr. Albert Kittrell was employed to perform the evaluation. Dr.

Kittrell submitted his forensic evaluation on September 18, 2013. He concluded that Edwards

was fit to proceed, had a mental disease—a psychotic disorder not otherwise specified


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(NOS)—but no mental defect, did not have the capacity to form intent, and had the capacity

to conform his conduct to the requirements of the law.

         A hearing was held on October 7, 2013, and Edwards stipulated that he was fit to

proceed. Dr. Kittrell testified that Edwards did not have the capacity to form the required

culpable mental state based upon his finding that Edwards suffered from a psychotic disorder

NOS and had lost contact with reality. Specifically, Dr. Kittrell based his opinion on

Edwards’s report of having visual and auditory hallucinations and being paranoid without ever

having received proper treatment. On cross-examination, Dr. Kittrell confirmed that he

believed that Edwards was competent to stand trial. At the conclusion of the hearing, defense

counsel made a motion for judgment of acquittal on the mental-disease-or-defect issue

because Edwards lacked the capacity to form the requisite culpable mental state, an element

of the offense. The court denied the request, citing the conflicting opinions concerning the

issue.

         A jury trial was held May 21 and 22, 2014. Prior to jury selection, the State moved in

limine to exclude Dr. Kittrell’s opinion that Edwards lacked the capacity to form the requisite

culpable mental state, relying on Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), and

Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386. After briefly taking the matter under

advisement, the circuit court found that the Stewart case was directly on point and granted the

State’s motion. On May 22 the jury found Edwards guilty of murder in the first degree, the

firearm enhancement, and criminal attempt to commit murder in the first degree. The




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sentencing order was entered on June 4, 2014, and this timely appeal follows.1

       Edwards’s only argument on appeal is that the trial court erred in granting the State’s

motion in limine barring Dr. Kittrell’s expert testimony of Edwards’s lack of capacity to form

intent. The trial court relied solely on Stewart, supra, when making its decision. In that case,

a clinical psychologist concluded that Stewart had a mental defect that rendered him unable

to conform his behavior at the time he fatally shot a man after they exchanged heated words

in a café. A psychiatrist who also examined Stewart disagreed, opining that Stewart did not

suffer from a psychotic illness. As in this case, on the day of trial, the circuit court granted the

State’s motion in limine, which limited the expert testimony and precluded the defense from

asking the doctors if Stewart lacked the specific intent to commit murder at the time of the

killing. Stewart, 316 Ark. at 155–56, 870 S.W.2d at 753–54.

       The Stewart court acknowledged that jurisdictions in this country are split over the

issue of whether expert testimony on the ability of a defendant to form specific intent to

murder is admissible, but held that “the better view, in our judgment, is that it is not.” Id. at

158, 870 S.W.2d at 755. The court further explained:

              Other jurisdictions have held that expert testimony on specific intent to murder
       is inadmissible. See, e.g., Haas v. Abrahamson, 910 F.2d 384 (7th Cir. 1990); State v.
       Reynolds, 235 Neb. 662, 457 N.W.2d 405 (Neb. 1990); State v. Clements, 789 S.W.2d
       101 (Mo. App. 1990); State v. Bouwman, 328 N.W.2d 703 (Minn. 1982). According
       to the Nebraska Supreme Court, expert testimony on homicidal intent is merely an
       expression of an expert on how the jury should decide the case. State v. Reynolds, supra.
       We agree. We further agree that the issue of whether the defendant formulated intent

1
 On November 19, 2014, we remanded this case for a hearing pursuant to Brewer v. State, 66
Ark. App. 324, 992 S.W.2d 140 (1999), after a motion to substitute retained counsel was filed
on October 29, 2014. At a hearing on December 1, 2014, the trial court found Edwards to
be indigent, and an order was entered the same day.

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       to kill is within the capability of lay jurors to decide. State v. Clements, supra. While
       expert testimony on whether a defendant lacked the capacity to form intent is
       probative, we question whether opinion evidence on whether the defendant actually
       formed the necessary intent at the time of the murder is. State v. Bouwman, supra.

       Id. at 159, 870 S.W.2d at 755–56.

       The Stewart court also expounded on the distinction between the two categories of

expert testimony. Whether the defendant had the requisite capacity at the time of the killing

is a decision best left to the jury:

              [P]sychiatric testimony concerning whether a defendant has the ability to
       conform his conduct to the requirements of law at the time of the killing as part of
       an insanity defense may seem in some cases to approximate testimony on whether the
       defendant had or did not have the required specific intent to commit murder at a
       precise time. We draw a distinction between the two categories of testimony,
       however. A general inability to conform one’s conduct to the requirements of the law
       due to mental defect or illness is the gauge for insanity. It is different from whether the
       defendant had the specific intent to kill another individual at a particular time.
       Whether Stewart was insane certainly is a matter for expert opinion. Whether he had
       the required intent to murder Ragland at that particular time was for the jury to
       decide.

       Id. at 159, 870 S.W.2d at 755.

       Our supreme court and this court have consistently followed the rationale of Stewart

for over twenty years, and the instant case is directly on point with the facts and legal analysis

presented in Stewart. Both Drs. Deyoub and Kittrell agreed that Edwards understood the

proceedings against him, was capable of assisting in his own defense, was able to appreciate

the criminality of his conduct, and could conform his conduct to the requirements of the law.

The only dispute between the doctors’ respective conclusions was that Dr. Deyoub believed

that Edwards had the capacity to form intent and Dr. Kittrell opined that Edwards did not.

Based on the ruling in Stewart, the decision whether Edwards had the requisite intent to

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commit his crimes was an ultimate issue for the jury to decide, and it was not proper for any

witness—even an expert—to testify concerning that issue.

       At trial, both Drs. Deyoub and Kittrell testified as to Edwards’s mental health, and the

trial court instructed the jury on the affirmative defense of mental disease or defect. The jury

heard the testimony concerning Edwards’s mental status and was fully capable of deciding if

Edwards had the capacity to form intent without either of the doctors testifying as to their

opinion on that specific matter.

       The circuit court ruled that only a single aspect of Dr. Kittrell’s testimony was

inadmissible. Dr. Kittrell was allowed to testify as to all other opinions and findings related to

Edwards’s mental health, and the jury was instructed on the affirmative defense of mental

disease or defect. The decision to admit or exclude evidence pertaining to the defendant’s

ability to form intent is left to the trial court’s sound discretion, and we will not reverse absent

an abuse of that discretion. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. Here, the trial

court did not abuse its discretion in refusing to permit the expert opinion concerning

Edwards’s ability to form the requisite mental intent at the time he shot Fowlks. Therefore,

we affirm.

       Affirmed.

       GLOVER and BROWN, JJ., agree.

       John Wesley Hall and Sarah M. Pourhosseini, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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