dissenting. I dissent. Over the years the insanity defense has been whittled away until, with this case, virtually nothing is left.
Our state statutes set out an elaborate scheme for determining mental disease at the time of the offense. See Ark. Code Ann. § 5-2-393, et seq. (1987) and (Supp. 1991). The salient points of the procedure are these:
a. Evidence of a mental disease is admissible to prove whether the defendant had the culpable mental state to commit the offense. § 5-2-304.
b. Once the defendant files notice of a mental-disease defense, the trial court orders a psychiatric examination. §§ 5-2-304, 5-2-305 (Supp. 1991).
c. The report of the examiner includes whether the defendant had the ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the offense. § 5-2-305 (Supp. 1991).
d. Lack of capacity due to mental disease is an affirmative defense. § 5-2-312 (1987).
e. Lack of capacity due to mental disease at the time of the offense may result in a judgment of acquittal by the court. § 5-2-313 (1987).
f. Commitment of the defendant to the state hospital, upon a judgment of acquittal, may be commenced by the circuit court with resolution resting in the probate court. § 5-2-314 (Supp. 1991).
g. Release or discharge after commitment lies with the probate court after notice to the prosecuting attorney and defendant. § 5-2-315 (Supp. 1991).
This case represents the first time that this court has upheld an appellant’s mental" capacity in the face of all expert or lay testimony to the contrary. In Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991) the state presented the testimony of a psychiatrist who answered, hypothetically, that a person suffering from severe schizophrenia like the accused could have killed either because of delusion or longstanding argument. In Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991), Dr. Marino, staff psychiatrist for the state hospital, testified that the defendant was neither schizophrenic nor psychotic at the time of the killing. Similarly, in three other cases where mental disease and capacity to commit the crime were at issue, state hospital personnel found the defendants to be “without psychosis.” Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981); Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980).
The appellant hacked to death two women with a machete. He did this in the women’s back yard in broad daylight. He had first harassed the women by beating on their front door, giving them time to call the Hot Springs police twice. After the killings he had rushed wildly away and cut his stomach severely when he apparently dove over a barbed wire fence. At some point, either before or after the killings, he burned all ten fingers on a hot pan or hot stove. He changed clothes, and the clothes he had been wearing were piled by his mother on her front porch. They were wet. Thirty minutes after the savage killings, the appellant bought a six pack of beer and seemed only a “little nervous” to the salesman. These facts are byzantine on their face.
Exacerbating the abnormality of these events were the circumstances of his arrest within two to three hours of the deaths. He told Sergeant Larry Selig of the Garland County Sheriff’s office: “I read the Bible. Anyone that conquers the Bible can conquer the world.” When Hot Springs police officer Larry Douglas walked into the house where the appellant’s mother lived, he found him sitting in a chair drinking a beer with his shirt open. The gouges on his chest were in plain view.
The defense notified the prosecuting attorney that it would present a mental disease defense. On September 27, 1988, the appellant was admitted to the state hospital for evaluation.1 He was diagnosed as suffering from paranoid schizophrenia, which was not drug related, and remained in the state hospital for the next fifteen months because he was not fit to stand trial. On December 1,1989, the staff psychiatrist advised the court that he could be tried.
State hospital psychiatrists and staff were all in agreement according to Dr. John C. Marino and Dr. Wendell Hall, two staff psychiatrists, that the appellant was not responsible for his actions the day of the slayings due to mental disease and specifically due to paranoid schizophrenia. Dr. Marino was particularly graphic in his testimony. The appellant hallucinated, heard voices from God, and suffered from delusions. His preoccupation with fanatical religion was flagrant. He was obsessed by the religious concept of the rapture and was convinced that before the rapture there must be human sacrifice. Dr. Marino testified that the appellant was put on heavy dosages of anti-psychotic medicine.
The state hospital’s discharge summary filed by Dr. Marino on the appellant reads, in part, thus: “He was delusional about Christ, executions, sacrifices, preachings, and being ‘tormented’ by the devil and his own religious beliefs.” At the time of discharge for trial, he was still complaining of auditory hallucinations “helping me out and not persecuting or commanding in nature.”
Both Dr. Marino and Dr. Hall disputed any suggestion that the appellant might be faking his condition because he was a patient at the state hospital for more than fourteen months and was observed round-the-clock by clinicians.
The prosecutor presented no expert opinion to offset the defense witnesses. Nor did the state present lay testimony of competency, though this would have been clearly admissible. See Moore v. Duckworth, 443 U.S. 713, (1979); Avery v. State, supra.
We have held that insanity is an affirmative defense to be proven by a preponderance of the evidence. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). We have further held that the jury is free not to accept the testimony of expert witnesses as conclusive or to give expert testimony more weight than other testimony Robertson v. State, supra. Finally, when a jury rejects an insanity defense, the verdict must be supported by substantial evidence to support the jury’s finding that the defendant was legally responsible for his acts when the crime was committed. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).
What the majority relies on as substantial evidence to support the jury’s verdict is flimsy indeed. The majority cites a machete purchased six months before the slayings as evidence. Yet the purchase was clearly so stale in time as not to be meaningful. The majority then looks to the appellant’s burned fingers and wet clothes as acts of concealment suggestive of furtive activity and, therefore, mental competency. That the fingers were burned is certainly not the act of a sane man. And the record is devoid of proof as to when this was done. The piling of wet clothes on Mrs. Davasher’s front porch in full view of law enforcement is exactly the opposite of a clandestine act. Moreover, it could well have been the mother who washed the clothes. When subjected to scrutiny, these circumstances amount to little more than a handful of fog and certainly do not constitute substantial evidence.
The end result of our failure to enforce the insanity defense is that we are incarcerating the criminally insane in our penitentiary system which is not equipped to handle such inmates. Prison personnel, under these circumstances, have no alternative but to place these inmates in maximum security and heavily medicate them. Public policy is not well served by this solution, and the General Assembly did not intend it. Until the General Assembly removes mental disease as a defense to criminal activity and repeals Ark. Code Ann. § 5-2-301, et seq. (1987), we should enforce it.
There was no substantial evidence to go to the jury to support the jury’s finding of lack of mental disease. The circuit court erred in refusing to direct a verdict in favor of the appellant on mental disease. I would reverse with instructions to the circuit court to commence commitment proceedings under Ark. Code Ann. § 5-2-314 (Supp. 1991).
The appellant had been a patient before at the state hospital in August 1986 for amphetamine-induced delirium and was currently in treatment in Hot Springs at a mental health center and on prescribed medication.