dissenting. I cannot agree with the majority’s determination that the trial court did not err in denying Morgan’s motion for a continuance. Morgan moved for a continuance based on the unavailability of his expert witness, Dr. Travis Tunnell, a psychologist. Dr. Tunnell was the only defense expert that Morgan retained to examine him and to testify with respect to his affirmative defense of mental disease or defect. Dr. Tunnell had been served and was purportedly prepared to testify at the trial that was scheduled for January 21, 1997.
On January 7, 1997, Dr. Tunnell suffered a medical emergency that resulted in his undergoing open heart surgery. Morgan did not learn of Dr. Tunnell’s illness until Friday, January 17. He promptly filed a motion for a continuance on Monday, January 20, 1997, the day before the trial was scheduled to begin. Morgan stated in his motion that he had been informed that, as a consequence of the surgery, Dr. Tunnell would be unavailable to testify for approximately eight weeks. In his motion, Morgan requested that the trial be continued until Dr. Tunnell was able to appear and testify because Dr. Tunnell’s testimony was to be a vital part of his affirmative insanity defense. Morgan asserted that because Dr. Tunnell’s tests were unique and were administered at unique times during his incarceration, the testimony would not be cumulative. Morgan filed an affidavit stating that he expected Dr. Tunnell to testify that Morgan could not appreciate the criminality of his conduct or possess the requisite culpable mental state to commit the offense. The trial court denied Morgan’s motion, and the trial began on January 21, 1997.
Both the United States Constitution and the Arkansas Constitution expressly provide that the accused in all criminal prosecutions shall not only have the right to confront witnesses against him, but also “shall enjoy the right... to have compulsory process for obtaining witnesses in his favor.” U.S. Const, amend. 6; Ark. Const., art. II, § 10.
Ninety-five years ago, this court recognized the importance of preserving an accused’s constitutional rights to securing the testimony of his witnesses. Price v. State, 71 Ark. 180, 182, 71 S.W. 948, 949 (1903). In Price, the defendant had requested a continuance because of the absence of a witness who was extremely sick. The defendant followed the procedural requirements by setting forth the anticipated testimony of the witness in order to establish that the testimony was material to his defense. He also averred that the witness’s illness was not commonly fatal or of long duration. The trial court denied the motion for a continuance and ordered the witness’s deposition to be taken instead. The defendant objected, claiming his right to compulsory process to secure her attendance. In reversing the trial court’s denial of the motion for a continuance, we stated the following:
The fact that the witness was sick and unable to attend was not a circumstance to be made to work to the prejudice of the defendant. The state could better afford to suffer a continuance than to have one of her citizens deprived of evidence that might save him from a conviction of so grave a crime, and from so serious a punishment as incarceration in the penitentiary. While the subject of continuance is one over which the trial courts have a sound discretion, and their discretion will not be controlled except in cases where discretion is abused, yet in the latter case this court will not hesitate to reverse. We think the defendant has been deprived of evidence, without any fault of his own, which might possibly have secured a verdict of acquittal. This being true, the trial court erred in not granting the continuance as asked.
Id. at 182, 71 S.W. at 949.
It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. See, e.g., Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). However, this court has previously stated that this discretion with which the court is vested is a “judicial discretion,” and not a discretion that can be exercised arbitrarily. King v. State, 177 Ark. 812, 815, 7 S.W.2d 987, 988 (1928); see also Burtv. State, 160 Ark. 201, 256 S.W. 361 (1923); cf. Wood v. State, 159 Ark. 671, 252 S.W. 897 (1923) (holding that the denial of the motion for a continuance was not an abuse of discretion where the appellant made no showing regarding the character or anticipated duration of the illness and made no application for attachment of the witness).
In the case at bar, the trial court, in denying Morgan’s motion for a continuance, was also looking at Morgan’s motion to dismiss for lack of speedy trial. We must carefully differentiate these rights.
In addressing motions for continuances, our Rules of Criminal Procedure provide that the “court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.” Ark. R. Crim. P. 27.3 (emphasis added). The United States Constitution and the Arkansas Constitution both contain provisions granting an accused the right to a speedy trial. U.S. Const. amend. 6; Ark. Const., art. II, § 10.
However, we have also stated that a speedy trial is desirable and proper only so long as it does not prevent the accused from receiving a fair trial. Bell v. State, 296 Ark. 458, 466, 757 S.W.2d 937, 941 (1988). In a similar vein, the federal court has determined that it was necessary to grant a motion for a continuance to make a potentially material witness available in order to serve the “ends of justice.” United States v. Brewer, 515 F. Supp. 644, 646 (E.D. Ark. 1981). The court specifically found that “the need for such continuance outweighs the best interest of the public and the defendant in a speedy trial.” Id.
Here, the trial court would not have prejudiced the State’s interest in bringing Morgan to trial within the parameters of our speedy-trial rule because the period of delay caused by Dr. Tunnell’s absence would clearly have been chargeable to Morgan. See Ark. R. Crim. P. 28.3(c).
The majority correctly lists four factors that the trial court should consider in determining whether a continuance should be granted. In my opinion, these factors have been met: (1) Morgan filed his motion three days, which included a weekend, after learning of Dr. Tunnell’s illness, thereby exercising due diligence in moving for the continuance; (2) Dr. Tunnell’s testimony was important because he was Morgan’s only retained expert witness to testify regarding his mental state, which was pivotal to the outcome of the trial; (3) it was highly likely that the trial court could have secured Dr. Tunnell’s attendance at trial in the event of a postponement; and (4) Morgan complied with our statutory requirement and filed an affidavit, stating not only what facts the witness would prove, but also that Morgan believed them to be true. Morgan also substantiated his motion with a letter from Dr. Tunnell’s treating physician, stating the nature and anticipated duration of Dr. Tunnell’s recovery.
In my view, consideration of these factors fully supported the request for a continuance. It is true that even without the help of his expert witness, Morgan was able to develop a consensus that he lacked the mental intent to commit the charged offense through examination of other witnesses, including the State’s expert witnesses. However, these witnesses had not testified regarding three psychological tests, which Dr. Tunnell performed on Morgan at unique times during his incarceration. Further, the jury did not accept the testimony of these witnesses as proving that Morgan was not guilty by reason of mental disease or defect at the time of the offense. The jury was not given the opportunity to consider the testimony of Morgan’s only retained expert witness in reaching its verdict. Dr. Tunnell’s absence at trial also meant that he was unable to assist Morgan in his examination of the State’s experts.
We have stated that a jury is not required to accept an expert’s opinion, see Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), but I maintain that the jury should not be denied an opportunity to hear that testimony when the expert’s opinion is based on tests not administered by other experts and when that testimony could have easily been made available by granting the requested continuance. For the foregoing reasons, I believe that the trial court abused its discretion in denying Morgan’s motion for a continuance. I would reverse the trial court’s decision on this point.
Newbern and Brown, JJ., join in this dissent.