Timothy Stribling v. State of Arkansas

ca00-048

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

WENDELL GRIFFEN, JUDGE

DIVISION III

CA00-48

October 25, 2000

TIMOTHY STRIBLING AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

SEVENTH DIVISION [CR99-413]

V. HON. JOHN B. PLEGGE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Timothy Stribling appeals from his second-degree murder conviction. For reversal, he argues that the trial court erred in overruling his motion to strike certain witness testimony and in denying his request for a mistrial. We hold that appellant failed to preserve these issues for appeal because he failed to make a contemporaneous objection to the testimony and failed to request a mistrial at the earliest opportunity. Therefore, we affirm his conviction.

Appellant and David Bullock were both at the same residence on August 10, 1998. A group of people at the residence were gambling with dice. An argument erupted amongother people who were gambling and some shots were fired. The testimony as to where these shots originated was conflicting. Bullock subsequently went outside and retrieved a gun from the trunk of his car, but never reentered the residence. As appellant was leaving the residence, he observed Bullock backing into the car appellant had driven. Appellant attempted to prevent Bullock from leaving the scene, and an apparent struggle ensued. According to appellant, the gun went off as they were struggling, striking Bullock in the neck and killing him. Appellant left the scene, and the gun was not found.

Appellant was charged with second-degree murder and received a jury trial. At trial, Effrem Neely testified. Neely had previously provided police with a recorded statement in which he stated that he was unable to identify either of the parties who were standing close together when the shots were fired; that he could not see a gun; and that all he could see was a flash of light. However, at trial, he testified that he witnessed the incident and that he saw appellant holding the gun when the shot was fired.

After the prosecutor asked twenty-five more questions, appellant requested a bench conference to determine if a subsequent undisclosed statement had been taken from Neely. The prosecutor indicated that a subsequent statement had not been taken, but that Neely had been interviewed before trial. At this point, appellant asked the trial court to make the notes from Neely's interview available to him, but did not request that Neely's testimony be stricken or that he be granted a mistrial.

Shortly before the conclusion of Neely's cross-examination, appellant argued that Neely's conflicting statements were exculpatory, and that the prosecution was required toprovide exculpatory information, pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Again, he failed to request that Neely's testimony be stricken or that he be granted a mistrial. Apparently, the stenographer's machine was not recording during this time, and the court allowed appellant to renew his objection when the machine was operating properly, but this was subsequent to the conclusion of Neely's testimony. At this point, appellant asked the trial court to strike Neely's testimony or to grant a mistrial on the basis that the prosecutor had committed a discovery violation under Brady by failing to inform him of the substance of Neely's pretrial interview. The trial court denied appellant's motions. Appellant was convicted of second-degree murder, and was sentenced to serve ten years in the Arkansas Department of Correction.

Appellant maintains that the trial court erred in refusing to strike Neely's "surprise" testimony identifying appellant as the person who shot the victim and in not granting a mistrial. We hold that appellant waived these arguments because he did not raise them at the earliest opportunity.

The record indicates that appellant's first objection to Neely's testimony was as follows:

And what did you see happen when you looked around the corner with regard to the defendant and David Bullock?

Well, for the short time that I looked around the corner, all I saw was the flash of light. I heard the boom and I saw the tallest of the two fall.

Okay. And the tallest of the two was who?

David.

And who was the person - what was the flash of light and what was

the boom?

It was a gun.

And who was doing the shooting of the gun?

The defendant.

Appellant's

Attorney: Your Honor, I'm going to object to this. He's leading and leading and leading. I've objected to it. I'd ask that he not lead.

After the prosecution asked Neely twenty-five additional questions, appellant's counsel requested a sidebar, and asked if the State had taken another statement from the defendant. Appellant did not request that Neely's testimony be stricken at this point. Instead, he asked for access to the prosecutor's notes from Neely's second interview. Shortly before the conclusion of Neely's testimony, appellant again raised this argument, but did not ask that the testimony be stricken and did not request a mistrial. Only after appellant concluded cross-examination of Neely, did he ask for the testimony to be stricken and request a mistrial.

It is clear that appellant's counsel did object to Neely's testimony regarding the identity of the person holding the gun at the first opportunity. However, his first objection was not to the substance of Neely's testimony. That is, he did not object on the ground that Neely's "surprise" testimony conflicted with his recorded statement - he objected on the grounds that the prosecution was leading the witness. Twenty-five questions later, appellant's counsel requested access to the prosecutor's notes, but still did not object toNeely's testimony or request a mistrial.1 He did not object to Neely's testimony or request a mistrial until after Neely's testimony was concluded.

It is well-settled that an objection must be made at the first opportunity in order to preserve an issue for appeal. See Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). See also Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996) (holding the trial court did not err in denying defendant's motion to strike a witness's testimony where the State failed to include her name on the witness list, but the defendant did not object to her testimony until after she had answered twenty-four questions); Smallwood v. State, supra (holding objection after one additional question was untimely); see Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985) (holding objection after eight additional questions was untimely). Similarly, a motion for mistrial must be made at the time the objectionable statement is made, or the issue is waived. See Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997).

We hold that because appellant waited until after Neely concluded his testimony to object to his testimony or to request a mistrial, he waived these issues on appeal.

Affirmed.

Koonce and Stroud, JJ., agree.

1 Although appellant was allowed to renew his objections after the stenographer's machine was again operational, his failure to object on this particular basis, or to request a mistrial prior to that point, appears to be unrelated to the technical problems the court experienced with the stenographer's machine.