Demeko Duckworth v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION II

DEMEKO DUCKWORTH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-572

February 13, 2002

APPEAL FROM THE ST. FRANCIS

COUNTY CIRCUIT COURT

[CR-98-188, CR-99-170]

HONORABLE HARVEY LEE YATES, CIRCUIT JUDGE

AFFIRMED

In August 1998, appellant, Demeko Duckworth, pleaded guilty to the offenses of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. The trial court suspended imposition of his sentences for these offenses for a period of three years, provided that appellant satisfy certain conditions, including that he not commit an offense punishable by imprisonment during the period of suspension. On June 15, 2000, the State filed a petition to revoke the suspended imposition of sentences, alleging that on or about May 21, 2000, appellant had committed the offenses of aggravated robbery and theft of property. The trial court granted the petition following a hearing, entered a judgment of conviction, and sentenced appellant to 120 months for each count, to run concurrently with a sentence imposed in another case. For his sole point of appeal, appellant contends that the trial court erred in denying his motion for a continuance when

the victim revealed during questioning that there was another person who witnessed the offenses that served as the basis for the petition to revoke. We disagree and affirm the revocation of his suspended sentences.

At the revocation hearing, the State called Mr. Jesse Thomas to testify. Mr. Thomas testified that on May 21, 2000, he was sitting on his porch in the Indian Hills Apartments when he was approached by appellant and his girlfriend. Thomas testified that she walked up behind him and put a gun to his head, and that appellant put a gun in front of him. He stated that appellant took his gold necklace and his money, which was about $800 cash. During the State's direct examination of Thomas, the prosecutor asked, "Who was with you on your porch on May 21st of this year?" Mr. Thomas responded, "Chris Williams - Chris - I don't know his last name, but he stays at Indian Hills." The prosecutor then asked if Chris was "present when all this happened" and Mr. Thomas stated that he was.

Defense counsel moved for a postponement of the proceedings stating, "[I]n light of the testimony of Mr. Thomas, we would ask at this time that these proceedings be postponed until a time as Chris Williams can be present, whether it's twenty (20) minutes from now or - to whatever time." The prosecutor responded that the State had no intention of calling Mr. Williams, that "this is the first that I know of Mr. Williams also," and that appellant could have found out the information by his own investigation. The trial court denied the defense motion, stating, "You've had plenty of time to have any witnesses here you needed to."

The denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court's ruling is reversed only if there is an abuse of discretion. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). The burden is on the appellant to show anabuse of discretion. Id. Moreover, the appellant must also demonstrate prejudice before we will consider the trial court's denial of a continuance as an abuse of discretion that requires reversal. Id. In addition, the State cannot be held responsible for a defendant's failure to investigate the evidence. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000), cert. denied, 531 U.S. 1199 (2001). Nor is a defendant entitled to rely on discovery alone as a substitute for thorough investigation. Id.

Here, the petition to revoke was filed in June 2000 and the revocation hearing was held in November 2000, approximately five months later. Moreover, the petition to revoke was based on the aggravated robbery and theft of property offenses with which appellant was charged by information dated June 6, 2000, and which contained the name of the victim, Jesse Thomas, and an accompanying affidavit from a detective describing the events as related to him. Consequently, appellant had sufficient information at his disposal to conduct his own investigation and discover the same information that was revealed by Thomas at the hearing regarding Chris Williams. We find no abuse of discretion in the trial court's denial of the motion for a continuance, and therefore we affirm the revocation.

Affirmed.

Jennings and Crabtree, JJ., agree.