dissenting. On March 15, 1995, appellant Robert C. Turner notified the State of his insanity defense and moved the court for a psychiatric examination and for all records, reports, evaluations, and examinations relating to it. That same date, the trial court ordered the evaluation and also ordered the examining agency to “make available to counsel the records of said examination, including all existing medical and pertinent records, including ‘raw data.’ ” The court further ordered the agency to transmit “a report of the findings of the staff” concerning Turner’s mental competency. None of this was done. Rather, the examining psychologist, Dr. Michael McAllister, was examined after the jury was sworn about his work to date. Dr. McAllister admitted on the stand that his report was not yet complete. Understandably, Turner’s counsel argues in his brief on appeal:
As a result, Appellant’s counsel was thus faced, on the very day of trial, with making a lightning-quick decision as to a matter of strategy, namely, the extent to which he would make use of the fact of the partial removal of Appellant’s brain in Appellant’s defense.
As a practical matter, defense counsel was forced to abandon the insanity defense.
This court has dealt with analogous situations on two prior occasions. See Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). In Hayes, the defendant had sought staff reports in conjunction with the court-ordered psychiatric examination. The mental health agency’s report addressed the defendant’s borderline retardation and diagnosed him as being without psychosis, although suffering from alcohol addiction and a severe antisocial personality. The report stated that it was based on historical data and physical and neurological examinations. The defendant did not receive copies of the underlying psychiatric data. We concluded, in reversing the conviction:
Here, it could be that an inspection and copying of these records and reports would have better enabled the appellant to prepare his defense, or interpose the defense of insanity, or present at trial crucial evidence bearing on mitigation, such as possible mental retardation, during the sentencing phase of the trial. We hold it was prejudicial error to deny him access to these agencies’ reports.
Hayes, 274 Ark. at 444, 625 S.W.2d at 500.
Similarly, in Westbrook v. State, supra, the defendant’s basic defense was insanity at the time the offense was committed. We noted that the burden of proof on the defendant was preponderance of the evidence, and that the defendant had moved for the full State Hospital records relating to his two commitments. The trial court granted the motion but the data was never furnished to him. This court stated: “Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense.” Westbrook, 265 Ark. at 745, 580 S.W.2d at 707. We concluded that “the materiality of the records has clearly been shown and the need for them was apparent.” Westbrook, 265 Ark. at 746, 580 S.W.2d at 707. In Westbrook, we granted a new trial for this and other reasons.
The trial court, with justification, was frustrated by the fact that the trial had been continued four times to allow the agency’s report to be filed. On the day of the trial, defense counsel advised the court that he had subpoenaed Dr. McAllister for trial and raised the question of what else he could have done to precipitate a report. The same question comes to my mind: What can defense counsel do when an examining psychiatrist or psychologist is recalcitrant or too busy and fails to file the required report? Here, the examining psychologist clearly knew about the trial date and the fact that the trial court had ordered that the report and backup data be filed. He simply had been unable to complete the report. Defense counsel, as a result, was hamstrung in mounting his defense and was forced, in effect, to go to trial without the benefit of the psychologist’s report, much less the underlying data which were at issue in the Hayes and Westbrook cases.
I further conclude that the report and data must be transmitted and filed before trial. Otherwise, it would be useless to both the prosecution and the defense in waging battle over the defendant’s fitness to proceed at trial and competency at time of the offense.
Here, Dr. McAllister candidly admitted that he was too busy to complete the report, that there was underlying data on which the report would be based, that one piece of outstanding information still remained to be garnered, and that he would probably have the report filed in two to three weeks. A one-sentence hand-written note from Dr. McAllister four days before trial setting forth his conclusion of competency followed by his testimony on the day of trial do not cure the obvious defect in procedure. They certainly do not rise to the stature of the report required by Ark. Code Ann. § 5-2-305 (Supp. 1995). The defense was caught up short by the failure of the examining agency to comply with the court order and state law.
One final point. I cannot say that defense counsel was dilatory in obtaining the report. In these instances, the examining psychiatrist or psychologist holds the cards. Counsel asked for continuances to buy time, including a request on the day of the trial after the jury was seated, to give him time to review the report. That was denied him. I would remand for a new trial.