Eric L. Avett v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

TERRY CRABTREE, JUDGE

DIVISION I

ERIC L. AVETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-911

JUNE 6, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-3978]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

The Pulaski County Circuit Court convicted the appellant, Eric Avett, of possession of a controlled substance and possession of drug paraphernalia and sentenced him to a total of seventy-eight months' imprisonment. On appeal, he contends that the trial court erred by denying his motion to dismiss on the ground that the prosecution violated its discovery obligations by failing to disclose the method of entry of the officers who executed a warrant at the apartment where appellant possessed the contraband. Appellant's argument is not preserved for review, therefore we affirm.

At trial, the State called Officer Terry Kuykendall of the North Little Rock Police Department as its first witness. On direct examination, Officer Kuykendall testified that as the officers approached the apartment to execute a warrant, appellant saw them through a window and threw down a plate he had in his hands. Upon cross-examination by defense

counsel, Officer Kuykendall added that the officers knocked, yelled "police officers," and then waited at least five seconds before hitting the door with a battering ram. He also stated that his report of the search did not mention the entry, or that the officers had used a battering ram.

At the close of the State's case, which was also the close of the evidence, defense counsel moved for a directed verdict and moved to have the case dismissed "on the basis of violation of knock and announce." Counsel noted that he was raising the issue at that time because he was not aware until the officers testified that they had not knocked and announced, because reports of the search did not mention it. The prosecutor responded that the time to raise the issue was at the omnibus hearing. He added that appellant was in the living room at the time of the officers' entry and that appellant should have been aware that a battering ram was used on the door. Appellant's counsel responded that it was a discovery violation and that he was surprised by Officer Kuykendall's testimony of which he did not have prior notice. After this discussion, the trial court denied appellant's motion for a directed verdict. Later, appellant renewed all of his motions, and the court again stated that it was denying his motion for a directed verdict.

As an initial matter, it is not entirely clear that appellant ever received a ruling on his motion to dismiss. Without a ruling by the trial court, there is nothing for this court to review on appeal. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). Even if the denial of appellant's directed-verdict motion were construed as a denial of his motion to dismiss, appellant's argument is still not preserved for appellate review because he did not object atthe first opportunity. By counsel's own admission, he learned of the alleged violation of the knock-and-announce rule during the testimony of Officer Kuykendall, the State's first witness, but he did not allege a discovery violation until the close of the State's case and the close of all the evidence. In order to preserve for appellate review a claim about an alleged discovery violation, an appellant must object at the first opportunity. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). In this case, appellant failed to raise his discovery-violation argument at the first opportunity, and thus, his argument is not preserved for our review.

Stroud, C.J., and Hart, J., agree.