author: Robert L. Brown, Justice.

text:
    Dolphus Paul PAYNE v. STATE of Arkansas
    CA CR 96-867
    937 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997

      Nelson Edward Peacock, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The Arkansas Court of Appeals has certified to this court the State’s motion to dismiss the appeal of appellant Dolphus Paul Payne. The State’s motion has merit, and we dismiss the appeal due to Payne’s failure to comply with the requirements for review of a conditional guilty plea under Rule 24.3 of the Arkansas Rules of Criminal Procedure.

The facts leading up to the State’s motion are these. On July 10, 1995, Payne was charged with DWI in violation of Ark. Code Ann. § 5-65-103 (Repl. 1993), and driving with a suspended or revoked license in violation of Ark. Code Ann. § 5-65-105 (Repl. 1993). The charging information stated that Payne was subject to enhanced punishment under Ark. Code Ann. §§ 5-65-111 & 112 (Repl. 1993), due to four prior DWI convictions. On August 29, 1995, Payne executed a Guilty Plea Statement in which he acknowledged that he was charged with at least a fourth DWI offense and with driving while his license was suspended or revoked. In Payne’s Guilty Plea Statement, a handwritten notation was added which read that he was pleading to “D.W.I. only offense unclassified.”

In circuit court at the ensuing hearing, the prosecutor proved only three prior DWI convictions. Payne challenged two of those prior convictions on the basis that he had represented himself in the respective guilty pleas and had not been adequately warned by the sentencing court of the dangers of self-representation. The circuit court, however, determined that the waivers were knowingly, intelligently, and voluntarily made and allowed the three prior DWI convictions into evidence. At the hearing, the prosecutor, circuit court, and defense attorney all appeared to contemplate an appeal on the issue of the validity of the prior DWI convictions. Nevertheless, no specific writing appears in the record reserving the right to appeal.

On April 3, 1996, judgment was entered against Payne, and one finding in the judgment read: “2. That the Defendant waived proof as to the offense of D.W.I. only, and objected to enhancement of this sentence from previous convictions.” In the judgment, the circuit court found Payne guilty of DWI, Fourth Offense, and specifically found that the three prior DWI convictions were appropriate for enhancement purposes. The judgment further provided a sentence of two years imprisonment, a fine of $2,500, and a suspension of his driver’s license for a period of three years. Payne then filed a timely notice of appeal. The State now seeks to have the appeal dismissed based on the guilty plea and the subsequent judgment and argues that Payne admitted all of the elements of the felony offense by his guilty plea. Thus, according to the State’s theory, this court is without jurisdiction to hear the appeal.

In support of its motion, the State points to the fact that this court has previously stated that prior convictions are not merely enhancers but are, rather, elements of the crime for a second, third, or fourth offense of DWI. See, e.g., Hagar, v. City of Fort Smith, 317 Ark. 209, 877 S.W.2d 908 (1994). Thus, the State urges that this appeal is an attempt by Payne to argue against some, but not all, of the elements to which he pled guilty in contravention of this court’s oft-stated position against “piecemeal” criminal appeals. Payne counters that the trial court actually made two determinations: (1) whether his conduct constituted driving while intoxicated per the immediate charge; and (2) whether the offense could be enhanced through the use of prior convictions. He further argues that these two determinations are discrete and that he is appealing only from the circuit court’s subsequent use of the previous convictions.

We agree that the appeal must be dismissed for lack of jurisdiction, though for a different reason from that presented by the State. The general law relating to appeals from guilty pleas is as follows:

The law is well settled that a defendant ordinarily does not have a right to appeal a guilty plea except as provided in Rule 24.3(b). See Ark. R. App. P.- — Crim. 1; Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993). Appeals from guilty pleas are typically dismissed for lack of jurisdiction. Scalco v. City of Russellville, supra. Rule 24.3(b) provides the only procedure for an appeal from a guilty plea. Eckl v. State, supra. But if the express terms of Rule 24.3(b) are not complied with, the appellate court acquires no jurisdiction to hear an appeal from a conditional plea. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Scalco v. City of Russellville, supra; Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). Accordingly, this court requires strict compliance with Rule 24.3(b) to convey appellate jurisdiction. Burress v. State, 321 Ark. 329, 902 S.W.2d 225 (1995).

Tabor v. State, 326 Ark. 51, 55, 930 S.W.2d 319, 321-22 (1996).

Rule 24.3 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Ark. R. Crim. P. 24.3(b) (emphasis added). This court has interpreted the highlighted language of Rule 24.3(b) to permit review of conditional guilty pleas solely with respect to adverse rulings on motions to suppress illegally obtained evidence. See, e.g., Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993)(dismissing appeal containing statute of limitations and speedy-trial arguments); Pickett v. State, 301 Ark. 345, 783 S.W.2d 854 (1990); Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989).

Indeed, in Jenkins v. State, supra, the defendant was charged with DWI Fourth Offense. He moved in limine to suppress the use of prior convictions due to lack of proper waiver of counsel. The motion was denied, and Jenkins entered a conditional plea of guilty under Rule 24.3 and appealed the trial court’s denial of his motion to suppress. This court dismissed that appeal in summary fashion, stating in part:

Jenkins’s motion in limine to suppress the use of a prior conviction as evidence is distinguishable from the suppression of evidence contemplated by Rule 24.3(b). A motion to suppress evidence presupposes that the evidence was illegally obtained. Here, we are simply dealing with the admissibility of evidence, rather than “illegally obtained” evidence. For illustrations of illegally obtained evidence, see Ark. R. Cr. P. Rule 16.2.

Jenkins, 301 Ark. at 21, 781 S.W.2d at 462 (emphasis in original).

Shortly after our decision in Jenkins v. State, supra, this court applied the Jenkins principle in a second case. See Pickett v. State, supra. In Pickett, we again dismissed an appeal from a plea of nolo contendere to DWI Third Offense and did so because the appellant was contesting on appeal the admissibility of prior DWI convictions due to ineffective waivers of counsel. We underscored once more that conditional guilty pleas and subsequent review of the court’s failure to suppress evidence pertains only to evidence illegally obtained — not to evidence wrongfully admitted.

The distinction emphasized in Jenkins v. State and Pickett v. State decides the case at bar. The present case similarly involves a plea of guilty to DWI Fourth Offense and an attempt by Payne to appeal the propriety of the circuit court’s admission of prior DWI convictions into evidence. Thus, the issue on appeal concerns the admissibility of evidence which in no wise was alleged to have been illegally obtained. Our cases, therefore, make it clear that this appeal should also be dismissed, as it falls outside the ambit of Rule 24.3.

We dismiss this appeal because it does not involve a suppression issue contemplated by Rule 24.3(b). Therefore, we need not address a second area of concern, which is whether the appeal from the conditional guilty plea was reserved in writing, as required by the rule. Suffice it to say that we have held that the reservation-in-writing requirement under the rule must be strictly followed. See, e.g., Burress v. State, 321 Ark. 329, 902 S.W.2d 225 (1995); Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993).

Appeal dismissed.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    Melvin DULANEY v. STATE of Arkansas
    CR 96-821
    937 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997

      Cortinez Law Firm, by: Christopher D. Anderson, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Melvin Dulaney was convicted by a jury of possession of cocaine with the intent to deliver, being a felon in possession of a firearm, and simultaneous possession of drugs and a firearm. For these crimes, Dulaney received a cumulative sentence of thirty-four years’ imprisonment. On appeal, Dulaney contests the sufficiency of the evidence to support his convictions for being a felon in possession of a firearm and simultaneous possession of drugs and firearms.

On May 4, 1995, a confidential informant working with the Arkansas Drug Task Force bought crack cocaine from Melvin Dulaney while inside Dulaney’s home. The police used this information to obtain a search warrant for Dulaney’s residence. On May 5, 1995, three officers from the Drug Task Force executed the warrant and found in Dulaney’s home a twelve-gauge shotgun, a .22 caliber pistol, four marijuana cigarette butts, a four-gram bag of cocaine, rolling papers, and a pager. The police also found a real estate rental contract that established that Dulaney was the lessee of the searched premises where he resided with his two daughters and his fiancee.

After a jury trial, Dulaney was convicted and sentenced to seven years for possession of cocaine with the intent to deliver, five years for possession of cocaine, five years for being a felon in possession of a firearm, and seventeen years for simultaneous possession of drugs and a firearm. We affirm the convictions and sentences.

For his sole argument on appeal, Dulaney challenges the sufficiency of the evidence to support two of his convictions; however, he did not preserve the issue for appellate review. In his motion at the end of the State’s case-in-chief, his attorney said, “At this time, I would like to make a request for a directed verdict.” At the close of all evidence, Dulaney failed to renew his motion for a directed verdict.

In order to preserve for appeal the issue of the sufficiency of the evidence, an appellant must make a motion for a directed verdict at the close of the State’s case and renew this motion at the close of all evidence presented. Tolbert v. State, 316 Ark. 671, 874 S.W.2d 371 (1994); Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994). These requirements are not only well established in case law, but are also clearly spelled out in the applicable rule that states:

"When there has been a trial by jury, the failure of the defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any questions pertaining to the sufficiency of the evidence to support the jury verdict. A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

Ark. R. Crim. P. 33.1 (1996) (emphasis added).

This court is also barred from addressing this issue because Dulaney did not make a specific motion for a directed verdict as required by Ark. R. Crim. P. 33.1. This court has held on numerous occasions that Rule 33.1 requires the appellant to make a specific, not general, motion for a directed verdict in which the appellant clearly enunciates the proof of the element of the crime that is alleged to be missing. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996).

Although Dulaney admits to his failure to make a specific motion, he asks this court to create an exception to this requirement which is found at Ark. R. Crim. P. 33.1. Specifically, Dulaney argues that this court’s strict adherence to the specific-motion requirement deprives him of his constitutional right to due process of law.

We do not address this argument as the issue was not properly preserved below nor was it argued to the trial court. We have repeatedly held that this court will not address arguments, even constitutional arguments, raised for the first time on appeal. Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996).

Affirmed.

       In his abstract and brief, Dulaney alleges that he renewed his motion for a directed verdict at the close of all' evidence presented. However, no such motion appears in the official record on appeal. On November 15, 1996, Dulaney’s attorney tendered a “Supplemental Record” which allegedly contained the renewed motion. However, Dulaney’s attorney failed to file a motion to make the tendered Supplemental Record part of the official record. Therefore, the supplemental record and Dulaney’s renewed motion allegedly contained therein are not part of the official record on appeal and cannot be considered by the court on appeal. H.A. Adams v. Owen, 316 Ark. 99, 870 S.W.2d 741 (1994).


author: Per Curiam.

text:
    Floyd D. JOHNSON v. STATE of Arkansas
    CR 96-1478
    936 S.W.2d 75
    Supreme Court of Arkansas
    Opinion delivered January 13, 1997

      L.D. Gibson, for appellant.
    No response.
   Per Curiam.

Appellant, Floyd D. Johnson, by his attorney, L.D. Gibson, has filed a motion for rule on the clerk. The Clerk refused to docket the record concerning Mr. Johnson’s conviction because it revealed that the notice of appeal was filed before Mr. Johnson’s motion for new trial was deemed denied. Mr. Gibson accepts responsibility for the failure to file a timely notice of appeal. We treat the motion for rule on the clerk as motion for belated appeal in this instance.

Failure of counsel to perfect an appeal for a defendant who wishes to appeal constitutes good cause for granting a belated appeal. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is granted.

A copy of this opinion will be sent to the Committee on Professional Conduct.


author: David Newbern, Justice.

text:
    O.C. RAWLS v. STATE of Arkansas
    CR 96-322
    937 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

O.C. Rawls was convicted of delivery of cocaine and possession of marijuana. Ark. Code Ann. § 5-64-401 (Supp. 1995). He was sentenced as an habitual offender to imprisonment for sixty years on the delivery count and one year and a $1000 fine on the possession count. Defense counsel moved for a directed verdict at the conclusion of the State’s evidence, citing inconsistencies and alleged deficiencies in the proof concerning delivery of cocaine and contending marijuana would not have been found but for the unproven allegation of delivery of cocaine. Mr. Rawls contends the Trial Court erred in overruling his directed-verdict motion. He also argues error in the Trial Court’s allowance of cross-examination of a defense witness with respect to Mr. Rawls’s past criminal history.' We hold the evidence was sufficient to go to the jury and that the evidence of prior offenses was properly admitted into evidence in response to character evidence introduced by the defense.

Three undercover detectives drove to a corner where they were approached by Mr. Rawls. Detective Trotter testified that she asked him what he had, to which he replied asking what she needed. She said she needed a “twenty.” Mr. Rawls handed her an off-white, rock-like substance, later identified as cocaine. She handed him a twenty-dollar bill.

After the three officers left, other officers with whom the three were in radio contact appeared and arrested Mr. Rawls on the basis of a description provided by Detective Trotter. They were unable to find the twenty-dollar bill but did find in Mr. Rawls’s pocket a cigarette containing marijuana and cocaine.

i. Sufficiency of the evidence

There was some confusion about the date of the transaction in the testimony of the detectives, and there was some variance in the descriptions they gave of the clothing Mr. Rawls wore on that date.

Inconsistencies in testimony do not cause proof to be insufficient as a matter of law. Gray v. State, 318 Ark. 601, 602, 888 S.W.2d 302, 303 (1994). We do not consider the evidence to be insufficient for presentation to a jury when there is “unequivocal testimony identifying an accused as the offender.” Id. The testimony of one eyewitness is sufficient to sustain a conviction. Luckey v. State, 302 Ark. 116, 118, 787 S.W.2d 244 246 (1990). Detective Trotter was an eyewitness whose testimony was indeed unequivocal in identifying Mr. Rawls as the person from whom she purchased the cocaine. The other two detectives also positively identified Mr. Rawls as the person they saw sell the substance to Detective Trotter.

The evidence was sufficient to sustain the jury’s verdict and the judgment with respect to the delivery conviction. As the argument on the possession conviction seems to be based on the allegation that the delivery conviction was improper, and we hold to the contrary, we need not address the possession point further.

2. Character evidence

Mr. Rawls presented testimony of a postman, Mr. Perkins, who delivered mail in the neighborhood where Mr. Rawls was arrested. The apparent primary purpose of the testimony was to present an alibi, as the postman testified Mr. Rawls was walking with him on his route at the time the offense was alleged to have occurred. In addition, however, Mr. Rawls’s counsel asked Mr. Perkins if he had ever known Mr. Rawls to be in any trouble. Mr. Perkins replied in the negative and said he was shocked by the allegation that Mr. Rawls had sold cocaine. He opined that Mr. Rawls was a “nice, very intelligent young man.” The questions and responses clearly placed in issue the character of the accused. Clark v. State, 292 Ark. 69, 73-74, 727 S.W.2d 853, 855 (1987); Wilburn v. State, 289 Ark. 224, 229, 711 S.W.2d 760, 762 (1986).

The prosecutor then asked Mr. Perkins if he knew of Mr. Rawls’s past criminal history, to which Mr. Perkins replied equivocally but admitted he knew Mr. Rawls had been in trouble. Additional questions were asked whether knowledge that Mr. Rawls had been in serious trouble might change Mr. Perkins’s opinion of Mr. Rawls to which he responded “not really” and pointed out that he might have a “different perspective.”

As counsel’s questions to Mr. Perkins placed the character of Mr. Rawls in issue, Ark. R. Evid. 404(a) permitted the State to offer other evidence of Mr. Rawls’s character to rebut the character evidence offered by the defense. Evidence of an accused’s character offered by the State is admissible under Rule 404(a) “to rebut character evidence offered by an accused.” Rank v. State, 318 Ark. 109, 115, 883 S.W.2d 843, 846 (1994).

A criminal defendant who presents a character witness “opens the door which would otherwise be closed. If he wants us to know what his reputation is, we must be able to determine the witness’ awareness of the relevant facts.” Reel v. State, 288 Ark. 189, 191-92, 702 S.W.2d 809, 811 (1986). See also Gooden v. State, 321 Ark. 340, 342, 902 S.W.2d 226, 227 (1995).

Affirmed.


author: Tom Glaze, Justice.

text:
    Charles MARTIN v. STATE of Arkansas
    CR 96-526
    936 S.W.2d 75
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      Robert Meurer, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The court of appeals certified this appeal to us because it involves the interpretation and construction of Ark. Code Ann. § 12-9-303(a) and (b) (Repl. 1995), as that statute establishes the scope of an auxiliary law enforcement officer’s authority.

Factually, this case arises from auxiliary officer Danny Hill’s observation of appellant Charles Martin driving his pickup truck too fast around a curve and causing the truck to slide into a telephone pole, breaking the pole in half. Hill was not on duty at the time, but he radioed the sheriffs office and told the office dispatcher about the accident, and advised the dispatcher that he would check to see if anyone was hurt. Hill then saw the vehicle backup and drive off. He radioed the sheriff s office, again, contacting Deputy Sheriff Roy Smith, who instructed Hill to follow the truck and not let it get away. Hill followed Martin’s vehicle until it pulled into a driveway. When Hill pulled in behind Martin’s pickup, Martin departed his truck and started to “take off,” but Hill held him until Deputy Smith arrived on the scene.

Martin was arrested and charged with (1) refusing to submit to a breathalyzer test, (2) DWI second offense, and (3) leaving the scene of an accident. Martin was convicted in municipal court, and he appealed to circuit court where he moved to suppress the evidence, arguing his arrest by Hill was unlawful because Hill was not acting under legal authority. The circuit court denied Martin’s motion, and afterwards, he was convicted of all three charges. On appeal, his sole point for reversal is that the trial court erred in denying his motion to suppress and in finding Hill was validly performing an “assigned duty” at the time of Martin’s arrest.

Martin relies upon § 12-9-303 which in relevant part provides as follows:

(a) An auxiliary law enforcement officer shall have the authority of a police officer as set forth by statutes of this state when the auxiliary law enforcement officer is performing an assigned duty and is under direct supervision of a full-time certified law enforcement officer.
(b) When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.

Martin does not contend Hill was not acting under the direct supervision of a full-time law enforcement officer. Instead, relying largely on provision (b) above, Martin argues Hill was not on duty or patrol when he observed Martin’s accident; nor was he on an assigned duty as an auxiliary police officer. Martin further points to Hill’s testimony where Hill conceded that he (and his wife) was en route to a restaurant, was not in uniform or in a police car, and had not previously been assigned to do anything as a police officer. Martin argues that, because Hill was not performing an assigned duty when he observed Martin’s actions, Hill had no more authority than a private citizen who cannot make a misdemeanor arrest, such as the one made of Martin. See Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1986).

In reading provisions (a) and (b) above, we find no language that requires that the auxiliary officer be “on' duty” before he or she could be authorized and activated to perform law enforcement functions. Both Hill and Deputy Sheriff Smith testified that auxiliary officers for the White County Sheriff s Office are not assigned regular work hours, but instead, are required to work at least sixteen hours a month and report into the supervisory officer whenever they can work and receive assignments. Smith stated that auxiliary officers can be called out at any time in unusual situations. In fact, it is these type of situations, we believe, the General Assembly had in mind when it provided for auxiliary officers to assist the primary police force in Arkansas communities.

Here, supervising officer Smith specifically assigned Hill the duty to follow Martin’s pickup after Hill saw the pickup leave the scene of the accident. Hill followed the assignment that Smith gave him until Smith arrived at the destination where Hill had intercepted and was holding Martin. Because we conclude auxiliary officer Hill’s actions were in compliance with § 12-9-303(a) and (b), we affirm.


author: Donald L. Corbin, Justice.

text:
    Bobby Joe MULLINAX v. STATE of Arkansas
    CR 96-571
    938 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Bobby Joe Mullinax was found guilty in Springdale Municipal Court of driving while intoxicated; he was fined $300.00, ordered to pay court costs of $335.25, sentenced to one day in jail, had his driver’s license suspended for ninety days, and was ordered to complete an alcohol safety program at the Ozark Guidance Center. He appealed to Washington County Circuit Court and moved to suppress the evidence gathered against him on the basis that it was obtained at an unconstitutional roadblock. After conducting a hearing on Appellant’s motion to suppress, the circuit court denied the motion; Appellant then entered a conditional plea of guilty, with the State’s consent, in accordance with A.R.Cr.P. Rule 24.3(b). The circuit court entered a written amended judgment indicating that the entry of Appellant’s plea of guilty was conditioned on his right to appeal the suppression issue and sentencing Appellant to pay the Springdale Municipal Court a fine of $250.00 and court costs of $335.25. The amended judgment also ordered Appellant to pay court costs of $67.75 to the Washington County Sheriff, suspended his driving privileges for ninety days, ordered him to comply with the recommendation made by the Ozark Guidance Center, and sentenced him to one day in jail.

The Arkansas Court of Appeals heard Appellant’s appeal of the suppression issue and affirmed the circuit court. Mullinax v. State, 53 Ark. App. 176, 920 S.W.2d 503 (1996). We granted Appellant’s petition for review of that decision. When this court grants a petition for review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996); Armer v. State, 326 Ark. 7, 929 S.W.2d 705 (1996). Upon such review, we find no error in the circuit court’s denial of Appellant’s motion to suppress and affirm the judgment.

On appeal, Appellant contends the roadblock was unconstitutional under the Fourth Amendment to the United States Constitution and Article 2, Section 15, of the Arkansas Constitution of 1874. The trial court ruled the roadblock was constitutional because there was no profiling of vehicles, rather every vehicle was stopped and every fifth vehicle was detained for a more detailed check not lasting more than two minutes. Upon review of a trial court’s denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances; we view the evidence in the light most favorable to the appellee, and we reverse the trial court’s ruling only if it is clearly erroneous or against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).

For the sake of convenience, we recite the evidence as it was accurately reported by the court of appeals:

The appellant was stopped at a roadblock on August 11, 1994, conducted by Springdale Police Officers Mike Bell and Mike Peters. Lieutenant John Lewis, supervisor and shift commander in charge at the time, authorized the roadblock, approved the site, and gave Officer Bell instructions on how to proceed. Lieutenant Lewis testified that he had previously participated in numerous roadblocks. He testified that he instructed the officers not to profile certain cars or certain people, and not to stop the cars at random. He testified that the officers had a set procedure on how they were going to conduct the roadblock and that he confirmed the plan.
The roadblock was set up in a road construction area near a junior high school where traffic was restricted to two lanes and the speed limit was reduced to thirty miles an hour. There had been reports of reckless driving and speeding in that area. Officer Bell testified that there were barrels guiding the traffic through the particular area and that they adjusted the barrels and their vehicles to facilitate the traffic flow. He testified that drivers had to negotiate the barrels before they set up the roadblock and that their presence increased visibility to the area. The officers carried flashlights and wore bright orange reflective safety vests with the word “POLICE” on them in large letters. The blue lights and headlights were activated on the two police vehicles utilized in conducting the roadblock.
Officer Bell testified that the purpose of the roadblock was to check the sobriety of the drivers and to check for valid vehicle registration, driver’s licenses, and insurance. He further stated that the purpose of the roadblock was discussed with Lieutenant Lewis. Every vehicle approaching the roadblock was stopped for a period of no more than thirty seconds, and every fifth vehicle was stopped for a more detailed check that lasted less than two minutes. Officer Bell testified that they explained to every vehicle what they were doing and asked every fifth driver for his driver’s license, registration, and insurance. The officers called in the driver’s license numbers and the radio operator informed them if the licenses were valid and if there were any outstanding warrants. The radio dispatch logs indicated that the officers called in to check eighteen drivers’ licenses during the roadblock, which lasted for approximately one hour.
Officer Bell testified that he noticed the odor of intoxicants coming from the appellant’s vehicle and on the appellant’s breath when he stopped at the roadblock. He further testified that he saw a plastic cup in the console of the vehicle containing some ice and liquid. He stated that the appellant’s vehicle was not one of the fifth vehicles but that the appellant was detained for a further check because it appeared that he had been drinking.

Mullinax, 53 Ark. App. at 178-79, 920 S.W.2d at 504-05.

It is well settled that a Fourth Amendment seizure occurs when a vehicle is stopped at a roadblock or checkpoint. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (citing United States v. Martinez-Fuerte, 428 U.S. 543 (1976)). According to Sitz, “[t]he question thus becomes whether such seizures are ‘reasonable’ under the Fourth Amendment.” Id. at 450. It is also well-settled that the permissibility of vehicle stops made on less than reasonable suspicion of criminal activity is to be judged according to the three-pronged balancing tests of Martinez-Fuerte, 428 U.S. 543, and Brown v. Texas, 443 U.S. 47 (1979). Sitz, 496 U.S. at 450. The Supreme Court enunciated the test in Brown as follows: “Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id. at 50-51.

The three factors to be weighed in this case are the State’s interest in preventing accidents caused by drunk drivers, the degree to which the State’s seizure or roadblock advances its interest, and the level of intrusion on Appellant’s individual privacy that is caused by the roadblock. First, there is no doubt as to the magnitude of the State’s interest in eradicating drunk driving. Sitz, 496 U.S. at 451. Additionally, this court has previously indicated that the purposes of checking drivers’ and vehicle licenses are permissible purposes for a roadblock, Stobaugh v. State, 298 Ark. 577, 769 S.W.2d 26 (1989), and the court of appeals has upheld the constitutionality of roadblocks held for the same purposes, Camp v. State, 26 Ark. App. 299, 764 S.W.2d 463 (1989). Second, the level of the intrusion on the motorist is slight. Each motorist was stopped for anywhere from thirty seconds to no more than two minutes. The blue lights of the police vehicles and the orange vests worn by the officers offered indicia of governmental authority and made the roadblock clearly visible. The roadblock was held in a well-traveled area near a junior high school. Therefore, there was no “fear and surprise” to law-abiding motorists. Martinez-Fuerte, 543 U.S. at 558. Third, the degree to which the roadblock advanced the state’s interest is sufficient. The officers did not make random stops with unfettered discretion, but held a fixed roadblock, in an area where travel was already limited to thirty miles per hour, that was authorized by the shift commander and followed the guidelines of stopping every car and then inquiring further of every fifth car as to the driver’s license and registration. Of the eighteen drivers’ licenses that were checked, one arrest was made. Although a searching examination of effectiveness is not required, this rate of effectiveness is sufficient. See Sitz, 496 U.S. at 454-55. Accordingly, we conclude that the roadblock was a reasonable seizure under the Fourth Amendment and that the trial court did not err in refusing to suppress the evidence obtained against Appellant at the roadblock.

Article 2, Section 15, of the Arkansas Constitution is virtually identical to the Fourth Amendment to the United States Constitution. We thus interpret Article 2, Section 15, in the same manner as the United States Supreme Court interprets the Fourth Amendment, Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). Therefore, under the foregoing analysis used to determine this seizure was reasonable under the Fourth Amendment, we also conclude that the seizure was reasonable under Article 2, Section 15, of the Arkansas Constitution.

Appellant offers some twenty reasons why he believes this roadblock was unconstitutional. We find that the majority of these reasons are merely factors to be considered in balancing the interests at stake rather than constitutional prerequisites to a valid roadblock. See Sitz, 496 U.S. 444; Brown, 443 U.S. 47; Delaware v. Prouse, 440 U.S. 648 (1979); and Martinez-Fuerte, 428 U.S. 543. Appellant describes these factors as the effectiveness of the roadblock, availability of a less intrusive means for conducting the roadblock, failure to keep records during the roadblock, no supervision and unlimited discretion of officers conducting the roadblock, insufficient safety precautions during the roadblock, site selection of the roadblock, lack of training of officers conducting the roadblock, and lack of advance publicity of the roadblock. There are a few of Appellant’s reasons, however, that merit some discussion as follows.

Appellant contends that Article 2, Section 15, of the Arkansas Constitution requires a warrant to be issued prior to conducting a roadblock. Since the United States Supreme Court held in Martinez-Fuerte, 428 U.S. 543, that a warrant was not required in advance for the operation of a fixed roadblock, and since we interpret the Arkansas Constitution similarly to the Fourth Amendment, we conclude that no warrant was required under Article 2, Section 15.

Appellant contends that the Fourth Amendment requires a statewide administrative or statutory plan for implementing roadblocks. Appellant relies on Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994), which held that, in light of Sitz, sobriety checkpoints are unconstitutional without express authorization and implementation by a statewide governing body. We do not find Holt to be persuasive, in part due to the reasons expressed in the dissenting opinion. Holt, 887 S.W.2d at 21 (Campbell, J., dissenting). Although Sitz did involve a comprehensive statewide program with guidelines for implementing sobriety checkpoints, we do not interpret the Sitz decision as holding that a statewide program is a prerequisite to instituting a constitutional roadblock. For other courts so concluding, see Davis v. Kansas Dep’t. of Revenue, 252 Kan. 224, 843 P.2d 260 (1992), and cases cited therein at 252 Kan. at 229-30, 843 P.2d at 263.

Appellant also contends that the lack of a plan or program at the Springdale Police Department allowed the officers to impermissibly exercise discretion while implementing the roadblock. The Supreme Court stated in Brown:

A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U.S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562 (1976).

Brown, 443 U.S. at 51 (emphasis added). Based on the testimony in this case regarding the field officers’ discussion of the particular procedures and location for this roadblock with their superior officer, we conclude there was a “plan embodying explicit, neutral limitations on the conduct of individual officers.” Id. The fact that the plan was not a statewide written plan does not convince us that the balance weighs in favor of Appellant.

Appellant argues further that the lack of a comprehensive statewide program could cause a potential problem in Spring-dale due to the overlapping jurisdictions of numerous law enforcement agencies in the area. We do not address this argument because there is no evidence that such a problem occurred in this case, and we do not issue advisory opinions. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995).

Appellant also contends that because he was not one of the fifth cars systematically detained for further inquiry during the roadblock, there was insufficient cause to detain him. Appellant acknowledges that Officer Bell testified that he smelled intoxicants on Appellant’s breath and that he observed an open container in the console of Appellant’s vehicle, but contends this is not a sufficient level of individualized suspicion to remove a motorist from the roadblock for further inquiry.

We could not disagree more. The Supreme Court held in Martinez-Fuerte, 428 U.S. at 563, that it is constitutional to refer motorists selectively to a secondary inspection area at a fixed checkpoint on the basis of criteria that would not sustain a roving-patrol stop. Officers should have wide discretion in selecting motorists to be diverted for brief questioning. Id. at 563-64. Here, the roadblock was lawfully conducted. The smell of intoxicants coming from Appellant’s vehicle and on Appellant’s breath and the sight of a container of liquor and ice in the console of Appellant’s vehicle constituted articulable facts to support the officers’ individualized suspicion that Appellant was driving while intoxicated. Thus, it was constitutional for Appellant to be removed from the roadblock for further inquiry even though his was not one of the fifth vehicles.

Appellant contends there was no legal authority to detain a driver while passengers were checked for outstanding warrants because such a detention has no relation to deterring or detecting unlicensed drivers or vehicles. This argument is based upon Officer Bell’s testimony that if a vehicle contained passengers, the passengers would have been made to identify themselves and to a warrant check. Appellant does not contend that he was detained as a result of a warrant check on a passenger in his vehicle. Accordingly, we do not address this issue further as to do so would be to issue an advisory opinion. Banks, 322 Ark. 344, 909 S.W.2d 634.

In summary, considering the totality of the circumstances, Appellant has not demonstrated that the officers conducting the roadblock in this case committed any prohibited acts such as profiling cars or stopping them at random. Appellant’s expectation of privacy was not invaded solely at the unfettered discretion of the field officers; rather, the officers acted pursuant to a plan for a fixed checkpoint that was approved by their shift commander. Appellant has therefore failed to demonstrate any violation of the Fourth Amendment to the United States Constitution or Article 2, Section 15, of the Arkansas Constitution or any prejudice.

The judgment of conviction is affirmed.


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    Walter Anthony WEBB v. STATE of Arkansas
    CR 96-220
    938 S.W.2d 806
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      McDaniel & Wells, P.A., by: Phillip Wells, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Walter Anthony Webb, appeals the judgment of the Greene County Circuit Court finding him guilty of two counts of capital murder for the murders of Aurora Carney and James Graves on October 8, 1994. Appellant was tried by a jury and sentenced to life imprisonment without parole on both counts. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises three arguments for reversal: (1) That there was insufficient evidence of premeditation and deliberation to convict him of capital murder in both deaths; (2) that the trial court erred in allowing the State to present hearsay evidence of a statement made by Appellant to a clinic nurse; (3) and that the trial court erred in refusing to grant a mistrial when a law enforcement officer testified about what Appellant had told him concerning Carney’s participation in witchcraft and voodoo. We do not reach the merits of Appellant’s first point due to a procedural bar, and we find no merit to the remaining arguments and affirm the trial court’s judgment.

I. Facts

The evidence presented at trial revealed the following facts. On Sunday morning, October 9, 1994, Ginger Sain went to her father’s apartment in Rector, Arkansas, to check on his welfare. When she arrived at the apartment, she unexpectedly discovered her father, James Graves, lying on his back on the floor with blood coming out of his nostrils and an unknown woman, later identified as Aurora Carney, sitting slumped over in a chair. Mrs. Sain contacted her husband and then contacted the paramedics and the police. The paramedics confirmed that Graves and Carney were dead. The state medical examiner later determined that Carney died as a result of a single gunshot wound to the left side of her head and that Graves died as a result of two gunshot wounds to the head, one on either side.

The same day the bodies were discovered, Investigator Steve Huddleston, of the Arkansas State Police, conducted an interview with Appellant. At trial, Huddleston testified that when he informed Appellant that Carney, who was Appellant’s fiancee, was dead, Appellant seemed to be in shock. Huddleston stated that Appellant’s response was, “In a car accident?” Upon being informed by Huddleston that Carney had been murdered, Appellant began supplying the officer with the names of several men who might commit such a crime, one of whom had allegedly been blackmailing Carney. Appellant told the officer that he had not seen or heard from Carney since Thursday, October 6, 1994.

Investigator Huddleston interviewed Appellant again three days later on October 12, 1994. Appellant stated that he loved Carney and that they had planned to be married. Huddleston testified that those were the only complimentary things Appellant said about his future wife and that Appellant then proceeded to speak of Carney’s drunkenness and of fights and conflicts between the couple. Appellant informed the officer that Carney was a member of a necromanic society, which Appellant described as a “book of death society,” and that Carney was interested in witchcraft and voodoo. Appellant further stated that Carney actually had a voodoo doll constructed to represent her ex-husband and that she had buried the doll in her backyard as a ritualistic act of her desire to see her ex-husband dead. Again, as in the first interview, Appellant offered no information about the killings, although he later admitted to being present when the deaths occurred.

Appellant left the state of Arkansas on October 13, 1994, the day after his second interview with the police. On October 21, 1994, and again on October 26, 1994, Appellant called his friend, Judy Quigley, and informed her that he had been at Graves’s apartment on the night of the murders and that Graves had shot Carney. Appellant told Quigley that he had struggled with Graves over the gun and killed Graves in self-defense, shooting him once in the stomach and once in the head.

Susan Elliott, Appellant’s ex-wife, testified that she, too, had received telephone calls from Appellant during the time he had removed himself from the state, in which he informed her of his participation in the deaths of Graves and Carney. In describing the struggle that took place between himself and Graves, Appellant told Elliott that after he wrestled the gun away from Graves, “I did the fatal deed. I took the gun and I shot him in the head.”

Dr. Charles Sturner, Chief Medical Examiner at the Arkansas State Crime Laboratory, testified that the gunshot wound to the left side of Aurora Carney’s head was a contact or near-contact wound. Dr. Sturner further stated that the wound to Aurora Carney’s head was consistent with an “execution” wound because the wound was inside the left ear, which indicated that the gun would have had to have been held either against or extremely close to a vital organ, in this case the head and neck area. Dr. Sturner described a similar gunshot wound to the left side of James Graves’s head, as well as an additional gunshot wound on the right side of Graves’s head. Dr. Sturner stated that either shot in and of itself would have been fatal and that a second shot was not necessary to ensure the victim’s death. Regarding the gunshot wound to the left side of Graves’s head, Dr. Sturner stated that the gun would have actually been placed in close proximity to the head. As for the wound on the right side of Graves’s head, Dr. Sturner stated that the gun would have been a little farther away, approximately six inches or less from the head. Dr. Sturner stated further that it was possible that the superficial injuries to Graves’s hands could have resulted from his being shot and falling to the ground. Finally, contrary to Appellant’s version of the night’s events, Dr. Sturner stated unequivocally that there was no gunshot wound to Graves’s stomach.

Gary Lawrence, a criminalist with the trace evidence section of the Arkansas State Crime Laboratory, tested the gun that was used in the murders and conducted tests for the presence of gunshot residue on the hands of both victims. Lawrence stated that he found gunshot residue on the hands of James Graves. Lawrence stated that when gunshot residue is found on a person, it means that the person has either fired a gun, or has been in close proximity to the firing of a gun, or has been in a gunshot residue environment. Lawrence testified that he found that the residues from the test-firings of the murder weapon conducted at the crime lab were higher than the residues found on Graves’s hands. Lawrence stated that the test-firing was representative of someone who had fired the gun and that the residues on Graves’s hands were not consistent with that.

Appellant took the stand in his own defense and testified that during the evening of Friday, October 7, 1994, he had made numerous attempts to contact Carney. He stated that when he left his bookstore in Blytheville, Arkansas, just after 12:00 a.m. on Saturday, October 8, 1994, he went to Carney’s home in Kennett, Missouri, to see if she had left him a message. Appellant stated that when he noticed her car was not in the driveway, he became curious as to Carney’s whereabouts, because she had told him on Friday that she was going to a Alcoholics Anonymous retreat and that she would be riding with another person. Appellant stated that he left Carney’s house and drove to Graves’s apartment in Rector because he thought Carney might be there. Appellant arrived sometime around 2:00 a.m., and, after having seen Carney’s car parked in the alleyway, he went to the door of the apartment and shook the door until Graves answered the door. Appellant stated that when he was let into the apartment, he took a set of keys belonging to Graves out of the door lock, because he did not want to get locked inside in the event there was trouble.

Appellant testified that he did not bring a gun to the apartment but that it was Carney who initially secured the gun, which belonged to Graves, and pointed it at Appellant while threatening to shoot him. Appellant stated that he convinced Carney to give him the gun, which he set down on a nearby suitcase, and that she had decided to leave with him when Graves picked up the gun. Appellant stated that Graves began waving the gun around in the vicinity of Carney, and that the gun went off, shooting Carney in the head. Appellant stated that he then began to struggle with Graves over the gun, and that ultimately, he had shot Graves once in the stomach and once in the head in self-defense.

Appellant stated that when he realized Carney and Graves were both dead, he left the apartment. He stated further that when he got into his van, he realized he had left the gun in the apartment and he went back in and got the gun. Appellant stated that he later drove to Burdette, Arkansas, and threw the gun off a bridge into the water. Appellant stated that before he disposed of the gun, however, he emptied the shells and threw them in an area near the edge of the bridge. Appellant stated that he then drove to another bridge and disposed of Graves’s keys.

On cross-examination, Appellant stated that he was forty-one years old at the time, stood over six feet tall, weighed over 240 pounds, and was nearly a black belt in judo. Appellant stated further that Graves was sixty-four years old, stood five feet ten inches tall, and weighed a litde over 150 pounds. Appellant admitted that he did nothing to help either victim after they had been shot and that he later lied to the police. He admitted further that, although he was in shock, he had the forethought to go back and retrieve the gun from the apartment and dispose of it along with Graves’s keys. Appellant admitted that the day after his second interview with the police, he left the state and did not return for almost three months. Appellant admitted that after he fired the shot that he said entered the stomach area of Graves’s body, Graves’s hands went down to the ground and he was no longer struggling with Appellant for the gun. Lastly, Appellant admitted that it was after Graves had stopped struggling that he shot Graves in the head.

II. Evidence of Premeditation and Deliberation

Appellant argues on appeal that there was insufficient evidence presented at trial to sustain a finding that Appellant acted with premeditation and deliberation in the deaths of Aurora Carney and James Graves. The State contends that we should affirm this point on the ground that Appellant’s motion for directed verdict was not sufficiently specific in violation of A.R.Cr.P. Rule 33.1 and this court’s recent case law. We agree with the State and thus we do not reach the merits because Appellant failed to preserve this argument in the trial court.

At the close of the State’s case, Appellant’s attorney made the following motion:

Your Honor, the defendant Anthony Webb would move for a directed verdict of acquittal, stating that the State has not provided a prima facie case of capital murder against Anthony Webb and makes a motion that the Court enter a finding of a directed verdict of acquittal on the charges of capital murder both as to Aurora Carney and James Graves and further wants to reallege and readopt the arguments and the contention about the admissions as previously made.

The trial court denied the motion and Appellant then presented his defense, consisting of testimony from himself and two other witnesses. At the close of all the evidence, Appellant’s attorney stated:

Your Honor, at this time the defense would renew its motion for a directed verdict of acquittal indicating that the State has not provided prima facie evidence of the defendant’s guilt of capital murder of either Aurora Carney or James Graves.

Again, the trial court denied the motion.

Arkansas Rule of Criminal Procedure 33.1 provides:

When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal of a previous motion for a directed verdict at the close of all of the evidence preserves the issue of insufficient evidence for appeal. [Emphasis added.]

Recently, in Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996), this court had occasion to address this issue. Lovelady contended the evidence was not sufficient to sustain the conviction. At the end of the state’s case-in-chief, his attorney stated, “‘[T]he defense would move that the charges against the defendant be dismissed on the basis that the State has failed to meet its burden of proof.’” Id. at 197, 931 S.W.2d at 431. This court held:

We have made it clear that the proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). “The reason underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.” Id. at 109, 883 S.W.2d 831 at 832 (quoting Brown v. State, 316 Ark. 724, 726, 875 S.W.2d 828, 830 (1994)). Here, Lovelady did not specify the proof alleged to be insufficient; consequently, the issue was not preserved for appellate review.

Id. at 197-98, 931 S.W.2d at 431-32. Here, Appellant’s motion was nothing more than a general motion based on insufficient evidence and did nothing to inform the trial court of the allegedly missing proof.

In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), relied upon by the court in Lovelady, this court stated that “[w]e draw a bright line and hold that a motion for a directed verdict in a criminal case must state the specific ground of the motion.” Id. at 109, 883 S.W.2d at 832. Appellant argues that his directed-verdict motion was sufficient in this case because it was obvious to the trial court that he was challenging the State’s evidence of premeditation and deliberation on both counts. Evidence of Appellant’s state of mind is but one element of the offense of capital murder; causation of the death of another person must also be proved. How then, in this particular instance, was it obvious to the trial court that Appellant was only attacking the alleged deficient proof of premeditation and deliberation when Appellant had additionally maintained that he had not even caused the death of Aurora Carney? Appellant’s directed-verdict motion was thus insufficient to properly apprise the trial court of the alleged missing proof.

Appellant argues alternatively that this court is nonetheless compelled to address the merits of the point pursuant to Ark. Sup. Ct. Rule 4-3(h). That rule requires that, “[w]hen the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. Sec. 16-91-113(a)Ark. Code Ann § 16-91-113(a) (1987) provides that, “[t]he Supreme Court heed only review those matters briefed and argued by the appellant, except that, where either a sentence for life imprisonment or death has been imposed, the Supreme Court shall review all errors prejudicial to the rights of the appellant.”

While it is true that Rule 4-3 (h) requires us to review the record for error in life and death cases, this review presupposes that an objection was made at trial. See Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). In Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996), the appellant had been convicted of capital murder and sentenced to life imprisonment without parole. This court nonetheless held:

It is well-established that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the directed-verdict motion is made. Neither appellant’s original directed-verdict motion nor his renewal motion indicates that any specific deficiency in the evidence was called to the trial court’s attention. Because there was a failure to raise the specific basis for a directed verdict at trial, appellant cannot now challenge the sufficiency of the evidence on appeal.

Id. at 658-59, 916 S.W.2d at 738 (citations omitted). Thus, because Appellant failed to make a specific motion for directed verdict indicating the particular deficiencies in the State’s proof, it is as if he failed to object at all, and that failure below precludes our review of the sufficiency of the evidence on appeal. We thus affirm as to Appellant’s first point.

III. Appellant’s Spontaneous Admission

For his second point on appeal, Appellant argues that the trial court erred by allowing the State to introduce hearsay evidence of a spontaneous statement made by Appellant to a nurse who was drawing a sample of his blood. The conversation took place at the Piggott Clinic where Appellant had been taken by officers to have samples drawn pursuant to court order. During the suppression hearing below, the nurse, Donna Ray, stated that when she was drawing blood from Appellant’s arm, Appellant commented on how painless the procedure was and that he would like for her to be the one to give his lethal injection.

Don Poole, one of the officers who had transported Appellant to the clinic, testified that he, too, was present when Appellant made the statement to the nurse, and that he remembered Appellant stating that if he got the lethal injection, would she (the nurse) be the one to administer it. Jerry Brogdon, the other officer who had accompanied Appellant to the clinic, testified that to the best of his recollection, Appellant stated, “I did not feel a thing when she stuck the needle in my arm. When it comes time to do the lethal injection, I want her to administer the needle.” Brogdon stated further that he recalled Appellant stating that, “It may come to that. It may not.”

Appellant testified that the statement he made was one in jest, in an attempt to relieve the nurse’s apparent nervousness. Appellant recalled telling the nurse that the injection was absolutely painless and that a lethal injection would not be so bad if she was the one administering it. Appellant maintained that he made the statement as a joke and that he did not believe he was going to receive a lethal injection because he was innocent of the crimes. The trial court found the statement to be an admission under A.R.E. Rule 801(d)(2) and that it was up to the jury to decide whether the statement was made seriously, indicating some guilty knowledge of the homicides, or as a joke.

Appellant asserts on appeal that the statement was hearsay and was not a proper admission as provided in Rule 801(d)(2) because he never manifested his belief in the truth of the statement. The State argues that the statement was relevant as evidence of Appellant’s consciousness of his guilt of the crimes and that the statement was an admission by a party opponent as provided in Rule 801(d)(2)(i). A trial court is accorded wide discretion in evidentiary ruhngs and will not be reversed on such ridings absent a manifest abuse of discretion. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Relevant evidence means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id.; A.R.E. Rule 401. A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Misskelley, 323 Ark. 449, 915 S.W.2d 702; Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993).

Rule 801(d)(2) provides in part that a statement is not hearsay if:

[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. [Emphasis added.]

Appellant’s reliance on subsection (ii) of that rule is misplaced because the statement at issue here was made by Appellant, and therefore subsection (i) clearly applies. There can be no doubt that the statement was offered by the prosecution against Appellant and that the statement was Appellant’s own words. Thus, there is no need to look beyond subsection (i) to determine whether Appellant manifested his belief in the truth of the statement, because it is evident that each subsection in Rule 801(d)(2), connected by the conjunction “or,” is an alternative way of demonstrating statements that are admissible as admissions by party opponents. See Woodward v. State, 16 Ark. App. 18, 696 S.W.2d 759 (1985). Furthermore, Appellant’s claim that the statement was inadmissible because he was joking when he said it goes not to the admissibility of the evidence, but only to its weight, which lies within the province of the jury. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). Because we conclude that the statement was not hearsay, as it was a statement made by Appellant, its admission at trial against Appellant was not erroneous.

Appellant additionally argues that the statement should have been excluded on the grounds that it was unfairly prejudicial in violation of A.R.E. Rule 403. The State argues that the statement was relevant evidence of Appellant’s consciousness of his guilt in the homicides and that the probative value was not substantially outweighed by the danger of unfair prejudice. Appellant offers no authority in support of his argument, and thus, we will not address it. This court has repeatedly held that where an appellant has cited no authority for his argument, we will not consider the merits of it. See, e.g., Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996); Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773, cert. denied, 116 S. Ct. 168 (1995).

Lasdy, Appellant argues that the admission of the statement violated his Fifth Amendment privilege against self-incrimination, because it compelled him to take the stand in his own defense in order to explain the statement. Again, Appellant provides no authority for this argument and, likewise, we will not address it. We note, however, that Appellant did file a notice of defense prior to trial stating that he would rely upon a defense of self-defense in the death of James Graves, which would virtually necessitate Appellant’s testifying in his own behalf.

IV. Mistrial

Lastly, Appellant argues that the trial court erred in refusing to grant a mistrial when Investigator Huddleston testified that Appellant had informed him that Aurora Carney was involved in witchcraft or voodoo. Appellant asserts that the trial court entered an order in limine which prohibited any witness from testifying concerning the occult, witchcraft, or related subjects, and that the State violated that order by eliciting the testimony concerning Carney’s involvement in witchcraft and voodoo. The State argued below that it was not offering the testimony to show that Carney was in fact involved in such activity, but rather to demonstrate the way in which Appellant was defaming the victim, the woman he was supposed to have loved enough to marry, only days after she had been murdered. The State further argued that the testimony that was elicited from Investigator Huddleston was outside the scope of the order because it was a statement made by Appellant himself. The trial court stated that it had recalled meeting with the attorneys on the previous day and discussing the substance of Appellant’s motion in limine in regard to Appellant’s statements to the police. The trial court ruled that the testimony would be allowed as a statement by a party opponent to show how Appellant was vilifying the woman he loved shortly after her murder.

We have often held that a mistrial is a drastic remedy which should be resorted to only when there has been error so prejudicial that justice cannot be served by continuing the trial. See, e.g., Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). A trial judge’s denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). Appellant offers no authority in support of his contention that a mistrial was warranted, nor has he demonstrated any reason why the admission of such testimony was prejudicial to him. This court will not reverse in the absence of prejudice. Misskelley, 323 Ark. 449, 915 S.W.2d 702. Furthermore, the record is devoid of any request by Appellant for any other remedy, such as an admonition to the jury. For these reasons, we cannot conclude that the trial court abused its discretion in allowing such testimony. In accordance with Rule 4-3 (h), the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


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    Willie BURTON v. STATE of Arkansas
    CR 95-1234
    937 S.W.2d 634
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      Marc Honey, for appellant.

      Winston Bryant, Att’y Gen., by:' Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Following a bench trial, appellant Willie Burton was convicted of aggravated assault and felon-in-possession-of-a-firearm. He was sentenced to a term of ten years with five suspended on the first charge and to a ten-year suspended sentence on the second charge. His two points on appeal concern the validity of his waiver of a jury trial and the admissibility of evidence relating to a previous conviction for forgery and to prior bad acts. The case was certified to this court by the Arkansas Court of Appeals because of the jury-trial issue. We affirm the trial court’s judgment.

On July 31, 1994, Burton and other members of a motorcycle club named the Hornets were sitting on their motorcycles in front of the home of Gloria Mask in Magnolia. She had asked the club members to leave. Terry Cooper, while driving his mother’s van, attempted to drive around the motorcycles and bumped one of them. Gloria Mask observed Burton pull a pistol and shoot at the van. Other witnesses at the bench trial confirmed the shooting. There was no evidence presented that bullets hit the van. No pistol or bullets or cartridges were recovered by the Magnolia Police Department. A gunshot-residue test performed on Burton was negative. Burton’s defense was that no gunshots were fired and that the sounds heard by the State’s witnesses were caused by backfiring motorcycles.

Burton first complains that he did not properly waive his right to a jury trial because the waiver was not in open court or in writing as required by Ark. R. Crim. P. 31.2. The facts surrounding the waiver are these. Prior to commencement of trial and either during or after jury selection, a hearing was held in the judge’s chambers. The reason for the hearing in chambers, according to Burton’s counsel, was that he did not want the jury panel to overhear, and thus be prejudiced by, Burton’s verbal statements to him. Apparently, the subject of Burton’s statements in the courtroom was his reluctance to have his case tried to a jury. Once in chambers, Burton made it absolutely clear that he wished to have his case tried to the circuit judge and not the jury because he feared a jury would “automatically” conclude he was guilty and “railroad” him. The trial court admonished Burton that he was “giving up one of the most precious rights that anybody has in this country.” Burton concluded that he wanted to take his “chances” with the trial judge. The judge then dismissed the jury, and a bench trial ensued.

The Sixth Amendment to the United States Constitution and our State Constitution guarantee an accused the right to a speedy and public trial by an impartial jury. U.S. Const, amend. VI; Ark. Const, art. 2, § 10. Our State Constitution further mandates that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury may be waived by the parties in all cases in the manner prescribed by law . . . .” Ark. Const. art. 2, § 7; See also Winkle v. State, 310 Ark. 713, 715, 841 S.W.2d 589, 590 (1992). The procedure for waiver of a jury in a criminal matter is set out in Ark. R. Crim. P. 31.2:

Should a defendant desire to waive his right to trial by jury, he may do so by either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.

Ark. R. Crim. P. 31.2 (emphasis added). See also Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); Winkle v. State, supra.

In Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993), the defendant’s counsel stood in open court and waived his client’s right to a jury with his client at his side. The rule at that time did not provide for a waiver by counsel but rather required that a defendant waive the right personally or through a writing. This court distinguished Calnan v. State, supra, and Winkle v. State, supra, in the Bolt decision for the reason that in those cases the respective records did not reflect that the accused affirmatively waived his right to a jury trial. However, in Bolt, an affirmative waiver was made by counsel with his client present. Accordingly, we held that the waiver in Bolt was sufficient. See also Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993).

In the present case, the sole reason for moving into chambers was to protect Burton from himself and from his loud pronouncements which could have tainted the jury. All parties were present in chambers as was the trial judge. The court reporter reported what transpired. The public was not excluded from the proceeding. Of course, the circuit judge had the option of removing the jury from the courtroom and hearing the matter there, or removing the matter to chambers. He chose the latter course of action which was the less cumbersome in that it did not require relocating the jury during the hearing. See People v. Hancasky, 410 Ill. 148, 101 N.E.2d 575 (1951) (appropriate for trial judge to take a plea of guilty and enter judgment of conviction in chambers due to seated jury in courtroom, where public not excluded from chambers).

We observe that several jurisdictions have held that a trial conducted in the judge’s chambers and not the courtroom may still be a public trial so long as the public has freedom of access. See, e.g., Caudill v. Peyton, 209 Va. 405, 164 S.E.2d 674 (1968); People v. Cash, 52 Cal.2d 841, 345 P.2d 462 (1959). See generally Place of Holding Sessions of Trial Court as Affecting Validity of Its Proceedings, 18 A.L.R.3d 572 (1968). There is, too, the point that Burton should not be allowed to cause the proceedings to shift to chambers because of his conduct and then argue that the change of location was not proper. We hold that under these facts what transpired in the trial judge’s chambers with respect to Burton’s waiver of a jury trial satisfied the requirement that the waiver occur in open court.

For his second issue, Burton complains that the prosecutor inappropriately impeached him on cross-examination (1) with references to disciplinary actions in prison while he was serving his prison term for forgery, and (2) with the forgery conviction itself. He relies on Rule 404 of the Arkansas Rules of Evidence as authority for excluding the disciplinaries which he contends are merely inadmissible prior bad acts, and Rule 609 of the same Rules as preventing cross-examination on the forgery conviction due to the expiration of ten years from the date of his release.

Neither argument is preserved for our review. First, with respect to the disciplinary actions Burton was asked on cross-examination about “at least” 50 disciplinary proceedings against him while in prison which caused him to serve more of his prison sentence. Burton answered that the prison was full of “lying folks” and then added: “I’m not denying it; I got a bunch of them, plenty of them.” At that point, his counsel objected, but Burton went on and repeated that he had gotten “a bunch of them.” A colloquy followed with counsel and the trial judge over Rule 404’s preclusion of prior bad act testimony. The prosecutor then stated that he would move on, and the trial judge thanked him. Burton, however, continued to talk about his disciplinaries. The prosecutor made reference to “a ruling,” but it is clear from the record that Burton’s counsel obtained no ruling from the trial judge on this point. It was Burton’s duty to have the trial judge rule on his objection in order to preserve this issue for our consideration on appeal. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993). His failure to do so is fatal to his appeal in this regard.

The same is true for his Rule 609 argument pertaining to impeachment by his forgery conviction. It is not preserved due to the fact that Burton did not argue to the trial judge that use of the forgery conviction for impeachment purposes was prevented because the date of his release from prison had not been proven by the prosecutor. Arguments raised for the first time on appeal are not preserved for review. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). Moreover, the date of his release from prison — 1988 — was elicited by the prosecutor from Burton on cross-examination. This point is wholly without merit.

Affirmed.


text:
    Nina Sue MATTHEWS v. STATE of Arkansas
    CR 96-415
    938 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      Paul Johnson, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is an appeal from a judgment of conviction for capital murder for which appellant Nina Sue Matthews received a sentence of life imprisonment without parole. She urges two points for reversal: (1) the trial court erred in allowing the State’s rebuttal witness, Dr. Mallory, to testify as to the legal standard for criminal insanity; and (2) the trial court erred in allowing Matthews’s custodial statements into evidence. We find no error, and we affirm.

The salient facts are garnered from trial testimony. Two “911” calls were made on December 25, 1993, in Little Rock concerning a shooting at the Matthews residence on Shackleford Road ■— one by Nina Sue Matthews herself and one by her daughter Kimberly Dill. Officer Marcus Paxton of the Litde Rock Police Department was dispatched to that residence and testified that when he arrived on the scene, he observed another officer leading Matthews, who was upset and sobbing, from the home. Inside the residence, he found the victim, David Matthews, who was the husband of Nina Sue Matthews, sitting in a recliner with his legs crossed and a pistol in his right hand. He had been shot several times and was dead. Officer Paxton approached Nina Sue Matthews, who was sitting in the back seat of a Litde Rock police car with the door open. He could tell Matthews had been drinking alcohol. The police officer asked her if she was present when the shooting took place, and she responded that she was and stated that it was her daughter’s fault, that the victim had a million dollar life insurance policy, and that “she wasn’t going to say another word.”

Dr. Frank Peretti, a forensic pathologist and medical examiner with the State Crime Lab, testified that he performed the autopsy on the victim. He testified that David Matthews had been shot three times in the chest, once in the left temple, and three times in the face with a small caliber gun. He testified that the victim’s blood-alcohol content was .16 percent.

The State next called Little Rock Police Detective Rebecca Junkins as a witness. Matthews’s counsel objected to the introduction of some of Matthews’s statements made to Detective Junkins. The prosecuting attorney urged that the statements were spontaneous and suggested that an in camera hearing be held. The trial court responded, “Go ahead,” which was a reference to continuing the trial. The testimony continued in the presence of the jury. No request for a ruling on the objection was made by Matthews’s counsel. Nor was a request made for a hearing in chambers for the trial court to determine the voluntariness of the statements pursuant to Ark. Code Ann. § 16-89-107(b)(1) (1987), and Jackson v. Denno, 378 U.S. 368 (1964).

Detective Junkins testified that she placed bags over the hands of Nina Sue Matthews in preparation for a gunshot-residue test. Detective Junkins added that Matthews “rambled” in her conversation. The detective testified that Matthews asked her why she was not allowed to go home. Matthews then began describing sex games with her husband to Detective Junkins and at one point stopped and said, “Oh, my God. Oh, my God. I must have shot him.”

Barbara Polite, a crime-scene specialist for the Little Rock Police Department, testified that she examined the crime scene. Matthews also told Polite about certain sexual activities with her husband, including wearing spurs and acting like they were shooting each other with unloaded guns. She then said, “Oh, my God. . . . The gun must have been loaded.” No objection was made by Matthews’s counsel to this statement.

There was also testimony from Matthews’s daughter, Kimberly Dill, that both Matthews and the victim had drinking problems. On Christmas Eve, the day before the killing, Matthews had been abusive to one of Dill’s children, and she and her family had left. Dill related that in visiting with her father later that day, he told her that he was going to leave Nina Sue Matthews. A second daughter, Lisa Matthews, testified that her mother told her that Dill had killed their father. There was also testimony from insurance representatives that Nina Sue Matthews stood to gain over $1 million from insurance policies and a pension plan as a result of David Matthews’s death.

In her defense, Matthews denied killing her husband for the insurance money. She asserted the affirmative defense of mental disease or defect and testified that she had received treatment for alcoholism and other disorders for 10 to 15 years. She admitted to “clicking” the gun at her husband, thinking it was empty, but then on cross-examination she stated that she heard a terrible noise after she clicked the gun and knew that she had shot her husband. She contended that it was an accident.

A psychiatrist, Dr. Kathleen Thomsen Hall, and a psychologist, Dr. Douglas Stevens, testified on Matthews’s behalf. Dr. Thomsen Hall described Matthews as suffering from depression with complications from alcoholism. Dr. Stevens told the jury that Matthews was taking Xanax, a medication for agoraphobia, depression, and anxiety, which results in a malignant combination, according to Stevens, when associated with alcohol. When one takes this combination, one can lose memory and control, the ability to distinguish right from wrong, and the ability to conform actions to the law, he stated.

The State called one rebuttal witness, Dr. Charles Mallory, a clinical psychologist. The prosecuting attorney asked him what the legal standard for criminal insanity was. Counsel for Matthews objected on grounds that the court would instruct the jury on that, but the trial court overruled the objection. Dr. Mallory testified that it was his understanding that a person is criminally insane if the person cannot appreciate the unlawful nature of his acts and cannot conform his conduct to the requirements of the law. He then opined that Matthews was not criminally insane at the time of the killing. The trial court, thereafter, instructed the jury on the law, which included an instruction on what constitutes a mental disease or defect.

For her first point, Matthews claims that it was error to allow Dr. Mallory to testify to the legal standard for criminal insanity because in doing so, the trial court clothed the witness with legal expertise and enhanced his credibility. Matthews, however, adduces no law for this proposition. This court has been careful not to consider arguments where an appellant offers no citation of authority or convincing argument and where it is not apparent without further research that the argument is well-taken. See Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Moreover, expert testimony is admissible when it will aid the jury in understanding the evidence or in determining a fact in issue. Ark. R. Evid. 702; Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Here, Dr. Mallory presented testimony in rebuttal to Dr. Thomsen Hall’s testimony and Dr. Stevens’s testimony about whether Matthews was mentally competent at the time of the shooting. It was probative for the expert to relay his opinion premised on the proper legal standard to assist the jury in determining a fact in issue, which was Matthews’s ability to conform her conduct. This was in response to Dr. Stevens’s testimony that she could not conform her conduct, when mixing Xanax and alcohol. The trial court subsequently instructed the jury regarding the law on mental disease or defect. We conclude that the trial court did not abuse its discretion in permitting Dr. Mallory to testify as he did. Stewart v. State, supra.

For her second issue, Matthews contends that the trial court should have sustained her objection to custodial statements she made to Detective Junkins and crime-scene specialist Polite under Miranda v. Arizona, 384 U.S. 436 (1966). (The statement made to Junkins was “Oh, my God. Oh, my God. I must have shot him.” The statement made to Polite was “Oh, my God .... The gun must have been loaded.”) The State counters that Matthews’s statements in both instances were spontaneous and in support of its position cites Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995).

As an initial matter, we note that Matthews’s counsel did not object to the statement made to crime-scene specialist Polite. Hence, that point is clearly not preserved for appeal purposes. Smallwood v. State, 326 Ark. 813,___ S.W.2d_(1996). Counsel for Matthews did raise a general objection to statements made by Matthews to Detective Junkins, but counsel was remiss in fading to obtain a ruling on the objection. Furthermore, counsel made no request for a Denno hearing even though the prosecutor made a suggestion that they go into chambers, ostensibly for a Denno hearing. Under these circumstances, we conclude that Matthews also faded to preserve the issue of the admissibility of statements made to Detective Junkins for our review. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).

The record has been examined for other prejudicial error in accordance with Supreme Court Rule 4-3 (h), and none has been found.

Affirmed.