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                SUPREME COURT OF ARKANSAS
                                       No.   CR-15-494

                                                  Opinion Delivered   October 22, 2015

ALAN RAY EDWARDS                                  APPEAL FROM THE GARLAND
                               APPELLANT          COUNTY CIRCUIT COURT
                                                  [NO. 26CR12-539]

V.                                                HONORABLE JOHN HOMER
                                                  WRIGHT, JUDGE

STATE OF ARKANSAS                                 AFFIRMED; COURT OF APPEALS
                                  APPELLEE        OPINION VACATED.



                       JOSEPHINE LINKER HART, Associate Justice

       A jury found appellant, Alan Ray Edwards, guilty of first-degree murder, attempted

first-degree murder, and a firearm enhancement, and he was sentenced to a total of sixty-five

years’ imprisonment. The Arkansas Court of Appeals affirmed his convictions. Edwards v. State,

2015 Ark. App. 340, 464 S.W.3d 473. Edwards then petitioned this court for review, and we

granted the petition. When we grant a petition for review, we consider the appeal as though

it had been originally filed in this court. See, e.g., Bohannon v. Robinson, 2014 Ark. 458, at 4,

447 S.W.3d 585, 587. On appeal, Edwards argues that the circuit court abused its discretion

in excluding expert-witness testimony concerning his lack of capacity to form intent. The

decision to admit or exclude evidence is within the sound discretion of the circuit court, and

we will not reverse that decision absent a manifest abuse of discretion or absent a showing of

prejudice. Bruner v. State, 2013 Ark. 68, at 11–12, 426 S.W.3d 386, 393. We affirm the circuit
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court.

         The shootings occurred at Pop-A-Top Club in Hot Springs, Arkansas. A number of

patrons and employees testified at the trial. To summarize, on August 28, 2012, Edwards

offered a $200 tip to Eliza Beth McDaniel, a bartender, which she refused. Edwards

nevertheless slipped the money into her unattended purse. The next day, Edwards returned

to the bar and asked the bartender if she had received the “surprise.” She unsuccessfully tried

to return the money to Edwards. On August 31, 2012, he returned to the bar and asked if she

would go out with him. Because Edwards was married, she declined. Edwards then demanded

the money back and threatened to kill her. She returned $62, which was all the money she had

on her, and offered to return the remainder in a few days. Edwards told her that she had better

return the rest of the money or he would kill her and everyone in the bar. The bartender

reported the incident to the owner and the manager, but rather than reporting it to the police,

the owner and the manager decided that Edwards would no longer be allowed in bar.

         On September 3, 2012, at 3:00 p.m., Edwards entered the bar and was told by the

acting manager, Teresa Williams, that he could not enter the bar until he spoke with the

owner. Edwards began arguing, and a customer, Toby Fowlks, told Edwards that he needed

to leave. Edwards told Fowlks that he was not scared and that Fowlks could not “kick” his

“ass.” Fowlks chased Edwards out of the bar. Outside, Fowlks struck Edwards in the face, and

Edwards left in his vehicle.

         Less than an hour later, Edwards returned to the bar with a shotgun in his hands, and

asked, “Where’s that son of a bitch that hit me?” After seeing Fowlks, Edwards said, “Oh,


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there you are,” and shot Fowlks twice, killing him. Edwards then turned to the bartender and

said, “Fuck you too.” He shot twice at her but she ducked behind a gaming machine, thus

avoiding injury. When Edwards left the bar, other patrons at the bar followed him, and after

a struggle, the patrons were able to disarm Edwards.

       Prior to trial, Edwards obtained the services of Dr. Albert Kittrell, an expert in the field

of psychiatry and forensic psychiatry. Doctor Kittrell conducted an evaluation of Edwards in

which he opined in his report that Edwards suffered from a mental disease—a psychotic

disorder not otherwise specified—at the time of the offenses. Doctor Kittrell noted that, at the

time of the offenses, “several factors impacted Mr. Edwards’s capacity for purposeful conduct”

and that he was “experiencing considerable emotional upheaval.” Doctor Kittrell, however,

opined that, even though Edwards was diagnosed with a mental disease and was psychotic at

the time of the offenses, Edwards nonetheless did not lack the capacity to appreciate the

criminality of his conduct and did not lack the capacity to conform his conduct to the

requirements of the law at the time of the offenses. In his summary, Dr. Kittrell noted that

“Edwards had impairment in his capacity to have culpable mental state required to establish

an element of the offenses charged.”

       At an in-camera hearing on Edwards’s fitness to proceed, with the circuit court

presiding, Dr. Kittrell was asked on what he “base[d] the fact that [Edwards] had the

impairment of the . . . culpable mental state?” Dr. Kittrell noted the diagnosis of a psychotic

disorder not otherwise specified, meaning that “at some point he had lost contact with reality

and when I saw him he continued to have ongoing impairment.” Doctor Kittrell noted that


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Edwards told him that he hallucinated and heard voices and was suspicious and paranoid.

Doctor Kittrell noted that Edwards had not received treatment for these conditions.

       On the day of the trial, the State argued that Dr. Kittrell should not be allowed to testify

that he did not believe that Edwards “had the ability to do a purposeful mental state.” In

response, Edwards’s attorney asserted that Edwards was entitled to a defense and that the jury

should determine whether he had a culpable mental state. The court took the motion under

advisement, and during the trial, the court ruled that “Dr. Kittrell cannot testify to his opinion

as to whether [Edwards] had the capacity to form a purposeful intent.” The court instructed

Dr. Kittrell that he could render an opinion on Edwards’s “ability to conform his conduct to

the requirements of the law” but could not opine “as to his ability to form the requisite mental

intent for this crime.”

       During his testimony, Dr. Kittrell again opined that Edwards suffered from a mental

disease, a psychotic disorder not otherwise specified. He noted that Edwards suffered from

auditory hallucinations. The doctor further noted that Edwards was limited in his ability to

handle stressful situations. On cross-examination, Dr. Kittrell testified that in his report he had

opined that Edwards’s psychotic disorder did not render Edwards unable to appreciate the

criminality of his conduct and did not render him unable to conform his conduct to the

requirements of the law.

       On appeal, Edwards asserts that Dr. Kittrell concluded that he lacked the capacity to

form intent and that the circuit court erred in excluding that testimony. He argues that under

Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), while Dr. Kittrell could not testify as


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to whether he actually formed the requisite intent during the commission of the offense, Dr.

Kittrell was permitted to testify that he lacked the capacity to form intent. He asserts that the

jury could have accepted Dr. Kittrell’s testimony on the presence of a mental disease and lack

of capacity to form intent, while rejecting the notion that a person could simultaneously

appreciate the criminality of his conduct and conform that conduct to the requirements of the

law, and thus find him not guilty by reason of mental disease or defect. He concludes that he

was prejudiced by the circuit court’s ruling because his entire defense was that he lacked the

capacity to form intent. He argues that, had the jury heard the testimony, there was a

reasonable probability that the jury would have acquitted on the first-degree charges and given

him a lesser sentence, or have acquitted on the lesser charges as well. He further asserts that the

circuit court denied him due process by depriving him of his only defense.

       A person commits murder in the first degree if, with the purpose of causing the death

of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-

102(a)(2) (Repl. 2013). A person acts purposely with respect to his conduct or as a result of his

conduct when it is his conscious object to engage in conduct of that nature or to cause the

result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013).

       It is an affirmative defense to a prosecution that at the time the defendant engaged in

the conduct charged he lacked capacity as a result of mental disease or defect to conform his

conduct to the requirements of law or appreciate the criminality of his conduct. Ark. Code

Ann. 5-2-312(a)(1) (Repl. 2013). We note that a report of a criminal-responsibility

examination shall include an opinion as to whether, as the result of a mental disease or defect,


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the defendant, at the time of the alleged criminal conduct, lacked the capacity to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law. Ark. Code

Ann. § 5-2-305(d)(3)(A) (Repl. 2013). Further, when directed by the court, the report also

is to contain “an opinion as to the capacity of the defendant to have the culpable mental state

that is required to establish an element of the offense charged.” Ark. Code Ann.

§ 5-2-305(d)(3)(B). “Capacity of the defendant to have the culpable mental state” means a

defendant’s ability to have the culpable mental state necessary to establish an element of the

offense charged. Ark. Code Ann. § 5-2-301(2) (Repl. 2013). Further, our statutes provide that

“[e]vidence that the defendant suffered from a mental disease or defect is admissible to prove

whether the defendant had the kind of culpable mental state required for commission of the

offense charged.” Ark. Code Ann. § 5-2-303 (Repl. 2013).

       In Stewart, 316 Ark. 153, 870 S.W.2d 752, the State moved in limine to prevent expert-

witness testimony as to whether the defendant “acted with the purpose to cause” the victim’s

death or whether the defendant “lacked the specific intent to do so at the time of the murder.”

The circuit court granted the motion. At trial, an expert witness testified that the defendant’s

mental defect prevented him from being able to conform his conduct and formulate the

requisite intent at the time he shot the victim. In rebuttal, the State presented expert-witness

testimony that the defendant appreciated the nature of his conduct and was able to conform

his conduct on the day he shot the victim. The court, however, would not allow the defendant

to have the State’s witness read the part of her report that indicated that the defendant’s

behavior did not appear to be premeditated. On appeal, the defendant argued that the circuit


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court erred in granting the State’s motion. This court held that expert testimony could be

elicited with respect to the question of whether a defendant could conform his conduct to the

requirements of the law as part of the insanity defense but that the expert witnesses could not

testify regarding whether the defendant formed the required specific intent to murder at the

time the murder was committed. The court noted that expert testimony on whether a

defendant lacked the capacity to form intent is probative, but questioned whether opinion

evidence on whether the defendant actually formed the necessary intent at the time of the

murder is. This court held that whether the defendant killed the victim purposely on a specific

day at least had the potential for being misleading and confusing to the jury. Stewart, 316 Ark.

at 159, 870 S.W.2d at 755–756.1

       Stewart precludes an expert witness from testifying whether the defendant formed the

required specific intent at the time the murder was committed. Here, however, Dr. Kittrell

never opined regarding whether Edwards formed the purpose of causing the death of another

person when he caused the death of Fowlks or attempted to cause the death of Williams. Thus,

the limitation on expert testimony set out in Stewart has no application to this case.

       Edwards bases his arguments on the assumption that Dr. Kittrell opined that he lacked

the capacity to form intent. Doctor Kittrell’s report, however, only stated that, at the time of

the offenses, “several factors impacted Mr. Edwards’s capacity for purposeful conduct.” In his

       1
        We have discussed the holding in Stewart in other cases, but in those cases the
defendants did not raise the affirmative defense of mental disease or defect that was raised in
Stewart and in the case at bar. See Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386; Laswell v.
State, 2012 Ark. 201, 404 S.W.3d 818; Bankston v. State, 361 Ark. 123, 205 S.W.3d 138
(2005); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); DeGracia v. State, 321 Ark.
530, 906 S.W.2d 278 (1995).
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summary, Dr. Kittrell noted that Edwards “had impairment in his capacity to have culpable

mental state required to establish an element of the offenses charged.” Thus, Dr. Kittrell never

stated that Edwards lacked the capacity to form intent, only that it was impacted or impaired.

The circuit court instructed Dr. Kittrell that he could not opine “as to his ability to form the

requisite mental intent for this crime.” The circuit court’s instruction can be read to mean that

Dr. Kittrell could not testify regarding whether Edwards formed the required specific intent

to purposely cause death at the time the murder was committed. As expressed in Stewart,

expert-witness testimony on whether a defendant generally lacked the capacity to form intent

is probative. Edwards, however, did not present testimony that he lacked the capacity to form

intent.

          Furthermore, Dr. Kittrell did opine that Edwards’s psychotic disorder did not render

him unable to appreciate the criminality of his conduct and did not render him unable to

conform his conduct to the requirements of the law. Thus, despite Edwards’s claim that the

jury could have still found him not guilty by reason of mental disease or defect, there was no

testimony to support these two elements of the affirmative defense. In this sense, Stewart is

even farther afield from the case at bar because in Stewart, the expert witness testified that the

defendant’s mental defect prevented him from being able to conform his conduct and

formulate the requisite intent at the time he shot the victim.

          Edwards further contends that was prejudiced because there was a reasonable

probability that the jury might have found him guilty of a lesser offense or given him a lesser

sentence. We again note that Dr. Kittrell never stated that Edwards lacked the capacity to


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form intent. Also, there was ample evidence of purposeful conduct. Edwards left the bar,

returned with a shotgun, sought out and addressed Fowlks prior to shooting him, and then

shot him twice. Edwards also addressed Williams and then fired twice in her direction. See

Fink v. State, 2015 Ark. 331 (holding, though not in the context of determining prejudice,

that evidence was sufficient to establish purposeful conduct).

       In conclusion, (1) Dr. Kittrell did not testify regarding whether Edwards formed the

specific intent to purposely cause death when he fired his shots at Fowlks and Williams; (2)

Dr. Kittrell did not opine that Edwards lacked the ability to form the requisite intent; (3) Dr.

Kittrell did testify that Edwards did not meet the elements of the affirmative defense; and (4)

there was ample evidence of purposeful conduct. Accordingly, we conclude that, contrary to

Edwards’s argument on appeal, Stewart does not compel this court to hold that the circuit

court abused its discretion or to hold that Edwards suffered prejudice. While Edwards further

asserts that the circuit court denied him due process by depriving him of his only defense, he

did not raise the argument to the circuit court, so it was not preserved for appellate review.

Hinkston v. State, 340 Ark. 530, 534–35, 10 S.W.3d 906, 909 (2000). Accordingly, we affirm

the circuit court.

       Affirmed; court of appeals opinion vacated.

       DANIELSON and WYNNE, JJ., dissent.

       ROBIN F. WYNNE, Justice, dissenting. While I agree with much of the majority’s

analysis, I must dissent because I conclude that this case should be reversed and remanded for

a new trial. I fully agree that Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), should


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not be read to prohibit expert testimony regarding a defendant’s capacity to form the specific

intent to commit murder. Because appellant was charged with first-degree murder and

criminal attempt to commit first-degree murder, the State in this case was required to prove

that appellant acted with the purpose of causing the death of another person. See Ark. Code

Ann. § 5-10-102(a)(2) (Repl. 2013). A person acts purposely with respect to his conduct or

as a result of his conduct when it is his conscious object to engage in conduct of that nature

or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). Evidence that the

defendant suffered from a mental disease or defect is admissible to prove whether the

defendant had the kind of culpable mental state required for commission of the offense

charged. Ark. Code Ann. § 5-2-303 (Repl. 2013). In the present case, Dr. Kittrell opined

in his report that, at the time of the offenses, appellant suffered from a mental disease, namely,

psychotic disorder not otherwise specified. Dr. Kittrell also found that several factors

impacted appellant’s capacity for purposeful conduct with respect to the charged offenses; he

stated that appellant was experiencing considerable emotional upheaval based on several

factors, among them appellant’s untreated psychosis (hallucinations and paranoia). At the

October 7, 2013 competency hearing, Dr. Kittrell testified regarding appellant’s capacity to

form the culpable mental state. The majority notes that Dr. Kittrell never stated that appellant

lacked the capacity to form intent, only that it was impacted or impaired. In my view, this

distinction is not important in deciding whether expert testimony on this point was

admissible; Dr. Kittrell expressed his opinion on the issue of appellant’s capacity to form the

requisite intent, regardless of whether that opinion was definitive.


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       The evidence regarding whether appellant had the capacity to form the culpable

mental state to commit first-degree murder was relevant and probative, and in my view it was

an abuse of discretion for the trial court to exclude it. Of course, whether appellant had the

required intent to murder Toby Fowlks at the time of the shooting was for the jury to decide.

See Stewart, 316 Ark. at 159, 870 S.W.2d at 755. It is well settled that the jury is not bound

to accept the opinion testimony of any witness as true or conclusive, including the opinion

testimony of experts. Navarro v. State, 371 Ark. 179, 191, 264 S.W.3d 530, 539 (2007) (citing

Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007)). In sum, whether appellant had the

culpable mental state to commit first-degree murder was a fact in issue, Dr. Kittrell’s opinion

regarding appellant’s capacity to form that intent was probative, and that evidence was

admissible. Furthermore, its exclusion was not harmless. It was a crucial part of appellant’s

defense, a key corollary to the defense’s evidence that appellant suffered from a mental disease

at the time of the shooting.

       I respectfully dissent.

       DANIELSON, J., joins.

       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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