Whitney v. State

Donnie WHITNEY v. STATE of Arkansas

CR 96-577                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 7, 1996


1.   Motions -- directed verdict -- general motion does not
     preserve sufficiency-of-evidence issue for appeal. -- A
     general directed-verdict motion stating only that the evidence
     is insufficient does not preserve a sufficiency-of-the-
     evidence issue for appeal.

2.   Trial -- reversible error -- timely objection required. -- For
     an allegation of error to be sustained as the result of a
     trial error, there must have been a timely and accurate
     objection.

3.   Appeal & error -- ineffective-assistance-of-counsel issue not
     considered by trial court -- cannot be raised on direct
     appeal. -- The supreme court, noting that appellant would be
     free to move for postconviction relief under Ark. R. Crim.
     Pro. 37 after resolution of his direct appeal, held that he
     could not raise his ineffective-assistance-of-counsel argument
     on direct appeal because it was not an issue considered by the
     trial court.

4.   Appeal & error -- no objection to sentence made before trial
     court -- issue not considered. -- Where appellant urged that
     his sentence was so cruel and unusual as to be in violation of
     the Arkansas Constitution, the supreme court noted that the
     sentence was within the statutory limits and declined to
     consider the issue further because no objection to the
     sentence was made before the trial court.

5.   Trial -- penalty phase -- trial court did not err in
     sustaining objection to testimony that had no bearing upon
     sentence. -- Where appellant argued that the trial court
     improperly limited the testimony of a penalty-phase witness,
     the supreme court held that the trial court did not err in
     sustaining the State's objection to testimony that had no
     bearing upon the sentence to be received by appellant.


     Appeal from Lafayette Circuit Court; Philip Purifoy, Circuit
Judge; affirmed.
     Honey & Honey, P.A., for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.

     Donnie Whitney, the appellant, was charged by information in
Lafayette Circuit Court as an habitual offender with three counts
of Delivery of a Controlled Substance (i.e., cocaine).  Ark. Code
Ann.  5-64-401(a) (Supp. 1995).  He was tried, and convicted, on
Count I of the information and sentenced to a prison term of eighty
years and a fine of $50,000.  Ark. Code Ann.  5-64-401(a)(1)(i)
(Supp. 1995) and 5-64-408(a)(Repl. 1993).  
     Mr. Whitney maintains his conviction should be reversed
because (i) the prosecutor, during the closing argument at the
penalty phase of trial, commented on Mr. Whitney's failure to
testify during the guilt-innocence phase; (ii) the prosecutor made
other improper remarks during the closing argument at the guilt-
innocence phase; (iii) the sentence is excessive; and (iv) the
evidence was insufficient to support the conviction.  We affirm the
conviction and sentence on those points as none of them has been
preserved for appeal.  We also reject Mr. Whitney's argument that
the Trial Court improperly limited the testimony of mitigation
witnesses presented by Mr. Whitney in the sentencing phase of the
trial.

                 1. Sufficiency of the evidence
     Testimony revealed that an undercover state police officer and
an informant were approached by Mr. Whitney as they sat in a
vehicle and that they purchased cocaine from Mr. Whitney for $1000. 
At the close of the State's case, counsel moved for a directed
verdict, stating only that the evidence was "not sufficient ... to
sustain a conviction of a violation of a controlled substance,
namely cocaine."  After the defense rested, the motion was renewed,
using the same general terminology.  A general directed-verdict
motion stating only that the evidence is insufficient does not
preserve a sufficiency-of-the-evidence issue for appeal.  Ark. R.
Crim. P. 33.1;  Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995);
Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

                     2. Prosecutor's remarks
     During the closing argument in the guilt-innocence phase of
the trial, the prosecutor discussed the impact of drug-related
crimes on society.  The prosecutor linked rising taxes and
insurance premiums to drug-related criminal activity, and he told
the jury that it would be affected by the nation's drug problem
"sooner or later" and that Mr. Whitney's trial was an "opportunity
today to do something about this problem in Lafayette County."  Mr.
Whitney argues those remarks were improper because they accused him
of crimes and other conduct not charged, blamed him for the ills of
society, and personalized the argument with the jury.  There was
neither an objection nor a motion for a mistrial.
     Mr. Whitney also asks us to reverse his conviction because the
Prosecutor, during closing argument in the sentencing phase, drew
attention to the fact that Mr. Whitney did not call witnesses or
produce evidence during the guilt-innocence phase of the trial,
thus calling attention to the fact that he did not testify.  There
was, again, no objection or motion for mistrial.

     For an allegation of error to be sustained as the result of a
trial error, there must have been a timely and accurate objection. 
Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987);
Jones v. State, 248 Ark. 694, 453 S.W.2d 403 (1970); Wallace v.
State, 53 Ark. App. 199, 202, 920 S.W.2d 864, ___ (1996).  See also
Floyd v. State, 278 Ark. 86, 89, 643 S.W.2d 555 (1982)(stating
defendant "cannot complain for lack of a mistrial on appeal when
none was requested").
     Mr. Whitney concedes he did not move for mistrial in response
to the Prosecutor's comments.  He argues, however, that we should
view defense counsel's inaction as ineffective assistance of
counsel and reverse on that basis.  He asks us to remand the case
so that the Trial Court may consider whether his counsel was
ineffective.  As authority for his request that we remand the case,
Mr. Whitney cites Thomas v. State, 322 Ark. 670, 911 S.W.2d 259
(1995).  In that case the appeal was from a trial court's denial of
postconviction relief, not a direct appeal of the conviction.
     Mr. Whitney is free to move for postconviction relief under
Ark. R. Crim. Pro. 37 after his direct appeal to this Court is
resolved.  He may not raise his ineffective-assistance-of-counsel
argument in this direct appeal because it was not an issue
considered by the Trial Court.  See Reed v. State, 323 Ark. 28, 29,
912 S.W.2d 929 (1996); Sumlin v. State, 319 Ark. 312, 313, 891 S.W.2d 375 (1995).

                         3. The sentence
     Mr. Whitney urges that his sentence was so cruel and unusual
as to be in violation of the Arkansas Constitution.  We note that
the sentence was within the limits placed by the statutes cited at
the outset of this opinion, and we decline to consider the point
further because no objection to the sentence was made before the
Trial Court.  Reece v. State, 325 Ark. 465, ___ S.W.2d ___ (1996). 
See Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992); Williams
v. State, 303 Ark. 193, 194, 794 S.W.2d 618 (1990).
     An additional argument with respect to the sentence is that
the Trial Court improperly limited the testimony of a witness
offered in mitigation.  The argument concerns the testimony of Mr. 
Whitney's sixth penalty-phase witness, Ms. Foots.  The State argued
that some of Ms. Foots's testimony was irrelevant, and the
objection was sustained.  She had begun to speak of another
criminal defendant who, she said, had not been permitted to defend
himself in court.  Defense Counsel concluded his examination of Ms.
Foots and called a seventh witness, Mr. Pierce, after the Trial
Court admonished against eliciting testimony bearing on Whitney's
guilt or innocence which had been concluded earlier.
     Mr. Whitney argues the Trial Court should have given him wider
"latitude in which to properly present all relevant mitigating
circumstances."  The Trial Court did not err in sustaining the
objection to Ms. Foots's testimony, which had no bearing upon the
sentence to be received by Mr. Whitney.
     Affirmed.