Milton Morris v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MILTON MORRIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-840

JUNE 8, 2005

APPEAL FROM THE SEVIER

COUNTY CIRCUIT COURT

[NO. CR-2002-116]

HONORABLE TED C. CAPEHEART,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Milton Morris was charged with first-degree murder for shooting Russell Hall during an argument over trespassing. The jury in Sevier County Circuit Court convicted him of second-degree murder. On appeal, he raises three allegations of error, asserting that: (1) there is insufficient evidence to support his conviction; (2) the trial court abused its discretion in not granting a change of venue; and (3) the trial court erred by not granting his motion to disqualify a special deputy prosecutor appointed to assist in this trial. We affirm his conviction.

With regard to the sufficiency of the evidence to convict appellant of second-degree murder, we hold that this issue is procedurally barred from appellate consideration. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). In a challenge to the sufficiency of the evidence, a defendant must inform the trial court of the specific basis for the challenge, and arguments not raised at trial will not be addressed for the first time on appeal. See, e.g., Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).

At the close of the State's case, defense counsel moved for directed verdict arguing that the State failed to present proof of premeditation and deliberation necessary to sustain a conviction for first-degree murder. Appellant did not renew that motion at the end of the defense presentation or after the State presented rebuttal. The jury was instructed, defense counsel made closing arguments, and the jury retired to deliberate. At that time, defense counsel sought to renew his motion for directed verdict, which was denied. Without a doubt, this motion came too late.

Our supreme court held in Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002), that when there has been a trial by jury, a defendant must make and renew motions for a directed verdict at the proper times to preserve the issue of insufficient evidence for appeal. Ark. R. Crim. P. 33.1 (2004); see also Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998); Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). This renewal is more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). However, after the jury has been charged, it is too late to consider a motion to direct a verdict. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Claiborne v. State, 319 Ark. 602, 603, 892 S.W.2d 511, 512 (1995). Here, defense counsel did not renew the motion for directed verdict at the close of his presentation, nor did he after the State presented rebuttal, or even after the trial court read the jury instructions. This issue is procedurally barred.

Furthermore, appellant did not challenge the State's proof regarding second-degree murder, the conviction the jury entered against him. See, e.g., Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003) (holding that in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants must address the lesser-included offenses either by name or by apprising the trial court of the elements of the lesser-included offenses questioned by their motions for directed verdict). We affirm as to this point.

Appellant next contends that the trial court erred by not granting a change of venue. We review the denial of a motion for a change of venue for abuse of discretion. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). A change of venue should only be granted when it is clearly shown that a fair trial is not likely to be had in the county. Baughman v. State, 353 Ark. 1, 9, 110 S.W.3d 740, 745 (2003). A defendant is not entitled to jurors who are totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Id. We will not reverse a denial of a change of venue motion if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Noel v. State, supra; Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994).

Appellant submitted a motion to change venue with affidavits of four persons stating that pre-trial publicity made it impossible to get a fair trial in that county. The trial judge held that motion in abeyance while potential jurors completed questionnaires, and after a hearing on that motion, he denied the change of venue. At the conclusion of voir dire, after peremptory strikes had been exhausted, appellant renewed the motion. As a result of the denial of his motions, appellant argues that he "was forced to accept jurors not of his liking" who had heard about the case, and "it was not entirely clear that the jurors could set aside their preconceived ideas and follow the instructions of the court as required by law." We disagree.

Our examination of the entire voir dire proceedings demonstrates that an impartial jury was selected. The jury selection process comprises over 100 pages in the transcript. Appellant failed to abstract the vast majority of voir dire, but we may go to the record to affirm a trial court's ruling. See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). The judge inquired of the potential jurors whether they had heard anything on the radio or read in the newspaper about this murder case; about one-third of them raised their hands. The judge stated to them:

If you're selected as a juror, you can't base your verdict on anything you've heard on the street or anything you've read in the newspaper or anything you've heard on the radio. You have to set that aside and base your verdict strictly upon what you hear in this courtroom. Is there anybody who has read anything or heard anything about this case on the radio or in any other way that would keep you from being a fair and impartial juror in this case? What I'm getting at, could you set aside what you've read or heard about this case and base your verdict strictly upon the evidence that you hear in the courtroom? Is there anybody who cannot do that? I asked you about newspaper or radio. Have any of you heard on the street anything about this case or neighbors or friends or - I see two hands, three - several hands. The same question: Can you set aside what you've heard from other people and base your verdict strictly upon the evidence if you're selected as a juror in this case? Is there anybody who cannot?

No response was recorded. As voir dire proceeded, several persons were excused by the court for personal connections with the parties or attorneys or for other reasons personal to the potential juror. Twelve jurors were drawn from this pool, and further questioning transpired.

The individual questioning invariably concluded with the query of whether that person could put aside any connection or knowledge in order to render a fair and impartial verdict. The State and defense exhausted their available strikes. When twelve jurors were selected, defense counsel renewed the motion for a change of venue on the basis that interviews with the jury pool showed that the vast majority had some knowledge of the case. The trial judge denied the motion, stating that they had selected twelve good, fair, and impartial jurors. The judge reminded counsel that they still had to select two alternate jurors, and each side could exercise one more strike. Each of the alternates was announced as "good" for the defense. At the end of the voir dire process, the judge asked whether the jury was satisfactory to the defense, and defense counsel responded, "Good for the defense." We cannot conclude that the trial judge abused his discretion in this instance because appellant did not clearly show that a fair trial was not likely to be had in Sevier County.

Appellant's final contention on appeal is that the trial court erred in failing to grant his motion to disqualify a special deputy prosecutor, who was appointed by the sitting duly-elected prosecutor, Tom Cooper, and approved by order of the circuit court. The appointed person, Randy Wright, was a former deputy prosecutor in that county. Appellant alleged in the motion filed prior to trial that Randy Wright was a personal friend of the victim's family and that to appoint him to assist had the appearance of impropriety and posed a conflict, violating the Model Rules of Professional Conduct in taking this appointment. On appeal, appellant adds to his argument by stating that the circuit judge had no authority to appoint this special prosecutor under these circumstances, and further that he was prejudiced by attorney Wright taking a leading role in this prosecution.

This issue is not preserved for appellate review because appellant never obtained a ruling on his motion to disqualify. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998); Jordan v. State, 323 Ark. 628, 632, 917 S.W.2d 164, 166 (1996). We will not review a matter on which the trial court has not ruled; a ruling should not be presumed. Vaughan v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). Matters left unresolved are waived and may not be raised on appeal. Id. Therefore, appellant has failed to preserve this issue for appeal.

Even were we to consider the merits of this argument presented in the motion, which was limited to allegations of violating the Model Rules of Professional Conduct,1 it would fail to support reversal. Appellant's challenge to attorney Wright's participation is a collateral attack, and as such, cannot be maintained under the law. See Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Moreover, assuming for the moment that appellant's attack was not collateral, there was no resulting prejudice. Former deputy prosecutor Wright stepped into place for an ailing deputy prosecutor, he was introduced as such during voir dire, and the jury pool was questioned extensively about knowledge of or connection to the attorneys during voir dire. We will not reverse absent a showing of prejudice. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996).

We affirm.

Glover and Neal, JJ., agree.

1 The additional arguments raised in the appellate brief regarding whether the trial court was empowered to appoint a special deputy prosecutor under these circumstances and whether appellant was prejudiced by Mr. Wright's extensive participation at the trial are raised for the first time on appeal. An appellant cannot change his argument on appeal; he is instead limited to the nature and scope of the objection and argument raised at the trial court level. Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (Jan. 22, 2004).