Sanford Buchanan v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

SANFORD BUCHANAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-271

November 29, 2000

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. CR-98-313]

HON. LANCE HANSHAW,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with delivery of crack cocaine, a controlled substance. At appellant's bench trial, there was evidence that appellant was approached by a confidential informant, and that appellant sold the confidential informant crack cocaine. Appellant was convicted and sentenced as a habitual offender to twenty years in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that the confidential informant was an accomplice in the delivery of a controlled substance and that the accomplice's testimony was therefore insufficient to sustain appellant's conviction in the absence of corroborative evidence; that the trial court erred in denying his motion to reveal the identity of the confidential informant; that appellant was denied effective assistance of counsel; and that the trial court erred in

allowing the prosecution to proceed with habitual offender charges because appellant had not been notified of those charges prior to trial. We affirm.

Appellant's contention that the confidential informant was an accomplice and that his uncorroborated testimony is therefore insufficient to support appellant's conviction is not preserved for appeal. Rule 33.1 of the Arkansas Rules of Criminal Procedure, as amended by per curiam April 8, 1999, makes applicable to bench trials the rule requiring the defendant to notify the trial court of the particular reasons why the State's evidence is insufficient. At appellant's bench trial on September 10, 1999, he made only a general objection to the sufficiency of the evidence and made no reference to accomplice testimony. The Arkansas Supreme Court has repeatedly held that the failure of defense counsel to include accomplice testimony as a ground for a directed verdict renders the motion insufficient to preserve specific arguments for appellate review. Hutts v. State, 342 Ark. 278, ___ S.W.3d ___ (2000); Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994). Although we do not address this argument, we note that it is founded on the erroneous premise that a confidential informant is an accomplice. It is well-settled that an undercover officer or informant is not an accomplice solely because he is a buyer, and the Arkansas Supreme Court has declared that, as a matter of law, a buyer of contraband is not an accomplice of the seller. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

Appellant's argument that the trial court erred in denying his motion to reveal the identity of the confidential informant is without merit as well. Appellant did make a pretrial motion to reveal the identity of the confidential informant, but he never obtained a ruling onthis issue and permitted the confidential informant to testify without objection at trial. The situation is analogous to that presented in Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996), where the appellant argued that a witness should not have been allowed to testify because the State failed to include her name on its witness list requested in discovery. The appellant, however, did not object to the testimony until the witness had already taken the stand and answered twenty-four questions; the supreme court held that the issue was not preserved for appellate review because the appellant did not object at the earliest opportunity. Id.

Appellant's ineffective assistance of counsel argument is likewise not preserved for appeal because it was never raised at trial. In order for us to consider a claim of ineffective assistance of counsel on direct appeal, it must have been considered by the trial court. Watts v. State, 68 Ark. App. 47, 8 S.W.3d 563 (2000).

Appellant's argument that the trial court erred in allowing the prosecution to proceed with habitual offender charges because appellant had not been notified of those charges prior to trial was presented at trial. However, the record shows that an amended information was, in fact, filed with the clerk several weeks prior to trial. Appellant asserted at trial, and argues on appeal, that the State should have been barred from proceeding under the habitual offender statute because he was not served with a copy of the amended information when it was filed. However, the habitual offender act does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of theoffense charged. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). In the present case, when appellant objected to lack of notice, the trial court declined to impose a sentence immediately and instead set a sentencing hearing that was held eleven days later. At this second hearing appellant neither presented evidence not requested a continuance to enable him to do so, but merely argued lack of notice. In the absence of a request for a continuance or any demonstration of prejudice to the appellant, no reversible error occurred. Id.

Affirmed.

Hart and Meads, JJ., agree.