Stanley I. Nelson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

STANLEY I. NELSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-867

May 7, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2-1-936]

HONORABLE DAVID B. BOGARD

JUDGE

AFFIRMED

The appellant, Stanley Nelson, was found guilty in a bench trial of unlawfully discharging a firearm from a vehicle in the first degree, a class Y felony and violation of Ark. Code Ann. § 5-74-107 (Repl. 1997), for which he was sentenced to a term of thirty years in prison. Appellant raises three issues for reversal. He contends that: (1) the trial court's lack of impartiality and failure to recuse sua sponte denied him a fair trial; (2) the evidence is insufficient to sustain the verdict; and (3) the thirty-year sentence imposed constitutes cruel and unusual punishment. We affirm.

On the evening of December 21, 2000, appellant was forcefully removed from a club called Hadley's for underage drinking. Ozell Gates, one of the bouncers, testified that he was jumped from behind by appellant's friends as he was removing appellant from the barand

that a fight then ensued. He said that after the fight he heard one of appellant's friends say, "This ain't over yet." Another bouncer, Harry Coleman, also heard appellant and one of his friends make similar remarks.

Preston Robinson, Jason Howard, and Quintas Williams were standing in line outside the club when appellant was escorted out. Mr. Robinson said that he did not see this person's face but that the person who had been thrown out was wearing jeans and an orange, hooded jacket. He said that the person in the orange jacket left but came back five minutes later and that he heard this person say that he was going to come back with a gun. Robinson testified that about fifteen or twenty minutes later a white SUV drove by and that four shots were fired from the passenger side of the vehicle. He said that the person who was firing the shots was wearing the same type of orange, hooded jacket as the person who had been kicked out of the club.

Jason Howard testified that two or three people were escorted out of the club and that one of them was wearing a bright orangish-red garment with a hood. Later, he saw a person hanging out of the passenger side of an SUV firing a gun. He said that the shooter was wearing an orangish-red garment. Howard testified that appellant was not one of the persons who had been escorted out of the club.

Quintas Williams testified that, sometime after appellant had been thrown out, appellant got out of a gold-colored SUV and began cussing in a rage. Williams said that he hit the ground when he saw that appellant was waving a gun and that he then heard at leastthree gunshots. Because he was taking cover, he did not see the shots being fired, but he saw the vehicle driving away after the shooting had stopped.

Sabrina Manley was also standing in line outside of the club. She saw appellant being kicked out, and a friend of hers told her that his name was Stanley. Ms. Manley was shot in the arm during the shooting. The bullet ruptured an artery and shattered her elbow. During surgery, an artery was taken from her thigh to replace the damaged one, and she required a transfusion to replace the large quantity of blood she had lost. Her arm swelled so much during the lengthy surgery that it was necessary to leave the wrist-to-shoulder incision open for eight days. During her fourteen-day hospitalization, bone fragments were removed from her elbow, and pins, screws, and wiring were inserted to hold the bones in place. After this apparatus was removed, she wore a cast for five weeks. A skin graft was then performed because her arm had not healed. Ms. Manley testified that she has a thirty-degree range of motion in her arm, that she has nerve damage, and that she cannot use her hand very well. At the time of trial, she was still undergoing physical therapy.

Detective Steven Moore testified that Ms. Manley's injury was the worst he had seen for one that was not a life-threatening injury. He said that appellant was arrested after Mr. Williams identified appellant in a photographic lineup. In an interview, appellant told Moore that he was at the club that night and had been kicked out, but he denied any involvement in the shooting.

Rachella Rose, appellant's girlfriend, testified that appellant had been at her houseearlier in the evening, that he was wearing a gray sweatshirt with blue writing, and that he was driving her car that night, a blue Camry. To her knowledge, appellant never had a gun. She said that appellant and his friends returned to her house at around 1:30 a.m. and that appellant was angry about being thrown out of the club. Ms. Rose testified that, after about forty-five minutes, appellant had calmed down and that he took his friends home and then came back to her place. She said that appellant had not said anything about returning to the club to retaliate against the bouncers.

Christopher Roy was one of appellant's friends who was with appellant that night. He said that appellant was not wearing orange but that appellant had on a gray sweater. He said that they left the club and went to appellant's girlfriend's house and that they were not involved in the shooting.

Appellant testified that he went straight to his girlfriend's house after he had been kicked out of the club. He said that he was not wearing orange that night and that he did not have a gun. He denied that he had fired a gun at Hadley's.

Although the sufficiency issue is listed as his second argument, preservation of appellant's right to freedom from double jeopardy requires us to examine that point before we review trial errors. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). A person commits unlawful discharge of a firearm from a vehicle in the first degree if he knowingly discharges a firearm from a vehicle and thereby causes death or serious physical injury to another person. Ark. Code Ann. § 5-74-107(a)(1) (Repl. 1997). Appellant has failed,however, to preserve his sufficiency argument for appeal. Rule 33.1(b) of the Arkansas Rules of Criminal Procedure provides that, in a nonjury trial, if a defendant moves for dismissal at the conclusion of the prosecution's evidence, then he must renew the motion at the close of all the evidence. Rule 33.1(c) provides that the failure to comply with this rule constitutes a waiver of any question pertaining to the sufficiency of the evidence. Because appellant did not renew his motion for dismissal at the close of the case, his sufficiency argument was waived. See State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002). Even if we were to address appellant's argument, we could not conclude that it had merit. The evidence showed that appellant was kicked out of the club that night, and witnesses testified that the person escorted out was wearing an orange-colored, hooded jacket. Appellant was seen in possession of a firearm moments before the shots were fired, and witnesses stated that the shots were fired from a vehicle and that the shooter was wearing the same type of clothing as the person who had been kicked out of the club. The foregoing evidence is substantial and is thus sufficient to support the guilty verdict.

In his next point, appellant contends that the trial judge's lack of impartiality and his failure to recuse sua sponte denied him a fair trial. Appellant bases his argument on instances where the trial judge asked questions of Mr. Williams and Ms. Rose in a "hectoring and intemperate way." He contends that the judge was convinced of the appellant's guilt, that the judge expressed irritation with these witnesses, and that it is thus clear that the judge was partial to the State and biased against the defense. This argumentis also being raised for the first time on appeal. In the absence of an objection at trial to the court's conduct or a request for recusal, the issue of judicial bias cannot be raised for the first time on appeal. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981); Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). Even so, we find no support for appellant's argument in this record. Mr. Williams' testimony differed from that of Mr. Robinson and Mr. Howard in that he placed appellant standing outside the SUV. The judge's questions were aimed at disclosing whether or not Mr. Williams had actually seen the shots being fired, which was critical in that the crime appellant was accused of committing requires that a weapon be discharged from a vehicle. With regard to Ms. Rose, the judge's questions focused on the possibility that appellant had changed clothes. This, too, was important given that the shooter was identified as wearing orange clothing, whereas there was opposing testimony that appellant was wearing gray clothes that night. From our review, the trial judge was merely trying to clarify the testimony of these witnesses, and we detect no irritation nor intemperate conduct on the part of the trial judge, who was sitting as the trier-of-fact.

Appellant's remaining argument is that his thirty-year sentences constitutes cruel and unusual punishment. As with the other issues, appellant did not make this argument below, and we do not address such issues in the absence of an objection. Wright v. State, 327 Ark. 455, 939 S.W.2d 835 (1997). Even constitutional arguments are not considered for the firsttime on appeal. Adams v. State, 319 Ark. 381, 892 S.W.2d 455 (1995). We note, however, that the sentence appellant received was well within the statutory range for a class Y felony, which is from ten to forty years, or life imprisonment. Ark. Code Ann. § 5-4-401(a)(2) (Repl. 1997).

Affirmed.

Stroud, C.J., and Robbins, J., agree.