Duke E. Ervin v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

DUKE E. ERVIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-278

November 19, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR2002-559

HON. JOHN PLEGGE, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Duke Ervin appeals the denial of his motion for a continuance of his trial on charges of first-degree battery and felon in possession of a firearm. He was subsequently convicted on both counts and sentenced to twenty years' imprisonment on each count with the sentences to run concurrently. Appellant's sole point on appeal is that the circuit court erred in denying his request for a continuance because defense counsel had a good faith belief that a guilty plea offer had been made by the State and accepted by appellant, and therefore did not subpoena appellant's girlfriend, a material eyewitness to the incident. We find no error and affirm.

The basic facts surrounding this case are not in dispute. Appellant and the victim, Marshall Williams, were friends. On October 7, 2001, appellant and Williams spent the day together at Williams's residence working on a truck. Later that day, appellant and his girlfriend, Gwen Rogers, were at the residence with Williams and his girlfriend, Terry Workman, drinking beer and having a cookout. At some point during the evening, appellant and Williams got into an argument and began shoving each other. Thereafter, appellant shot Williams in the chest. The only dispute among the three witnesses testifying was whether appellant was justified in using deadly force allegedly to protect himself from Williams. Appellant testified that he shot Williams because he was afraid Williams was going to rush him and beat him. Williams and Workman testified that the altercation between the two men was not serious enough to justify the shooting.

Just before trial was to begin, appellant moved for a continuance when it became apparent that no offer of a guilty plea was going to be made by the State. The motion was denied, and the trial commenced. When the State rested its case in chief, appellant renewed his motion for a continuance, clarifying that the basis for the motion was that appellant's counsel understood that a guilty-plea offer previously had been made by the State and accepted by appellant. Based on that understanding, appellant's counsel had failed to secure the presence of appellant's girlfriend, Rogers, who was an eyewitness to the incident and a material witness for the trial. Appellant admitted that he had not subpoenaed Rogers or otherwise secured her presence at trial.

We review the grant or denial of a motion for continuance under an abuse of discretion standard. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). An appellant must not only demonstrate that the circuit court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Id.

Arkansas Rule of Criminal Procedure 27.3 (2003) provides that a continuance shall be granted "only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case." Arkansas Code Annotated section 16-63-402 (1987) addresses continuances based on the absence of evidence or a witness. The following factors are to be considered by a circuit court on a motion for a continuance for the lack of a witness: (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; (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. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002).

Although appellant argues that he was diligent in making the motion for a continuance as soon as he realized there was no plea offer, the State maintains that appellant was not diligent by failing to subpoena his witness for trial and by failing to move for a continuance until the day of trial. See Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995). Additionally, Ark. Code Ann. § 16-63-402(a) mandates that an affidavit be filed to justify a continuance due to a missing witness when the State objects to the continuance. Id. Appellate courts have held that a denial of a continuance when the motion is not in substantial compliance with Ark. Code Ann. § 16-63-402(a) is not an abuse of the circuit court's discretion. Id. Appellant asserts that the reason he did not fill out an affidavit is because he did not have a chance to do so. He states that the circuit judge denied the request and told the State to call its first witness. Appellant also maintains that he did not prepare an affidavit in compliance with Ark. Code Ann. § 16-63-402(a) because he believed that there would not be a trial based on a plea agreement.

The State argues that because it objected to the continuance, the lack of an affidavit is fatal to this argument. See Wilson, supra. Appellant responds that the State did not object to his renewed motion for a continuance, and did not request that appellant's counsel prepare a "missing witness" affidavit. We hold that because the State failed to do those two things, appellant's failure to prepare a "missing witness" affidavit is not in and of itself a basis for affirmance. See Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997) (finding that the State did not object to a continuance; therefore, appellant's failure to submit an affidavit was not fatal to his argument).

However, appellant cannot prevail because there is no evidence of exactly what Rogers's testimony would have been at trial. Instead, he alleged, both at trial and on appeal, that she saw everything and would have recounted a different story from that told by Williams and his girlfriend. Although appellant argues that there would be a high likelihood of procuring Rogers's attendance at a future trial, he can only allege that the probable effect of Rogers's testimony would have been that she would have corroborated appellant's testimony regarding Williams's aggressive behavior toward appellant. The appellant has therefore failed to show that prejudice resulted from not adding her testimony to the "swearing match."

Finally, appellant does not suggest that Rogers's testimony would have convinced the circuit court of his innocence or substantiate his self-defense claim. Instead, he argues that Rogers's testimony regarding Williams's aggressive behavior might have persuaded the circuit court to sentence appellant to a more lenient sentence because a crime victim's aggressive role or provocation of an incident is a mitigating circumstance justifying a downward departure from the sentencing guidelines. See Ark. Code Ann. § 16-90-804(d)(1)(A) (Supp. 2003). Although the sentencing guidelines called for appellant to be sentenced to 360 months' imprisonment, the circuit court judge departed from the guidelines and stated that extenuating circumstances justified the lesser twenty-year sentence. It would be speculative to hold that the circuit court judge might have further reduced appellant's sentence based on Rogers's potential corroborating testimony. Because appellant failed to make a showing of prejudice resulting from the denial of the motion for continuance, we cannot say that the circuit court abused its discretion.

Affirmed.

Hart and Bird, JJ., agree.