Andrew Jackson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION III

ANDREW JACKSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-202

September 19, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR200O-612, CR98-90

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

This is an appeal from appellant's conviction for second-degree battery and probation revocation. Appellant contends that the trial court erred in denying a continuance because his counsel was not prepared for trial. We affirm.

On February 29, 2000, appellant was charged with first-degree battery in violation of Ark. Code Ann. § 5-13-201 (Repl. 1997). The information alleged that appellant, with the purpose of causing serious physical injury, caused serious physical injury to another by means of a lead pipe and a two-by-four piece of wood. At that time, appellant was on probation for convictions of possession of a controlled substance and tampering with physical evidence. The State also petitioned to revoke his probationary sentence based on the first-degree battery charge.

Appellant's trial was held on Wednesday, September 6, 2000. Prior to the beginning of the trial, appellant's counsel requested a motion for continuance, stating the following reasons: (1) appellant's counsel had not discussed the case with him until the morning of trial; (2) appellant intended to hire his own attorney but had not been able to because he had been in custody until two or three weeks before trial; (3) appellant did not know that the trial was set for that date despite his notice; (4) appellant's counsel did not receive discovery until four days before trial, although numerous attempts had been made to obtain the file; and (5) on the morning of the trial, appellant gave his counsel names of several witnesses who were present at the altercation. The State responded by reminding the trial court that the case had been continued in April 2000 in order for appellant to hire a private attorney.

Upon questioning from the trial court, appellant's counsel conceded that it was not the State's fault that he did not receive the State's file until four days before trial. The trial court also asked appellant's counsel what would be the substance of the missing witnesses' testimony. Counsel replied that their testimony would be that the victim was the aggressor and the one who struck appellant with one of the boards. Counsel also indicated that there was medical evidence to substantiate that appellant's foot was broken by one of the boards. However, appellant's counsel admitted to the trial court that he had not made any efforts to personally talk to these witnesses because he had just learned of their names fifteen minutes prior to trial. With respect to hiring a private attorney, counsel did not know why appellant had delayed in hiring an attorney, since the case had been continued for that reason in April 2000. Appellant had been in custody for part of that time, but had been out for two to three weeks prior to trial. During that time, appellant talked to a private attorney and had been quoted a price for representation. Appellant was in the process of determining whether he could afford that attorney or whether he needed to talk with another attorney. Appellant stated that he had inherited money to pay for an attorney. The State did not indicate that any prejudice would result from a short continuance, but did note that all of its witnesses were present, including a doctor from the hospital. The trial court denied the motion for continuance.

After the State rested, appellant's counsel readdressed the motion for continuance andrequested a recess to allow him to get some of the witnesses that appellant mentioned. The trial court granted the motion for recess, and reset the case for the following Monday, September 11, 2000, at 1:30 p.m. At the conclusion of the trial, appellant was found guilty of second-degree battery. The trial court also found that appellant violated the conditions of his probationary sentence and revoked his probation.

The grant or denial of a continuance is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001). The following factors are to be considered by the trial court: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id. Additionally, the appellant must show prejudice from the denial of the continuance, and when a motion is based on the lack of time to prepare, we consider the totality of the circumstances. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). Appellant bears the burden of showing prejudice. Id. Finally, the lack of diligence alone is a sufficient cause to deny a continuance. Id.

While appellant stated several grounds in arguing his motion for continuance to the trial court, the only ground pursued on appeal is appellant's inability to obtain the State's file. Appellant contends that he acted diligently in pursuing the State's file and because he did not timely obtain it, his ability to cross-examine witnesses was prejudiced. However, appellant does not specifically state how his ability to cross-examine was prejudiced, and he failed to abstract the trial testimony.

Appellant's failure to timely obtain the State's file, to seek private counsel, and to speak withthe appointed lawyer prior to trial amounts to a lack of diligence. The trial had been continued five months earlier for appellant to seek private counsel, which he failed to do. Appellant's counsel explained that appellant was in custody until two to three weeks before trial. The supreme court has affirmed the denial of a continuance where the appellant, through his own actions, was unavailable for months before trial, making it impossible for his counsel to prepare his defense, appellant had a number of continuances, and the trial court thought appellant was stalling. Lovett v. State, 330 Ark. 33, 952 S.W.2d 644 (1997). Moreover, there is no indication that appellant's counsel's inability to obtain the State's file until four days before trial was caused by any wrongdoing by the State. Appellant's counsel, upon questioning from the trial court, conceded that it was not the State's fault that he did not receive the State's file until four days prior to trial. Thus, the appellant's lack of diligence alone is a sufficient basis to affirm. See Anthony, supra.

In addition to appellant's lack of diligence, he has failed to show how he was prejudiced by the trial court's denial of the motion for continuance. Appellant makes the bare assertion that his ability to cross-examine witnesses was prejudiced; however, he failed to specify, other than in general terms, what his counsel failed to do that could have been done or what counsel did that he would not have done, if he had been afforded additional time to prepare. Additionally, appellant did not abstract any of the trial testimony, including counsel's cross-examination of the State's witnesses or the direct examination of defense witnesses called after the recess. Because the appellant failed to demonstrate prejudice, we cannot say that the trial court abused its discretion in denying the motion for continuance.

Finally, appellant contends that the denial of the motion violated his Sixth Amendment right to effective counsel. Appellant did not raise this argument below, and the appellate court will not consider an ineffective assistance of counsel argument on direct appeal unless the issue was raisedin a motion for new trial. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997).

Affirmed.

Robbins and Bird, JJ., agree.