McNeely v. State

William Lance McNEELY v. STATE of Arkansas

CA CR 95-602                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered July 3, 1996


Appeal & error -- argument on appeal not raised below -- appellate
     court does not address arguments made for first time on
     appeal. -- Where appellant's argument on appeal was not made
     to the trial court, it was not preserved for appeal; the
     appellate court does not address arguments raised for the
     first time on appeal; moreover, the proponent of a motion to
     suppress has the initial burden of establishing that his own
     Fourth Amendment rights have been violated by the challenged
     search or seizure. 


     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
affirmed.
     Dennis R. Morlock, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     James R. Cooper, Judge.

_________________________
COOPER, J. - 3
                        McNEELY v. STATE
                 Cite as 54 Ark. App. ___ (1996)

*ADVREP*CA4*
                                  EN BANC



                                        CACR95-602

                                                          July 3, 1996


WILLIAM LANCE McNEELY                   APPEAL FROM THE ARKANSAS COUNTY
          APPELLANT                     CIRCUIT COURT (NORTHERN DISTRICT)
                                        [NO. CR94-29]

VS.                                     HON. RUSSELL ROGERS,
                                        CIRCUIT JUDGE

STATE OF ARKANSAS                       AFFIRMED
          APPELLEE






                          James R. Cooper, Judge.


     The appellant was convicted in a jury trial of possession of
a controlled substance and possession of drug paraphernalia.  He
was sentenced to one year in the county jail and fined $500.00 and
was sentenced to six years in the Arkansas Department of Correction
and fined $5,000.00, respectively.  On appeal, the appellant argues
that the trial court erred in denying his motion to suppress
without conducting an evidentiary hearing on the motion.  We affirm.
     The appellant filed a motion to suppress on August 16, 1994. 
The trial court entered an order denying the motion to suppress
after the appellant did not appear at the hearing held on November
2, 1994.   On appeal, the appellant contends that the trial court
erred in denying his motion without conducting a hearing because
the State had the burden of proving the validity of the search and
seizure.  However, the appellant failed to raise this objection
below.    
     Prior to trial, the appellant's trial counsel stated:
          We have a -- we filed a Motion to Suppress the
     marijuana and the, well, just the marijuana in this case. 
     We were set for a hearing, I think it was about a week
     ago yesterday.  The defendant did not show up and that
     Motion to Suppress was denied.

          Let me raise a Motion in Limine based largely on the
     same issue before the Court to deny -- to suppress the
     introduction of the marijuana, let's see. . . based on
     . . . it is reported to me that Samantha Stevens was the
     person who opened the door and allowed the police
     officers into the apartment.  The basis of our Motion in
     Limine to Suppress [is] that she had no authority to
     consent to the police officers to enter without a search
     warrant.

The appellant's argument on appeal was not made to the trial court
and hence it is not preserved for appeal.  Walker v. State, 314
Ark. 628, 864 S.W.2d 230 (1993).  This Court does not address
arguments raised for the first time on appeal.  Williams v. State,
320 Ark. 211, 895 S.W.2d 913 (1995).  Moreover, the proponent of a
motion to suppress has the initial burden of establishing that his
own Fourth Amendment rights have been violated by the challenged
search or seizure.  Myers v. State, 46 Ark. App. 227, 878 S.W.2d 424 (1994).  
     Affirmed.
     Pittman, Robbins, Stroud, and Neal, JJ., agree.
     Mayfield, J., dissents.
*ADVREP*CA4-A*
                             EN BANC



                                        CACR 95-602


                                             JULY 3, 1996


WILLIAM LANCE McNEELY              AN APPEAL FROM THE ARKANSAS
                                   COUNTY CIRCUIT COURT (NORTHERN
               APPELLANT           DISTRICT)

VS.                                HON. RUSSELL ROGERS, JUDGE
                                        
STATE OF ARKANSAS                  DISSENTING OPINION

               APPELLEE




                     Melvin Mayfield, Judge.


     I cannot agree to affirm this case at this point.  The
appellant, who has been paralyzed and confined to a wheelchair for
ten years as the result of an injury suffered when he broke his
neck diving into water to save a friend, is thirty years old; lives
with his mother; and smokes a little marijuana to help him live
during the day and relax enough to sleep during the night.  One
day, while he was visiting in the apartment of his girl friend,
four police officers burst into the apartment, with weapons drawn,
arrested the appellant, and seized the ounce and one-half of
marijuana and some drug paraphernalia he had in a bag lying beside
his wheelchair.  
     After a trial by jury, which finally returned a guilty verdict
after being read the "dynamite" instruction, the appellant was
sentenced as stated in the majority opinion.
     The trouble I have with this case is that appellant's attorney
filed a motion to suppress which was set for hearing prior to trial
but appellant did not appear, and the trial court entered an order
denying the motion.  Then, when counsel made a motion at the start
of the trial to suppress the marijuana seized, the court denied
that motion because the appellant did not appear at the suppression
hearing on the day the hearing had been set.
     The majority opinion affirms the judgment based on the
position that the appellant did not argue that the trial court
should still hear the motion but only argued the merits of the
motion.  The appellant contends that his right to be free from
unreasonable searches and seizures guaranteed under the Fifth
Amendment to the United States Constitution, as well as his rights
under the Due Process Clause of the Fourteenth Amendment to the
United States Constitution, should afford him a hearing on his
motion at some point.
     In Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), the
Arkansas Supreme Court considered a case where a police officer was
not present to testify at a hearing to suppress any statements the
appellant had made as the result of an interrogation at which the
absent officer asked questions of the appellant.  Our supreme court
held that the State had the burden to produce the officer at the
hearing or explain his absence.  Because it did neither, the court
remanded for a new hearing on the suppression motion.  It did not
grant a new trial and stated a new trial would only be granted if
the trial court found the confession of the appellant to be
involuntary.
     I understand that there are different circumstances in this
case and the Bell case, but when the question of effectiveness of
counsel, basic constitutional rights, and notions of fair play are
considered, I think we should follow the procedure here that was
used in Bell.
     Therefore, I dissent.