Donald E. Webb v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION I

DONALD E. WEBB

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 01-99

SEPTEMBER 12, 2001

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[CR-2000-496]

HON. WILLIAM A. STOREY, CIRCUIT JUDGE

AFFIRMED

Donald Edwin Webb was convicted by a jury of ··²SearchTerm²····²SearchTerm²··driving while intoxicated, fourth offense, and sentenced to six years imprisonment in the ··²SDU_2²····²SDU_2²··Arkansas Department of Correction. On appeal, Webb argues that the trial court erred in 1) allowing testimony of a witness over his objection where the State failed to provide a prospective witness list prior to trial, and 2) denying Webb's motion for new trial without first conducting a requested hearing. We affirm.

According to trial testimony, on the morning of January 18, 2000, Springdale police officer Billy Turnbough observed a pickup truck being driven by Webb cross the double-yellow dividing line. Officer Turnbough followed the truck for a short distance and into the Liquor Depot parking lot. Turnbough observed the truck pull up to the drive-through window, and then drive away from the store and return to the roadway.

According to Turnbough, he pulled the vehicle over after he observed it swing wide into the left lane when leaving the parking lot. Turnbough stated that when he approached Webb, who had exited the vehicle, he noticed the strong odor of intoxicants about his person. He further stated thatWebb denied being drunk and claimed to have had only one beer.

Turnbough performed a horizontal gaze nystagmus field sobriety test, which Webb failed. Turnbough discontinued any additional field sobriety tests because Webb claimed to have a physical impairment, a missing toe. Based on Webb's driving, the strong odor of intoxicants, and Webb's failure of the field sobriety test, Turnbough arrested Webb for driving while intoxicated.

In addition to Officer Turnbough, the State offered testimony from Officer Orona, who transported Webb to the police station upon his arrest. Orona testified that he could smell the odor of intoxicants coming from Webb's person. He also testified that Webb appeared unbalanced and that his speech was slurred.

Webb controverted Officer Turnbough's account of the incident. Webb claimed he was not driving improperly and that he never pulled back onto the road after driving away from the drive-through window. Likewise, Donald McSweeney, a saleperson at Liquor Depot and witness for the defense, testified that Webb did not pull out of the parking after leaving the window. He also testified that he did not notice an odor of intoxicants coming from Webb's vehicle.

On the day of trial, defense counsel moved to have Officers Turnbough and Orona excluded as witnesses because the prosecutor failed to provide a witness list to defense counsel pursuant to his discovery request. The prosecutor explained that defense counsel was provided a police report of the incident, which included the names of Officers Turnbough and Orona. Furthermore, the prosecutor stated that his office had an "open-file" policy. The trial court found that the prosecutor had substantially complied with discovery rules and denied the motion.

Webb was convicted of Driving While Intoxicated (4th Offense) and was sentenced to six years in the Arkansas Department of Correction. On August 16, 2000, Webb filed a motion for new trial, arguing that, in addition to the trial court erroneously allowing Officer Orona to testify, there was newly discovered evidence in the form of a new witness and that the combined effect ofOrona's testimony and the newly-discovered witness resulted in Webb receiving ineffective assistance of counsel. One week later, Webb requested a hearing on the motion for new trial. On August 24, 2000, the trial court entered an order denying Webb's motion for new trial without conducting a hearing on the matter.

Webb first argues that the trial court erred in failing to grant his motion to exclude the testimony of Officer Orona. The State contends that the issue is not preserved because Webb failed to object to Officer Orona being called as a witness at the first opportunity do so. Our appellate courts have consistently held that a party who does not object to introduction of evidence at first opportunity waives such argument on appeal. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). This also applies to objections to discovery violations. Id.

The State contends that Webb was aware that Officer Orona was going to be called as a witness prior to voir dire as the prosecutor announced that he intended to call him, and asserts that Webb should have objected at that time. The purpose of requiring counsel to object at the first opportunity is to provide the trial court with an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). Webb allowed voir dire to continue and conclude before objecting to the officers being allowed to testify. While Webb did not object at the first opportunity, he did object prior to the officer's testimony at trial; the court thus had ample opportunity to correct any errors that may have arisen during the trial. Consequently, the issue is preserved and we must address the merits of this argument.

On appeal, Webb challenges only the testimony of Officer Orona. Webb contends that he was prejudiced in his counsel's inability to properly cross-examine Officer Orona. He notes that the cross-examination of Officer Turnbough, whom defense counsel anticipated would testify, consisted of seventeen pages of transcript testimony, while the cross-examination of Officer Orona only consisted of two transcript pages. Webb also contends that he was prejudiced during pleanegotiations by the State's failure to disclose. He argues that had defense counsel known that Officer Orona would testify, his advice to Webb would have been substantially different and that as a result Webb did not receive effective assistance of counsel in this respect. These arguments, however, must fail.

The prosecuting attorney is required to disclose to defense counsel, upon request, the names of any persons whom he intends to call as witnesses at any hearing or at trial. Ark. R. Crim. P. 17.1(a). If the prosecutor fails to comply with discovery requirements, the trial court may order compliance, grant a continuance, exclude the evidence, or order other appropriate relief. Ark. R. Crim. P. 19.7(a). However, when there has been a failure to comply with discovery procedures, a trial court is not required to suppress evidence unless prejudice will result. Hall v. State, 306 Ark. 329, 811 S.W.2d 318 (1991). Furthermore, a prosecutorial discovery violation does not automatically result in reversal. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). Moreover, Appellant cannot use the discovery rules as a substitute for his own investigation. See Irvin v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). We will not reverse absent a showing of prejudice. Id. Our supreme court has held that a defendant is not prejudiced by the State's failure to provide a separate prospective witness list when the defense had access to those names and the relevant reports. See Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992). Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1992); In Lewis, our supreme court considered the State's failure to provide a separate witness list to the defendant and his subsequent objection. The State did, however, provide reports which contained the names of the key witnesses and the information which would comprise the crux of their testimony. The supreme court concluded that Lewis failed to show how he was prejudiced by the State's failure to provide a witness list when it was clear that the Statewas going to rely on two witnesses whose names were contained in the reports that were provided to the defendant, even though the reports contained the names of some twenty-two potential witnesses.

The reasoning in Lewis is applicable to the case at bar. In the present case, defense counsel had been provided a copy of Officer Turnbough's police report. Webb has not abstracted the report, however, it is undisputed that the report contained Officer Orona's name as a witness. In addition, the prosecutor's "open file" policy made any additional reports available to defense counsel. Webb was aware of Orona's involvement in his arrest and incarceration as Orona transported Webb from the location of his arrest to the police station. Furthermore, given the limited number of possible witnesses, along with defense counsel's knowledge that the State was not offering a blood or breath test into evidence, defense counsel should have anticipated Officer Orona's testimony as he was one of two officers who had contact with Webb during the arrest. Moreover, Webb's argument cannot prevail because of his failure to request a proper remedy in his objection. Webb's only request was to exclude the officer's testimony outright. However, any error could have been corrected by requesting a continuance or a sufficient recess to interview the witnesses. A defendant's failure to request proper relief cannot inure to his benefit. See Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993).

Webb next argues that the trial court erred in denying his motion for new trial without first conducting a hearing. He contends that a new trial was warranted because of newly discovered evidence, the State's failure to comply with discovery rules, and the ineffective assistance of counsel, which resulted from the cumulative effect of these two matters. Webb contends that the trial court erred in not conducting a hearing on the motion as required by Rule 33.3 of the Arkansas Rules of Criminal Procedure and that the case should be remanded for a hearing to properly determine the merits of the motion.

Rule 33.3 states that a hearing should be held on such a motion when requested. Crouch v. State, 62 Ark. App. 33, 968 S.W.2d 643 (1998). However, a hearing is not required when it would be "superfluous." Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996).

Webb first argues that a newly-discovered witness, Ken Matthews, could testify that he witnessed the arrest and that Webb never left the Liquor Depot parking lot after driving away from the drive-through window. An affidavit was attached to the motion, which contained this assertion. However, this proposed testimony is identical to a portion of the testimony provided by Don McSweeney. Evidence which is only cumulative to evidence already admitted, or which tends only to impeach evidence already admitted is not sufficient grounds for granting a motion for new trial. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988); Hicks v. State, supra. As the evidence does not provide a basis to grant the motion, a hearing would have clearly been "superfluous."

Webb's second point in his motion for new trial, that the trial court erred in allowing Officer Orona to testify over defense counsel's objection, is likewise without merit. In Halfacre v. State, 265 Ark. 378, 578 S.W.2d 237 (1979), the supreme court addressed the issue of denial of a post-conviction motion without the benefit of a hearing. In Halfacre, two co-defendants petitioned the trial court to consider their claims of ineffective assistance of counsel. The trial court denied the motion without conducting a hearing. Our supreme court, in reversing the trial court, noted that the motion "was not couched in conclusory language, but specifically recited instances which could be considered as a basis for finding that [the defendants'] constitutional right to effective assistance of counsel had been denied." Id.

The court in Halfacre considered the motion to be worthy of a hearing due to specific instances that warranted additional fact-finding to determine whether the defendants received effective assistance of counsel. However, the issues raised by Webb do not warrant additional fact finding. Regarding the testimony of Officer Orona, no additional facts are necessary, rather Webbhas essentially restated the same objection made to this testimony at trial. Consequently, no further hearing was necessary on this issue.

For his final point in his motion for new trial, Webb asserted that the cumulative effect of the denial of his motion to exclude Officer Orona's testimony and the newly-discovered witness results in Webb receiving ineffective assistance of counsel. However, the trial court did not rule on the ineffective-assistance-of-counsel issue in his order denying the motion for new trial. This court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal has the burden of obtaining a ruling on that point. Vanesch v. State, 70 Ark. App. 277, 16 S.W.3d 306 (2000).

Affirmed.

Pittman and Hart, JJ., agree.