Billy Mack Nichols, Jr. v. State of Arkansas

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JANUARY 21, 2004







Olly Neal, Judge

A jury convicted appellant of possession or use of a weapon by an incarcerated person and sentenced him to six years' imprisonment in the Arkansas Department of Correction (ADC), to be served consecutive to his previous sentence. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's brief and notified of his right to file a list of pro se points on appeal within thirty days. Appellant filed several points to which the State filed a response. We grant counsel's motion to withdraw and hold that appellant's pro se points are without merit.

The first point raised is an ineffective assistance of counsel claim by the appellant. At the start of trial, there were several colloquies in which appellant asserted claims of ineffective assistance of counsel based in part on the fact that the trial court had granted continuances requested by defense counsel to which appellant noted that he did not request. Appellant stated:

Under the State Constitution Article II, you are suppose to appoint me counsel that's effective if I'm indigent. And I am indigent. And I would like to be represented by effective counsel. This dude is certainly ineffective, he done asked for continuances for no reason at all, violated my speedy trial rights, and that's a fact. And that happened. And, you know this, and this happened in your courtroom. So, I would like to have counsel.

Nevertheless after further colloquy with the court, appellant chose to have the public defender's office represent him.

Our court will not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Anderson v. State, 353 Ark. 384,108 S.W.3d 592 (2003). Evidence of the allegation must, however, be contained in the record, and the trial court must have been given the opportunity to rule on the issue; the court will not consider a claim of counsel's ineffectiveness unless the facts surrounding the claim were fully developed either during the trial or during other hearings conducted by the trial court. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996). Our court will review claims of counsel's ineffectiveness on direct appeal provided that the allegation is raised before the trial court and the facts and circumstances surrounding the claim have been fully developed. Id.

Because this ineffective assistance claim was not fully developed either during the trial or during any other hearing conducted by the trial court, it does not provide a meritorious ground for reversal. Thus, any alleged counsel error should be addressed in an Ark. R. Crim. P. 37 post-conviction proceeding and not in a direct appeal where the issue is not preserved for review.

Prior to trial, appellant filed a pro se motion to dismiss. At a pre-trial hearing held the morning of trial, appellant argued that his trial counsel had violated his right to speedy trial and that appellant had not consented to several continuances filed by his trial counsel. In response, appellant's trial counsel informed the court that he had attempted to visit appellant at the Maximum Security Unit in Tucker, Arkansas and that appellant refused to meet with him; further, appellant's counsel informed the court that appellant had refused to cooperate with him even on the morning of trial. The trial court denied appellant's motion to dismiss.

Rule 28.1 of the Arkansas Rules of Criminal Procedure provides in part that "[a]ny defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3." If the defendant is to be retried following a mistrial, the time for trial shall commence running from the date of mistrial. See Ark. R. Crim. P. 28.2.

Here, the record reflects that the time between the mistrial and the new trial exceeded the twelve-month period of Rule 28.1 by nineteen days (Feb. 21, 2001 - March 11, 2002). However, Arkansas R. Crim. P. 28.3 excludes those periods of delay resulting from the request of a continuance of the defendant and his counsel. If a continuance is requested, the time is excluded from the day the request is granted until the subsequent date scheduled. See Ark. R. Crim. P. 28.3(c). The continuances requested by the defense were granted June 20, 2001 and the matter was reset on October 2, 2001, resulting in an excluded period of 105 days. Another continuance was granted on October 24 and reset for March 11, 2002, resulting in an excluded period of 139 days. Totaled, the excluded period is 244 days, placing appellant's trial well within the required twelve-month period. Furthermore, continuances granted at a defendant's attorney's request are excludable from the speedy trial time even if the defendant does not approve or is not consulted. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999).

The next adverse ruling was a hearsay objection by the State. The trial court sustained a hearsay objection by the State to testimony by appellant as to what someone had told him. Appellant's counsel conceded that appellant could not testify as to what someone else had said. Thus, he cannot complain on appeal because defense counsel conceded that the testimony was hearsay. Counsel stated, "Your Honor, I will admit that he cannot testify to what somebody else said." A party cannot complain on appeal about relief to which he agreed or sought. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

Following the jury trial, appellant was convicted of possession or use of a weapon by an incarcerated person and sentenced to six years in the ADC. Appellant's counsel failed to move for a directed verdict. Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a motion for directed verdict be made in a jury trial at the close of the evidence offered by the prosecution and at the close of all of the evidence. The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. Ark. R. Crim. P. 33.1(c). Because appellant failed to make motions for directed-verdict, this argument would not provide appellant a meritorious ground for reversal. Appellant's pro se points for reversal include assertions that (1) his counsel and the trial court conspired to thwart his constitutional right to a speedy trial, (2) his counsel was ineffective, (3) the trial court, his counsel, and the prosecution all conspired against him to strike a juror who he thought would benefit him, and (4) the jury violated his due-process rights because it demonstrated bias by believing the prosecution's witnesses instead of him.

As discussed above, appellant's right to a speedy trial was not violated. Further, appellant did not adequately preserve his claim to ineffective assistance of counsel on direct appeal although he may request post-conviction relief. Appellant also argues that "the trial court, prosecution, and Appellant's trial counsel, in accomplice to one another, struck a juror simply because the juror alleged that he had knowledge of how to make beyond reasonable doubt determination(s). Appellant believes this juror may have aided in preventing him from being convicted by proof insufficient to meet the beyond reasonable doubt standard." The record is silent as to the reason the juror was struck, and we do not know if this juror was struck for any reason other than for cause or the exercise of a peremptory challenge. Therefore, this claim has no merit.

Appellant's final pro se point is that he believes that his due process rights were denied "as the jurors ignored his testimony(s) and demonstrated bias, by convicting him by use of false evidence, in favor of the prosecution's single accused witness." It is well-settled that jurors are presumed to be unbiased and the burden is on the appellant to show otherwise. Miller v. State, 81Ark. App. 337, 101 S.W.3d 860 (2003). Furthermore, the credibility of witnesses is an issue for the jury and not the reviewing court. Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003). Accordingly, this point lacks merit.

Based upon our review of the record, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is wholly without merit. Accordingly, counsel's motion to withdraw is granted, and the judgment of conviction is affirmed.


Hart and Baker, JJ., agree.