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                 SUPREME COURT OF ARKANSAS
                                      No.   CR-16-1125

                                                   Opinion Delivered: October   12, 2017
GEORGE KENNEDY CAGE
                                APPELLANT

V.                                                 APPEAL FROM THE JEFFERSON
                                                   COUNTY CIRCUIT COURT
STATE OF ARKANSAS                                  [NO. 35CR-13-107]
                                   APPELLEE
                                                   HONORABLE BERLIN C. JONES,
                                                   JUDGE


                                                   AFFIRMED.


                               JOHN DAN KEMP, Chief Justice


        Appellant George Kennedy Cage appeals an order of the Jefferson County Circuit

 Court convicting him of capital murder and first-degree murder and sentencing him to two

 consecutive life terms. For reversal, Cage argues that the circuit court erred in finding him

 competent to stand trial and in refusing to instruct the jury on a mental disease or defect.

 Pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2016), we have jurisdiction because

 the jury imposed a sentence of life imprisonment without parole. We affirm.

                                             I. Facts

        On January 19, 2013, at approximately 2:40 p.m., police officers were dispatched to

 a Pine Bluff residence because of a domestic disturbance. The dispatching operator advised

 that the caller, later identified as Cage, stated that he had “shot” his wife. The officers

 arrived at the scene and took Cage into custody. Deputy David Walker placed Cage in the

 patrol car, and Cage stated that he did not mean to kill his wife, whom he identified as
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Mendi Bell. Investigator Randy Jackson met with Cage at the Jefferson County Sheriff’s

Criminal Investigation Division where the investigator advised him of his Miranda rights.

Cage waived those rights in writing and agreed to give a statement.

       During the interview, Cage stated that he had been playing a video game that day

while his stepson, William Dykes, repaired some speakers in a car outside. Dykes walked

inside the residence and began playing the video game with Cage. According to Cage, a

character in the video game used a racial slur. Cage, who is an African American, told

Dykes, a white male, not to use any racial slurs in the streets because he could get hurt or

killed. At that time, Cage’s wife, a white female, walked into the room and told him not

to speak to her son in that manner. Cage told Bell, who was pregnant with his child, that

she would have problems because their baby was biracial. Cage claimed that he tried to

counsel Dykes, who had used racial slurs in the past. Cage stated that the discussion with

his wife became heated, and he called his aunt to purchase a bus ticket so he could leave.

Cage walked into the kitchen.         Bell followed and called Cage a “no good sorry

motherfucker” and stated that he “had not done anything to contribute around the house.”

Cage claimed that he “snapped,” grabbed a kitchen knife, turned toward Bell, and began

stabbing her in the face, neck, and back as she ran out the door. Bell asked Dykes to take

her to the hospital, and Cage helped Bell get into the vehicle. Cage stated that he returned

to the residence, grabbed his handgun, and called the sheriff’s dispatch number. During the

call, he stated, “I just killed my wife. I’m sorry. . . . I just started stabbing her. I stabbed

her. . . . I did not mean to hurt her.”




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       That afternoon, on January 19, 2013, Investigator Kaleisha Wise interviewed Dykes

at Jefferson Regional Medical Center. Dykes stated that he witnessed Cage stab his mother

as she exited the front door. He stated that his mother fell to the ground, stood up, and

began bleeding profusely. According to Dykes, Cage went into the residence, retrieved

Bell’s cell phone and keys, tossed them to Dykes, and told him to call 911. When Dykes

attempted to get some towels, he realized that Cage had locked the door to the residence.

Dykes called his sister, Elizabeth Jackson, who then called 911. Bell and her unborn fetus

later died as a result of her stab wounds.

       On February 26, 2013, the State filed an amended felony information charging Cage

with capital murder of his unborn child and first-degree murder of his wife. Subsequently,

on July 31, 2013, Cage filed a motion for commitment to the Arkansas State Hospital to

determine whether, as a result of mental disease or defect, he lacked capacity at the time of

the offense. The circuit court granted Cage’s motion and ordered him to be committed to

the Arkansas State Hospital for a period not to exceed thirty days, ordered a medical opinion

on Cage’s ability to form a culpable mental state, and requested that the results of the testing

be provided to the circuit court. In January 2014, Dr. Mark M. Peacock evaluated Cage

and found that Cage suffered from schizophrenia and was unfit to proceed to trial; that he

did not have the capacity to understand the proceedings against him; and that he lacked the

capacity to assist fully and effectively in his defense. Dr. Peacock did not opine on Cage’s

mental state when he committed the offense. The State responded, and the circuit court

entered a not-fit-to-proceed commitment order and committed Cage to the custody of the

Arkansas Department of Human Services for detention, care, and treatment until restoration

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of fitness to proceed. At the state hospital, Cage received medication and therapy for

schizophrenia. Later that year, on November 5, 2014, Cage underwent a second evaluation

by Dr. Jason Beaman, who found Cage fit to proceed to trial. Dr. Beaman found that, after

having received medication and therapy at the state hospital, Cage possessed the ability to

understand the proceedings against him, possessed the ability to assist in his defense, and

accepted responsibility for his actions. Cage was discharged from the state hospital in

December 2014.

       The State then filed a motion for determination of Cage’s fitness to proceed to trial,

which the circuit court granted. On February 29, 2016, per the circuit court’s order, Dr.

Peacock performed an evaluation to determine Cage’s competency. He stated that he had

previously attempted to evaluate Cage, who presented with poor grooming and hygiene,

but Cage refused to participate.       Dr. Peacock noted that Cage had been receiving

intramuscular injections of haloperidol, and his discharge documents from his previous

hospitalization at the state hospital “indicated psychiatric stability.” Dr. Peacock stated that

Cage’s “ongoing medication regimen and compliance would support the likelihood of

psychiatric stability across time.” Dr. Peacock opined that Cage’s “refusal to cooperate with

the evaluation was deliberate and not a result of substantially impairing mental disease or

mental defect.” He further noted that Cage had “been described as cooperative with his

haloperidol injections . . . and simply appeared unwilling to talk with me.” Dr. Peacock

concluded that Cage was fit to proceed to trial. On July 6, 2016, the circuit court held a

competency hearing. On July 18, 2016, the circuit court entered an order denying Cage’s




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motion, finding that “[h]aving considered the evidence submitted to the court, the court is

of the opinion that [Cage] is fit to proceed to trial.”

       The case proceeded to a jury trial after the circuit court denied Cage’s request for a

bench trial. After the State’s case-in-chief, the defense called Dr. Jason Beaman, by way of

video deposition, who testified that he found Cage fit to proceed to trial and that he did not

suffer from a mental disease or defect at the time of the offense. Dr. Beaman testified that

he diagnosed Cage with antisocial personality disorder but that “it could be” schizophrenia

if he was “not willing to speak to anyone.”          He also stated that Cage’s diagnosis of

schizophrenia had been treated and that he did not display certain symptoms anymore. The

jury found Cage guilty of capital murder of an unborn person and first-degree murder of

Bell and sentenced him to life imprisonment without parole for capital murder and life

imprisonment for first-degree murder. Cage now brings his appeal.

                                 II. Competence to Stand Trial

       For the first point on appeal, Cage argues that the circuit court erred in finding that

he was competent to stand trial. Specifically, Cage points to his counsel’s testimony at a

pretrial hearing that Cage was not able to assist in the preparation of his defense; that Cage

did not understand why he was at the hearing; and that Dr. Peacock had not spent enough

time with him when diagnosing him with schizophrenia.

       The conviction of an accused person while he or she is legally incompetent violates

due process. See Jacobs v. State, 294 Ark. 551, 744 S.W.2d 728 (1988) (citing Pate v. Robinson,

383 U.S. 375 (1966)); see also Ark. Code Ann. § 5-2-302 (Repl. 2013). This court has long

held that criminal defendants are presumed to be competent to stand trial and that they have

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the burden of proving otherwise. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006).

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

circuit court’s finding. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). 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 v. State, 314 Ark. 566, 568, 865 S.W.2d 270, 271 (1993). When

determining whether there was substantial evidence to support a circuit court’s ruling

regarding competency, “[i]t is permissible to consider only the testimony which supports a

finding” of competency. Id., 865 S.W.2d at 271.

       On appeal, our inquiry is whether substantial evidence supports the circuit court’s

finding. For the following reasons, we conclude that it does. First, the circuit court made

its own assessment of Cage’s competency “after considering the evidence submitted to the

court.” The circuit court noted in its fitness-to-proceed order that it had heard testimony

from Dr. Peacock and Cage and that it had the opportunity to observe Cage. Second, the

circuit court relied on reports prepared by Dr. Peacock and Dr. Beaman and “reviewed the

forensic examinations [that] were performed January 7, 2014, November 5, 2014 and the

memorandum from Mark Peacock dated February 29, 2016.” Further, both Dr. Peacock

and Dr. Beaman had conducted posttreatment exams of Cage, and both doctors had

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concluded that Cage was competent to stand trial. Dr. Peacock’s report alone provides

substantial evidence to support the circuit court’s finding of competency. See Carrier v. State,

278 Ark. 542, 544, 647 S.W.2d 449, 450 (1983) (holding that the psychiatric report of the

state hospital finding the appellant to be “fit and responsible” was substantial evidence to

support the circuit court’s competency finding). Thus, for these reasons, we hold that the

circuit court did not err in determining that Cage was competent to stand trial, and we

affirm the circuit court’s ruling.1

                                       III. Jury Instructions

       For the second point on appeal, Cage argues that the circuit court erred in refusing

to instruct the jury on his mental state at the time of the offense. Cage contends that the

circuit court erred in refusing to give his proffered jury instructions, AMI Crim. 2d 609 and

610, on what constitutes a mental disease or defect and urges this court to reverse the circuit

court’s ruling.

       A party is generally entitled to an instruction on a defense if there is sufficient

evidence to raise a question of fact or if there is any supporting evidence for the instruction.

Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). Mental disease or defect is an


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       In his brief to this court, Cage presents another argument that the circuit court’s
statement concerning his request for a bench trial indicated that the “judge . . . wasn’t sure
he was competent enough to waive a jury trial.” At the hearing, the circuit court denied
his request for a bench trial and stated, “With schizophrenia and the way it can work in and
out, before the court would permit that [a bench trial], the court would need a full-blown
hearing.” Cage did not request such a hearing. Further, the circuit court stated, “He has a
right to a jury trial. He doesn’t have a right to a bench trial. . . . And the court is not
prepared to go forward with a bench trial in a capital murder case.” The Supreme Court
of the United States has stated there is no right to a bench trial. See Singer v. United States,
380 U.S. 24, 37–38 (1965). Thus, we cannot say that the circuit court erred in its ruling.

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affirmative defense, and the burden rests upon the appellant to prove that, at the time the

defendant engaged in the conduct charged, he or she lacked the capacity to conform his or

her conduct to the requirements of the law or to appreciate the criminality of his or her

conduct. Ark. Code Ann. § 5-2-312(a) (Repl. 2013). The standard of review regarding the

use of jury instructions is abuse of discretion. Jones v. State, 336 Ark. 191, 984 S.W.2d 432

(1999).

       Cage’s proffered jury instructions included AMI Crim. 2d 609, which states in

relevant part,

              Defendant asserts the affirmative defense of mental disease or defect. If, after
       considering all the evidence, you are convinced beyond a reasonable doubt that
       defendant engaged in the conduct alleged to constitute the offence, you should then
       consider the defense of mental disease or defect.

              A person is not criminally responsible for his conduct if at the time of that
       conduct, as a result of mental disease or mental defect, he lacked the capacity either
       to appreciate the criminality of his conduct or to conform his conduct to the
       requirements of the law.

             Defendant has the burden of proving the defense by a preponderance of the
       evidence, unless the defense is so proved by other evidence in the case.

       Further, AMI Crim. 2d 610 states,

               If you find that the defense of mental disease or defect has not been
       established, evidence that defendant suffered from a mental disease or defect may still
       be considered by you in determining whether defendant had the required mental
       state to commit the offense charged.

       Here, at trial, the circuit court provided the following rationale for its denial of Cage’s

request for these jury instructions when it stated,

             We don’t have anything in the record to whereby [sic] any of the professionals
       or expert witnesses testified that he had a mental disease or defect at the time of the
       occurrence. . . . [T]his court is not allowed to speculate. This court must rely upon
       evidence in the record. And, as we speak, it is not in the record that this defendant,
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       at the time of the occurrence . . . was experiencing any mental disease or defect that
       would have rendered him incapable of appreciating the criminality of his conduct or
       of reforming his conduct to that which is expected of the law. In fact, I believe the
       doctor testified that it was just the opposite. . . . Therefore, the court would deny
       the defendant’s motion that AMCI 2d 609 and the subsequent 610 be submitted as
       jury instructions.

       The defense’s own witness, Dr. Beaman, testified that he reviewed Dr. Peacock’s

finding of schizophrenia and agreed with it. Dr. Beaman emphasized that once Cage

received treatment, “his schizophrenia was in a treated state and any lack of cooperation was

volitional.” More significant, Dr. Beaman opined that “at the time of the crime [Cage] did

not have a severe mental disease or defect.” Dr. Beaman stated that he based his opinion

on his evaluation, Cage’s admission that he had no prior history of mental illness, a lack of

prior medications, and a review of the police records, including the officer’s probable-cause

and video statements. Cage presented no supporting evidence for the instructions. Based on

this testimony, we hold that the circuit court did not abuse its discretion in refusing to give

the AMI Crim. 2d 609 and 610 instructions. Accordingly, we affirm the circuit court’s

ruling on this point.

                                       IV. Rule 4-3(i)

       In compliance with Arkansas Supreme Court Rule 4-3(i), we have examined the

record for all objections, motions, and requests made by either party that were decided

adversely to Cage, and no prejudicial error has been found.

       Affirmed.

       Joseph C. Self, for appellant.
       Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.




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