Dodson v. State

Johnny Paul DODSON v. STATE of Arkansas

CR 96-700                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 18, 1996


1.   Criminal procedure -- postconviction relief due to ineffective
     assistance of counsel -- when it may be raised on direct
     appeal. -- Although A.R.Cr.P. Rule 37 generally provides the
     procedure for postconviction relief due to ineffective
     counsel, the issue may be raised by a defendant on direct
     appeal, provided it is first raised during trial or in a
     motion for new trial; evidence of the allegation must,
     however, be contained in the record, and the trial court must
     have been given the opportunity to rule on the issue; the
     court will not consider a claim of counsel's ineffectiveness
     unless the facts surrounding the claim were fully developed
     either during the trial or during other hearings conducted by
     the trial court.  
2.   Criminal procedure -- claim of ineffective assistance of
     counsel -- claim raised on direct appeal must have been fully
     developed below. -- The supreme court will review claims of
     counsel's ineffectiveness on direct appeal provided that the
     allegation is raised before the trial court (i.e., in a motion
     for new trial) and that the facts and circumstances
     surrounding the claim have been fully developed.

3.   Criminal procedure -- "deemed denied" ruling insufficient
     order from which to appeal denial of motion for new trial
     based on claim of ineffectiveness -- fully developed facts and
     an actual ruling are a necessity. -- Pursuant to Rule 2 of the
     Arkansas Rules of Appellate Procedure--Criminal, Rule 4(c) of
     the Rules of Appellate Procedure--Civil, which provides that
     certain posttrial motions may be "deemed denied" for purposes
     of filing a timely notice of appeal, does not constitute a
     sufficient order from which to appeal the denial of a motion
     for a new trial based on a claim of ineffectiveness; Rule 2
     makes it clear that the purpose of recognizing "deemed denied"
     rulings on posttrial motions is to enable an appellant to know
     when he must file his notice of appeal of the judgment of
     conviction; here, the ruling was "deemed denied" for purposes
     of filing a timely notice of appeal from an appealable order
     of a posttrial claim of ineffectiveness; Rule 2 applies in
     Rule 37 cases only with respect to appeals from the actual
     denial of the petition; this case, although not involving a
     Rule 37 petition, did involve a claim of trial counsel's
     ineffectiveness; the reasons for the necessity of an actual
     ruling and fully developed facts were the same in both
     instances. 

4.   Criminal procedure -- no evidence of the allegation or actual
     ruling of trial court presented -- "deemed denied" ruling on
     posttrial motion for new trial an insufficient order from
     which to raise claim of ineffectiveness on direct appeal --
     appellant's first point affirmed. -- There was no evidence as
     to why trial counsel made the particular decisions which were
     challenged in the appeal, and such information was necessary
     to conduct a meaningful review of the allegations, and based
     upon the decisions interpreting Rule 4(c) and the plain
     meaning of Rule 2, a "deemed denied" ruling on a posttrial
     motion for new trial was determined to be an insufficient
     order from which to raise on direct appeal a claim of
     ineffectiveness; as the trial court is in the best position to
     evaluate trial counsel's performance and competency, an order
     reciting its findings was necessary to conduct a meaningful
     review of the claim; because the court was not presented with
     any evidence on the allegation or any actual ruling of the
     trial court, appellant's first point was affirmed.

5.   Evidence -- forensic chemist's report properly admitted --
     appellant chose to rush to trial and could not assert lack of
     preparedness on appeal. -- Appellant's argument that it was
     error for the trial court to allow the prosecution to
     introduce into evidence a copy of the forensic chemist's
     report containing the analysis of the drugs recovered because
     he was denied his constitutional right to confront and cross-
     examine the chemist who conducted the analysis was without
     merit where appellant never indicated his desire to cross-
     examine the chemist at anytime prior to his trial, where he
     knew or should have known that the prosecution would attempt
     to use the evidence against him either through the chemist's
     testimony or through the report itself, and where it was clear
     from the abstract of the record that appellant was fully aware
     that his counsel had not had adequate opportunity to compile
     discovery or to attempt to negotiate a plea bargain, yet
     appellant desired to proceed to trial even though his attorney
     might not have been fully prepared to defend him; Appellant
     could not assert on appeal that he was not prepared to defend
     against the admission of the chemist's report without being
     allowed to cross-examine the chemist when it was appellant's
     own decision to rush through with the trial.  

6.   Criminal procedure -- State has burden to produce chemist for
     purposes of cross examination -- appellant must inform the
     state of his desire to have chemist present at trial. --   
     It is the State's burden to produce the chemist or to obtain
     a continuance when the State has caused the defendant to be
     unable to comply with the ten-day-notice prerequisite of Ark.
     Code Ann.  12-12-313 (Repl. 1995); nonetheless, the defendant
     is at least required to inform the State that he desires to
     have the chemist present at trial so the State would realize
     that it must fulfill its burden to produce the witness; an
     appellant must also demonstrate that he has been prejudiced,
     beyond the bare assertion of the constitutional right to
     confront witnesses, by the denial of cross-examination or that
     such a request would have availed him anything. 

7.   Criminal procedure -- appellant charged with controlled
     substances offenses should have known prosecution would
     introduce evidence establishing that substances were illegal
     drugs -- no prejudice demonstrated in appellant's being denied
     cross-examination of chemist. -- Appellant was charged with
     two controlled substance offenses and, thus, he knew or should
     have known that the prosecution would necessarily introduce
     evidence establishing that the substances were illegal drugs;
     had appellant truly desired to cross-examine the chemist, he
     should have informed the prosecution of this desire as soon as
     possible prior to commencement of the trial; appellant failed
     to demonstrate in any way that he was prejudiced by being
     denied cross-examination of the chemist.     

8.   Evidence -- attestation in chemist's report was sufficient --
     report contained indicia of truthfulness. -- Appellant's
     argument that the chemist's report was not properly attested
     as provided in Ark. Code Ann.  12-12-313 was without merit
     where the report displayed a laboratory case number, listed
     appellant's name along with the names of the other suspects,
     and was signed by the forensic chemist; the attestation
     contained in the analysis report was sufficient and proper
     under Ark. Code Ann.  12-12-313, in that it provided certain
     indicia of truthfulness.

9.   Appeal & error -- alleged errors not bought to trial court's
     attention -- trial court's sentence affirmed. -- The merits of
     appellant's claim were not reached where it was not properly
     preserved for review below; the appellate court will not
     consider alleged errors that were not brought to the attention
     of the trial court; the trial court's sentence was affirmed.


     Appeal from Monroe Circuit Court; Harvey L. Yates, Judge;
affirmed.
     Etoch Law Firm, by:  Louis A. Etoch, for appellant.
     Winston Bryant, Att'y Gen., by:  O. Milton Fine, II, Asst.
Att'y Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant Johnny Paul Dodson appeals the judgment of
conviction of the Monroe County Circuit Court sentencing him to a
term of fifty years in the Arkansas Department of Correction for
the offenses of possession of a controlled substance
(methamphetamine) with intent to deliver and possession of a
controlled substance (marijuana).  Our jurisdiction is pursuant to
Ark. Sup. Ct. R. 1-2(a)(2).  In support of his appeal, Appellant
asserts that the trial court erred as follows:  (1) In denying his
motion for new trial on the grounds that trial counsel was
ineffective; (2) in allowing the prosecution to enter into evidence
a copy of the State Crime Laboratory report concerning the drug
analysis; and (3) in sentencing Appellant to a term of ten years
for simple possession of marijuana.  We affirm.
     Appellant was arrested during a traffic stop in Brinkley,
Arkansas, driving a car that belonged to his girlfriend.  Appellant
was accompanied by two other passengers:  James Martin and Ricky
Bennett.  During a search of the car and its occupants, officers
recovered a 10 mm gun and a bag containing what was believed to be
crystal methamphetamine and marijuana.  In addition, the officers
recovered $6,000.00 cash from Appellant's person.
     Appellant was charged by information with three felony
offenses, namely possession of methamphetamine with the intent to
deliver the substance, Class Y felony; possession of marijuana,
Class C felony; and being a felon in possession of a firearm, Class
D felony.  Appellant was also charged with two traffic violations. 
Appellant was tried before a jury and was convicted on all counts
with the exception of the firearm charge.  Judgment was entered by
the trial court, sentencing Appellant to a term of imprisonment for
fifty years.  It is from that judgment appeal is taken. 
              I.  Ineffective Assistance of Counsel
     Appellant argues that his trial counsel was ineffective due to
a material conflict of interest involving his representation of all
three of the men arrested during the traffic stop and due to his
failure to move to sever the offense of felon in possession of a
firearm.  We do not reach the merits of his arguments on appeal, as
the facts surrounding each allegation of ineffectiveness were not
fully developed in the trial court.  
     It is evident from the abstract of the record that subsequent
to the trial court's entry of the judgment and commitment order on
November 8, 1995, Appellant retained new counsel and filed a motion
for new trial on December 7, 1995, alleging that he had been denied
effective assistance of counsel.  In that motion, Appellant
submitted eight grounds upon which his trial counsel was
ineffective; Appellant argues only two of those grounds on appeal. 
The trial court did not conduct a hearing on the motion for new
trial, nor did the court actually rule on the motion.  Appellant
asserts that the motion for new trial was "deemed denied" pursuant
to Rule 4(c) of the Arkansas Rules of Appellate Procedure.
     We are thus presented with two distinct but related issues: 
(1) Whether we may properly consider on direct appeal Appellant's
claim of trial counsel's ineffectiveness, which amounts to a
collateral attack on the judgment pursuant to A.R.Cr.P. Rule 37,
and (2) whether it is sufficient for purposes of our review of such
a claim that the motion for new trial was "deemed denied" by the
trial court.
     This court has recognized that, although Rule 37 generally
provides the procedure for postconviction relief due to ineffective
counsel, the issue may be raised by a defendant on direct appeal
provided it is first raised during trial or in a motion for new
trial.  See A.R.Cr.P. Rule 37; Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992);
Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976).  Evidence of
the allegation must, however, be contained in the record and the
trial court must have been given the opportunity to rule on the
issue.  Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). 
Additionally, this court has indicated that it will not consider a
claim of counsel's ineffectiveness unless the facts surrounding the
claim were fully developed either during the trial or during other
hearings conducted by the trial court.  Edwards v. State, 321 Ark.
610, 906 S.W.2d 310 (1995).  The rationale behind this rule of law
is that an evidentiary hearing and finding as to the competency of
an appellant's counsel by the trial court better enables the
appellate court on review to examine in detail the sufficiency of
the representation.  Reed v. State, 323 Ark. 28, 912 S.W.2d 929
(1996); Hilliard, 259 Ark. 81, 531 S.W.2d 463.  The trial court is
in a better position to assess the quality of legal representation
than we are on appeal.  Id.
     In Missildine, 314 Ark. 500, 863 S.W.2d 813, this court
observed that the reason we do not ordinarily review on direct
appeal a charge of ineffectiveness is because the facts relevant to
that issue have not been developed below.  This court held that
"when the proof is presented at a hearing on a motion for a new
trial, economy of procedure would require a single appeal of all
the issues."  Missildine, 314 Ark. at 507, 863 S.W.2d  at 818
(emphasis added) (citing Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986)).  In other words, in the interest of judicial economy,
this court will review claims of counsel's ineffectiveness on
direct appeal provided that the allegation is raised before the
trial court (i.e., in a motion for new trial) and that the facts
and circumstances surrounding the claim have been fully developed.
     Given the aforementioned specific requirements established by
our prior decisions concerning direct appellate review of claims of
ineffectiveness, we must now assess whether the "deemed" denial of
Appellant's motion for new trial is an appealable order sufficient
for our review of his claim.  Rule 4(c) of the Rules of Appellate
Procedure--Civil provides: 
          If a timely motion listed in section (b) of this
     rule is filed in the trial court by any party, the time
     for appeal for all parties shall run from the entry of
     the order granting or denying a new trial or granting or
     denying any other such motion. Provided, that if the
     trial court neither grants nor denies the motion within
     thirty (30) days of its filing, the motion will be deemed
     denied as of the 30th day.  [Emphasis added.]

     This court has previously held that Rule 4(c) applies in
criminal cases.  Giacona v. State, 311 Ark. 664, 846 S.W.2d 185
(1993).  However, the decisions in which we have addressed the
rule's application in criminal cases have thus far dealt only with
the issue of timeliness of appeal.  See, e.g., Bowen v. State, 322
Ark. 483, 911 S.W.2d 555 (1995); Giacona, 311 Ark. 664, 846 S.W.2d 185.  
     In 1996 we adopted the separate Rules of Appellate Procedure--
Criminal, which include a provision that certain posttrial motions
may be "deemed denied" pursuant to Rule 4(c) for purposes of filing
a timely notice of appeal.  In re:  In the Matter of the Adoption
of Revised Rules of Appellate Procedure, 321 Ark. 663, 900 S.W.2d 560 (1995) (per curiam).  Specifically, Ark. R. App. P.--Crim.
2(a)(3), which addresses the time and method of taking an appeal,
provides that a notice of appeal shall be filed within thirty days
from the date a posttrial motion under A.R.Cr.P. Rule 33.3,
including a motion for new trial, is "deemed denied" pursuant to
Ark. R. App. P.--Civ. 4(c).  Since the adoption of that rule, we
have yet to address the issue of whether such a "deemed denied"
ruling is a sufficient order from which to appeal the denial of a
motion for new trial based upon a claim of ineffectiveness.      
     A plain reading of Rule 2 demonstrates that the purpose of
recognizing such "deemed denied" rulings on posttrial motions is to
enable an appellant to know when he must file his notice of appeal
of the judgment of conviction.  We must therefore distinguish a
ruling which is "deemed denied" for purposes of filing a timely
notice of appeal from an appealable order of a posttrial claim of
ineffectiveness.  As the Reporter's Notes to Rule 2 indicate, this
rule applies in Rule 37 cases only as to appeals from the actual
denial of the petition; the "deemed denied" provision of Rule 4(c)
does not apply to Rule 37 petitions.  Although this case does not
involve a Rule 37 petition, it does involve a claim of trial
counsel's ineffectiveness.  The reasons for the necessity of an
actual ruling and fully developed facts are the same in both
instances.  It matters not what we call it; Appellant's claim on
appeal amounts to nothing more than a collateral attack on the
judgment based on allegations of counsel's ineffectiveness.
     In the case at hand, we have not been provided with anything
other than the bare allegations set out in Appellant's motion for
new trial.  We have no evidence as to why trial counsel made the
particular decisions which are challenged in this appeal.  There
has been no testimony from either Appellant or his trial counsel
indicating whether there were discussions between them as to the
way Appellant's defense should or would proceed.  Such information
is necessary for us to conduct a meaningful review of the
allegations.  This is especially true in this case as there was
discussion on the record below indicating that Appellant was aware
that his trial counsel was not fully prepared to go to trial, but
that Appellant nonetheless chose to proceed with the trial so that
he could be released as soon as possible.              
     Based upon the above-recited case law, including our decisions
interpreting Rule 4(c), and the plain meaning of Rule 2, we
conclude that a "deemed denied" ruling on a posttrial motion for
new trial is an insufficient order from which to raise on direct
appeal a claim of ineffectiveness.  Such a deemed ruling
necessarily precludes any consideration by the trial court of the
relevant facts pertaining to the claim.  As the trial court is in
the best position to evaluate trial counsel's performance and
competency, an order reciting its findings is necessary to enable
us to conduct a meaningful review of the claim.  Because we have
not been presented with any evidence on the allegation or any
actual ruling of the trial court, we affirm as to Appellant's first
point.  
     We point out that nothing in this opinion should be construed
as prohibiting Appellant from filing a proper petition for
postconviction relief pursuant to A.R.Cr.P. Rule 37.   
               II.  State Crime Laboratory Report
     For his second point, Appellant argues that it was error for
the trial court to allow the prosecution to introduce into evidence
a copy of the forensic chemist's report containing the analysis of
the drugs recovered in this case.  Appellant's argument is twofold: 
(1) He was denied his constitutional right to confront and cross-
examine the chemist who conducted the analysis, and (2) the report
was not properly attested as provided in Ark. Code Ann.  12-12-313
(Repl. 1995).  We find no merit to either of Appellant's arguments.
     Section 12-12-313 provides:  
          (a) The records and reports of autopsies, evidence
     analysis, drug analysis, and any investigations made by
     the State Crime Laboratory under the authority of this
     subchapter shall be received as competent evidence as to
     the matters contained therein in the courts of this state
     subject to the applicable rules of criminal procedure
     when duly attested to by the executive director or his
     assistants, associates, or deputies.

          (b) Nothing in this section shall be deemed to
     abrogate a defendant's right of cross-examination if
     notice of intention to cross-examination is given prior
     to the date of hearing or trial pursuant to the
     applicable rules of criminal procedure.

          (c) The testimony of the appropriate analyst may be
     compelled by the issuance of a proper subpoena, in which
     case the records and reports shall be admissible through
     the analyst who shall be subject to cross-examination by
     the defendant or his counsel.

          (d)(1) All records and reports of evidence analysis
     of the State Crime Laboratory shall be received as
     competent evidence as to the facts in any court or other
     proceeding when duly attested to by the employee who
     performed the analysis.

          (2) The defendant shall give at least ten (10) days
     notice prior to the proceedings that he requests the
     presence of the employee of the State Crime Laboratory
     who performed the analysis for the purposes of
     cross-examination.

          (3) Nothing in this subsection shall be construed to
     abrogate the defendant's right to cross-examination.

The purpose of this statute is to remove these reports from
exclusion under the hearsay rule and make them admissible when
certain requirements designed to establish their trustworthiness
have been satisfied.  Nard v. State, 304 Ark. 159, 801 S.W.2d 634
(1990).
     Appellant's abstract reflects that the charges against
Appellant were filed on September 29, 1995, and that the trial was
conducted on November 7-8, 1995.  Appellant asserts that his trial
counsel was not aware of the charges filed against him until the
day before the trial.  Appellant further asserts that his trial
counsel was not notified of the prosecution's intention to
introduce the analysis report until the prosecution moved for its
introduction at trial.  It is Appellant's contention on appeal that
he did not waive his right to cross-examine the chemist, and that
he should not have been held to the ten-day-notice requirement in
section 12-12-313 because he was not aware that the prosecution
would not call the chemist as a witness until that point during the
trial when the prosecution offered the analysis report as evidence. 
Appellant does not assert that he had indicated this desire to
cross-examine the chemist at anytime prior to his trial.         
     Appellant's argument that he did not have time to comply with
the ten-day-notice requirement is unpersuasive as we believe he
knew or should have known that the prosecution would attempt to use
the evidence against him either through the chemist's testimony or
through the report itself.  We further find the argument
unpersuasive as it is clear from the abstract of the record that
Appellant was fully aware that his counsel had not had adequate
opportunity to compile discovery or to attempt to negotiate a plea
bargain.  In fact, Appellant's trial counsel made the court aware
of his client's desire to get on with the trial as soon as possible
during a pretrial hearing.  Appellant's trial counsel stated:
     We have no discovery in this case.  That is not the fault
     of the State because the case was just filed.  My client
     insists on going to trial, and believes that the faster
     he goes to trial, the faster he can be released.  He has
     maintained his innocence and it is his belief and desire
     to go ahead and have a trial so that he may be acquitted
     and discharged.  Even with the risk of his attorney being
     ignorant of what the State has in this matter and what
     their level of proof and preparedness is.

It is clear from counsel's remarks that it was Appellant's
conscious desire to proceed to trial even though his attorney may
not have been fully prepared to defend him.  Appellant cannot now
assert that he was not prepared to defend against the admission of
the chemist's report without being allowed to cross-examine the
chemist when it was Appellant's own decision to rush through with
the trial.  
     This court has previously concluded that it is the state's
burden to  produce the chemist or to obtain a continuance when the
state has caused the defendant to be unable to comply with the
statute's ten-day-notice prerequisite.  Lockhart v. State, 314 Ark.
394, 862 S.W.2d 265 (1993).  Nonetheless, the defendant is at least
required to inform the state that he desires to have the chemist
present at trial so the state would realize that it must fulfill
its burden to produce the witness.  Id.  Moreover, an appellant
must also demonstrate that he has been prejudiced, beyond the bare
assertion of the constitutional right to confront witnesses, by the
denial of cross-examination or that such a request would have
availed him anything.  Id.  
     Appellant relies heavily on the decision in Hendrix v. State,
40 Ark. App. 52, 842 S.W.2d 443 (1992), in which the court of
appeals concluded that "[w]hile the procedural rule requiring
pretrial notice of demand for the right of cross-examination of a
laboratory employee is generally a reasonable one, there can be no
reasonable basis for enforcing such a rule where it is not possible
for the accused to comply."  Id. at 57, 842 S.W.2d  at 446. 
Appellant's reliance on that holding is misplaced, however, as the
facts of that case were such that the state attempted to admit a
drug-analysis report involving a previous arrest of the defendant
without any prior notice to the defendant, for the purposes of
impeaching his testimony.  Such a situation is readily
distinguishable from the facts present in this case.   
     Appellant was charged with two controlled substance offenses
and, thus, he knew or should have known that the prosecution would
necessarily introduce evidence establishing that the substances
were illegal drugs.  Had Appellant truly desired to cross-examine
the chemist, he should have informed the prosecution of this desire
as soon as possible prior to commencement of the trial.  As to the
specific allegation that his trial attorney was not aware of the
prosecution's intention to introduce the report, Appellant has no
one but himself to blame for counsel's lack of preparation, as he
chose to roll the dice and proceed with the trial knowing that his
attorney had not had the opportunity to conduct proper discovery. 
Furthermore, Appellant has not demonstrated in any way that he has
been prejudiced by being denied cross-examination of the
chemist.  See Lockhart, 314 Ark. 394, 862 S.W.2d 265.
     For the second prong of this contention, Appellant argues that
the chemist's report was not properly attested as provided in
section 12-12-313.  The attestation contained on the face of the
chemist's analysis report reads:
     I do hereby attest and confirm as specified by A.C.A. 12-
     12-313, that the information listed below is a true and
     accurate report of the results of analysis performed by
     me of evidence received in a sealed condition at the
     Arkansas State Crime Laboratory.
The report displays a laboratory case number 95-13118 and lists the
Appellant's name along with James Martin and Ricky Glenn Bennett as 
suspects.  The report is signed by the forensic chemist, Kathy S.
Shanks, and is notarized.    
     We rely on this court's previous holding in Willis v. State,
309 Ark. 328, 829 S.W.2d 417 (1992), in which the appellant
likewise challenged the sufficiency of the attestation of a drug
analysis report.   The report in that case stated:   
     I, Keith Kerr, Chemist, do hereby certify and attest that
     I personally performed the laboratory tests and prepared
     the laboratory analysis report in Laboratory Case No.
     90-02473.

Id. at 330, 829 S.W.2d  at 419.  This court concluded that the 
attestation contained in the report was sufficient under section
12-12-313, in that it provided certain indicia of truthfulness. 
This court concluded further that there is no notarization
requirement in section 12-12-313.  We thus hold that the
attestation of the analysis report in this case was sufficient and
proper under the requirements of section 12-12-313.
                     III.  Improper Sentence
     Appellant argues for his third point that he was sentenced
improperly to a term of ten years imprisonment for simple
possession of marijuana.  The State contends that Appellant was
convicted of a Class C felony for marijuana possession and, as
such, Appellant's sentence of ten years was not improper nor
illegal as it is within the permissible range of years for a Class
C felony.  We do not, however, reach the merits of Appellant's
claim as it was not properly preserved for our review below. 
Nowhere in Appellant's abstract of the record is it demonstrated
that this argument was ever made to the trial court -- either
before the bench or in his motion for new trial.  We have
repeatedly held that we will not consider alleged errors that were
not brought to the attention of the trial court.  See, e.g.,
Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Terry v.
State, 309 Ark. 64, 826 S.W.2d 817 (1992); Porter v. State, 308
Ark. 137, 823 S.W.2d 846 (1992).  We thus affirm the trial court's
sentence.