Pascale v. State

Olly Neal, Judge. After a jury trial, Stephen Pascale was convicted of driving while intoxicated, fourth offense, refusing to submit to a breathalyzer test, operating a vehicle during a suspended license, and speeding. On appeal, he contends that the trial court erred in finding him competent to stand trial when an additional breathalyzer test should have been administered. We disagree and therefore affirm. At the pretrial hearing, appellant’s counsel advised the court that he had been informed that appellant was possibly intoxicated. Counsel moved for a continuance, claiming that appellant’s alleged physical state might affect his competency to testify and that appellant’s testimony was necessary in assisting in his defense. The prosecuting attorney objected to a continuance, stating that appellant had violated a condition of his bond and should be incarcerated until trial. The court instructed a state trooper to administer a portable breathalyzer test and found that appellant tested positive for alcohol consumption. Appellant admitted that he had consumed more than one alcoholic beverage on the morning of the hearing, but stated that he had worked in a pasture until two o’clock that morning. Appellant’s counsel indicated that there was not sufficient evidence to find that appellant was under the influence of alcohol and requested that an additional breathalyzer test be given. The following coEoquy occurred at the pretrial hearing: The Court: Mr. Pascale, do you feel you’re competent to proceed? Stephen Pascale: Yes, I do. The Court: And can you testify? Stephen Pascale: I believe so, to the best of my ability. The Court: You don’t feel you’re impaired by alcohol? Stephen Pascale: No. In fight of appellant’s testimony, the court determined that appellant was competent to proceed with the trial. During the State’s case-in-chief, the court overruled defense counsel’s objection to appellant testifying about his ability to recall what happened on the night of his arrest. Appellant admitted that he was able to recall the events that took place on February 9, 1997, and that he didn’t believe that he was intoxicated at the time of trial. Appellant contends that an additional breathalyzer test should have been administered once it appeared to the court that he was possibly intoxicated. On appellate review of a finding of fitness to stand trial, we affirm if there is substantial evidence to support the court’s finding. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). We have often stated that competency for purposes of a defendant’s ability to stand trial is whether he is aware of the nature of the proceedings against him and is capable of cooperating effectively with his attorney in the preparation of his defense. Key v. State, supra; Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994); Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is on that defendant. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). Appellant argues that this case is distinguishable from Meekins v. State, 34 Ark. App. 67, 806 S.W.2d 9 (1991). In Meekins, the appellant moved for a continuance on the ground that he had registered .19 on the breathalyzer test, which would, in turn, cause him to be unable to assist in voir dire and proceed with trial. The court, however, denied the motion and found that appellant was competent to stand trial. The denial of the motion was based on the testimony of two officers who opined that they had interacted with appellant and had found him to be coherent of the proceedings. In the case at bar, appellant argues that the only witness who testified regarding his intoxication was Arkansas State Trooper Richard Lewis, who testified that appellant had registered positive for the presence of alcohol on a portable breathalyzer test. However, the record reflects that appellant admitted at the pretrial hearing and at trial that he was able to understand the charges against him. During cross-examination, he testified that he had taken care of several sick cows until daybreak and that he had eaten breakfast before court. Appellant’s counsel never argued to the court that appellant was intoxicated, but rather requested that an additional breathalyzer test be given. Further, the record reflects that appellant made no requests for an additional breathalyzer examination once trial had proceeded. Although the dissent notes that there was uncontroverted proof that appellant smelled of alcohol on the morning of his trial, this court recently acknowledged that the odor of intoxicants and appellant’s involvement in a one-car accident are not substantial evidence of intoxication. See Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998). In this case, other than the smell of alcohol and the results from the portable breathalyzer test, there was no evidence presented to show that appellant had glassy eyes, slurred speech, or any other indicia of intoxication to show a lack of fitness to stand trial. Based on the evidence presented, we find that there was substantial evidence that appellant could assist in his defense, and we further hold that the court did not err in refusing a further examination. Affirmed. Meads and Roaf, JJ., agree. Stroud and Crabtree, JJ., concur. Griffen, J., dissents.