Lonnie Newton, Jr. v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
DIVISION III
CACR06-564
February 14, 2007
APPEAL FROM THE ASHLEY
COUNTY CIRCUIT COURT
[CR-05-24-1]
LONNIE NEWTON, JR.
APPELLANT
V.
HONORABLE SAMUEL B. POPE,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant, Lonnie Newton, was tried by a jury and found guilty of the offense of
delivery of cocaine. He was sentenced to twenty years in the Arkansas Department of
Correction. We affirm the conviction.
Appellant raises four points in this appeal:
I.
The trial court abused its discretion when it refused to grant Newton’s
request for a continuance where the trial court allowed the substitution of
counsel just four days before trial.
II.
The trial court abused it discretion when it refused to grant Newton’s
request for a continuance where Newton’s attorney had medical problems
which justified a continuance.
III.
The trial court abused its discretion when it allowed into evidence the tape
of the second drug transaction as it was highly prejudicial and outweighed
any probative value it may have had and it concerned a collateral matter
that was not relevant to the issue before the trial court.
IV.
The trial court’s comment concerning potential other crimes or bad acts by
the defendant was prejudicial to the extent that it vitiated the curing
instruction given by the trial court concerning the tape of the second drug
transaction.
None of the points challenge the sufficiency of the evidence supporting his conviction.
Therefore, it is not necessary to recount the facts in detail.
Briefly, a confidential
informant approached appellant about a possible purchase of cocaine. Appellant took $20
from the confidential informant, left for approximately four minutes, and returned with
what later tested positive for a small amount of cocaine. The particular facts pertaining to
each of the four points of appeal will be discussed under those specific points.
The first two points of appeal can best be discussed together because they both
involve the trial court’s refusal to grant appellant’s counsel’s request for a continuance:
I.
The trial court abused its discretion when it refused to grant Newton’s
request for a continuance where the trial court allowed the substitution of
counsel just four days before trial;
and
II.
The trial court abused it discretion when it refused to grant Newton’s
request for a continuance where Newton’s attorney had medical problems
which justified a continuance.
When reviewing the grant or denial of a motion for continuance, the appellate
court employs an abuse-of-discretion standard. Whisenant v. State, 85 Ark. App. 111, 146
S.W.3d 359 (2004). Appellant must not only demonstrate that the trial court abused its
discretion by denying the motion, but must also show prejudice that amounts to a denial
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of justice. Id. When a motion for continuance is based on a lack of time to prepare, we
will consider the totality of the circumstances. Ware v. State, 348 Ark. 181, 75 S.W.3d
165 (2002). This court has held that a lack of diligence alone is a sufficient basis to deny
a motion for a continuance. Id. Rule 27.3 of the Arkansas Rules of Criminal Procedure
provides, “The court shall grant a continuance only upon a showing of good cause and
only for so long as is necessary, taking into account not only the request or consent of the
prosecuting attorney or defense counsel, but also the public interest in prompt disposition
of the case.”
Here, the trial was scheduled to begin on November 4, 2005. On October 31,
2005, the trial court allowed Don Gillaspie to substitute as counsel of record for appellant.
Three days later, on November 3, the day preceding the scheduled trial, appellant’s
counsel, by motion, sought a continuance, contending that he had not been able to prepare
properly for the November 4 trial because he had been suffering from heart problems and
his cardiologist had made an appointment for his admission into Baylor Heart Hospital in
Dallas for November 7. He stated that he was not physically able to effectively try a jury
trial as scheduled on November 4 and that he had not had an opportunity to read the file,
much less view the videos or engage in meaningful plea negotiations. The trial court
denied the request.
Appellant argues in this appeal that the trial court abused its
discretion in so doing. We disagree.
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The bases for the continuance asserted by appellant’s counsel involved a
combination of illness and lack of time to prepare. In examining the totality of the
circumstances, the following time line of events is helpful:
February 18, 2005
Appellant charged with two counts of delivery of cocaine.
May 4, 2005
Public defender, G.B. Colvin, appointed to defend appellant.
July 28, 2005
B. Dale West allowed to replace Colvin as appellant’s
attorney.
September 13, 2005 W est allowed
relationship.
to
withdraw
because of deteriorating
October 5, 2005
Public defender is apparently back on case.
October 28, 2005
Don Gillaspie’s entry of appearance filed, which states that it
was served on the prosecuting attorney on October 18, and
apparently signed by the judge that same day, although not
filed until 10/31.
October 31, 2005
Order substituting Gillaspie as counsel filed.
November 3, 2005 Gillaspie files motion for continuance.
November 3, 2005 Order denying motion for continuance filed.
Denying the motion for continuance, the trial court reasoned that defense counsel
had recently accepted the case; that counsel knew it was set for trial or reasonably should
have known that it was; that defense counsel knew of his condition when he accepted the
case; and that if counsel’s health was such that he could not perform his function as
counsel, he should not have accepted the case.
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Under the circumstances of this case, we cannot say that the trial court abused its
discretion. First, counsel did not condition his substitution as counsel on the grant of a
continuance by the trial court. Moreover, even though counsel took the case almost a
week prior to the date set for trial, he still did not ask for a continuance until the day
before the scheduled trial. Finally, even though counsel asserted that he was experiencing
heart problems, he did not provide an affidavit from his doctor or anything of that nature
to support his contention and, in any event, he was not scheduled to enter the hospital
until after the trial date.
As part of our standard of review, even if we were to determine that the trial court
had abused its discretion in denying the motion for continuance, appellant would still
have to demonstrate that he was prejudiced by the denial. The only thing that appellant
presents in that regard in his brief is the following: “It is axiomatic that a defendant would
suffer prejudice if his attorney is not prepared and has not even reviewed the evidence
prior to trial.” That assertion is insufficient to demonstrate prejudice in this case.
The only cases cited by appellant with respect to his initial two points are Butler v.
State, 339 Ark. 429, 5 S.W.3d 466 (1999), and Brickey v. State, 148 Ark. 595, 231 S.W.
549 (1921). They are distinguishable from the instant case.
In Brickey, counsel was absent from the trial because he had to handle a case in
another court. The trial court denied counsel’s motion for continuance and appointed
another attorney to represent the defendant. On appeal, our supreme court found no abuse
of discretion in that denial; however, the supreme court did note that if the absence had
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been because of sickness or some other unavoidable casualty, it might have constituted an
abuse of discretion. Here, we are not dealing with the absence of an attorney.
In Butler, the attorneys moved to be substituted as counsel and, in addition, stated
to the court that there was “no way, coming in at this date, that we could adequately be
prepared for trial” by the scheduled date, twenty days hence. In addition, it was
undisputed that the State had not provided critical discovery pertaining to the names of
each victim connected with each count charged. The trial court granted the first counsel’s
request to withdraw, but denied the request of the substitute counsel for a continuance.
Our supreme court found that the denial was an abuse of the trial court’s discretion. Here,
however, appellant’s substitute counsel did not simultaneously request a continuance; in
addition, discovery had already been provided by the State to prior counsel.
III.
The trial court abused its discretion when it allowed into evidence the tape
of the second drug transaction as it was highly prejudicial and outweighed
any probative value it may have had and it concerned a collateral matter
that was not relevant to the issue before the trial court.
Appellant was charged with two counts of delivery of cocaine, with one occurring
on January 13, 2005, and the second on January 22, 2005. The State’s motion to sever
the offenses was granted by the trial court. At the trial of the instant case pertaining to the
January 13 transaction, the State sought to introduce the video tape of the second incident
(January 22, 2005), but the trial court sustained appellant’s objection to its introduction.
During the State’s cross-examination of appellant, however, he stated:
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I have never sold or delivered cocaine before or after January 13. The
officer that arrested me told me he had me on film twice for selling drugs. Me and
Mr. Johnson did smoke some one day. I did not sell or otherwise deliver cocaine
to Mr. Johnson a week later. We went and got it. I was going down the street one
day. He was walking. He stopped me and got in the car and told me to go over
here to this guy behind Sav-A-Lot. So we went there and the guy met us there and
we got it. I don’t remember what day it was.
Nothing like what was on the tape happened again. The first time he was in
a truck; second time he was walking down the street. I’m pretty sure.
When the defense rested, the State approached the court in a bench conference and
sought to introduce the video tape of the January 22 interaction between the confidential
informant and appellant to show that “there was no smoking between these two.”
Appellant objected, arguing:
[D EFENSE C OUNSEL]:
I have never seen it. Mr. Newton is not on trial for that
and I object. We don’t know if they are the same
occasion. He said the second occasion. He did not
give a date. To display a video which shows an
entirely different transaction identical to the deal he is
charged with is putting him twice in jeopardy for one
offense. It’s clearly prejudicial.
T RIAL C OURT:
I think it’s probably proper.
It’s not any more
prejudicial to the Defendant. I think it’s rebuttal to his
testimony. Mr. Newton chose to testify. It tends to
corroborate essentially the same transaction. If the
State wants to play it, I will allow it.
[D EFENSE C OUNSEL]:
The video portrays the exact complete evidence of the
offense that was alleged in Count Two of the
Information, which the court severed at the request of
the prosecutor. We are trying him on that second
offense to make him guilty of the first. Second, I
requested discovery when I got into the case and I have
not received the first thing on discovery until this
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morning when I got two or three pieces of paper. I’ve
never been offered to look at the video.
In the first portion of his argument on appeal, appellant contends that the trial court
abused its discretion because the tape of the January 22 transaction was highly prejudicial
and that other nonprejudicial evidence could have been used to accomplish the same
purpose. We find no basis for reversal for the following reasons.
First, the trial court gave the jury a limiting instruction regarding the purposes for
which the jury could use the tape and thereby minimizing any prejudicial effect. Second,
even if we were to determine that the trial court abused its discretion in allowing the tape,
any abuse of discretion would be harmless because appellant admitted that he took money
from the confidential informant; that he gave that money to a third party, who in turn
gave him cocaine; and that he then took the cocaine back to the confidential informant.
As our supreme court explained in Higgs v. State, 313 Ark. 272, 273-74, 854 S.W.2d 328,
329 (1993):
Appellant argues that since the third person ultimately took the money
appellant cannot be guilty of “delivery” of a controlled substance. The argument is
without merit as one does not have to receive money to be guilty of delivery of a
controlled substance. Ark. Code Ann. 5-64-401 makes it illegal to deliver a
controlled substance. “Delivery” is defined as “the actual, constructive, or
attempted transfer from one (1) person to another of a controlled substance or
counterfeit substance in exchange for money or anything of value.” Ark. Code
Ann. 5-64-401 (f) (1987). The statute prohibits the “delivery” of a controlled
substance, not its sale. The statute does not require that the perpetrator ultimately
receive money, only that he participate in the transfer of the substance in exchange
for money or anything of value. The fact that an accused is only the agent of a
buyer or seller of drugs does not remove the transfer from the ambit of the statute.
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(Citations omitted.) Here, the evidence of appellant’s guilt was overwhelming, thereby
making any abuse of discretion in the admission of the tape harmless.
Appellant’s remaining arguments under this point of appeal are that 1)
impeachment cannot be accomplished through the use of extrinsic evidence, citing Rule
608 of the Arkansas Rules of Evidence, and 2) rebuttal evidence should be confined to
evidence that is first introduced by the opposing party. Neither of these arguments were
raised below, and therefore we will not address them on appeal. It is well settled that the
appellate courts will not hear arguments or errors, even constitutional ones, which were
not raised at the trial court level by means of a timely, specific objection. Croston v.
State, 95 Ark. App. 157, ____ S.W.3d ____ (2006).
IV.
The trial court’s comment concerning potential other crimes or bad acts by
the defendant was prejudicial to the extent that it vitiated the curing
instruction given by the trial court concerning the tape of the second drug
transaction.
As explained under Point III, the trial court allowed the tape of the January 22
incident but gave a limiting instruction to the jury that it was only to be considered as
rebuttal evidence:
You are instructed that the evidence of other alleged crimes, wrongs or acts of
Lonnie Newton, Jr. may not be considered by you to prove the character of Lonnie
Newton, Jr. in order to show that he acted in conformity therewith on the day of
this charge. This evidence is not to be considered to establish a particular trait or
character that he may have. It is not to be considered to show that he acted
similarly or accordingly on the day of the incident. The evidence is offered for
proof of rebuttal of his testimony. Whether any other alleged crimes, wrongs, or
acts have been committed is for you to determine.
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(Emphasis added.) It is the trial court’s last comment, italicized above, that appellant
asserts as error under his final point of appeal. However, this argument was also not
preserved for our review because appellant did not raise it below. Croston, supra.
Affirmed.
R OBBINS and M ILLER, JJ., agree.
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