Donnalson Duan Brown v. State of Arkansas

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CACR 03-392

April 7, 2004







John F. Stroud, Jr., Chief Judge

Appellant, Donnalson Brown, was charged with criminal attempt to commit capital murder, battery in the first degree, possession of firearms by certain persons, and habitual offender. The offense of felon in possession of a firearm was severed from the other offenses and tried separately. Appellant was tried by a jury on this separate charge as a habitual offender and found guilty. He was sentenced to forty years in the Arkansas Department of Correction. He raises four points of appeal: (1) the trial court erred in denying him his right to a speedy trial; (2) the trial court erred in denying his motion to quash the jury; (3) the trial court erred in admitting into evidence the testimony of Christopher Todd Nethercutt; (4) the trial court erred in denying his motion for a directed verdict. Finding no error, we affirm.

For double jeopardy reasons, we must consider a challenge to the sufficiency of the evidence before other points that are raised. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001). A directed-verdict motion is a challenge to the sufficiency of the evidence. Murphy v. State, ____ Ark. App. ____, 117 S.W.3d 627 (2003). Consequently, we will first address appellant's fourth point of appeal, in which he contends that the trial court erred in denying his motion for a directed verdict.

When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we review the evidence and all reasonable inferences in the light most favorable to the State and will affirm if the finding of guilt is supported by substantial evidence. Murphy, supra. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another that passes beyond mere speculation or conjecture. Id. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003).

Here, viewing the evidence in the light most favorable to the State, we conclude that the verdict was supported by substantial evidence. Anthony Wayne McCool, the victim, testified that on August 25, 2001, he was involved in an altercation at a house on Hiland Street in Benton, Arkansas. He said that there was a black male in the house at the time, who was approximately six feet tall and wore dredlocks. He stated that it was not possible for him to identify the black male inside the house, but that on that night when he turned to look at the man, the man reached behind his back. McCool stated that he thought the man was drawing a gun, so he ran out of the door, even though he did not actually see a gun. He said that when he crossed the fence, he started hearing gunshots, and that although he was struck

he was still able to run after the first three shots, but then he could not feel his legs anymore. He said that he was not able to see who was doing the shooting. He said that he crawled to a corner and that a neighbor came out and stayed with him until the EMTs and police arrived.

Christopher Todd Nethercutt testified that he knows appellant; that he had conversations with him about four or five months before August 25; and that during those conversations appellant told him either that he had, or had had, a gun and that it was a "Glock." Nethercutt said that he never actually saw the gun.

Robert Roe, an officer with the Benton Police Department, testified that he was involved in the investigation of the August 25 incident. He explained that he is familiar with the "Glock" handgun and that there are nine-millimeter and .40 caliber versions. He stated that he recovered six nine-millimeter shell casings from the scene.

Antonio Moses Credit testified that on August 25, he and others, including appellant, were at appellant's house on Hiland. He said that he and appellant were the only black males present. He stated that his own hair was short and that he never wore it in braids. He explained that appellant's hair was long at that time and was worn in regular braids. He said that he saw the scuffle between appellant and a white male who he identified as Anthony McCool; that he saw McCool run out of the house at the front; that appellant followed; and that appellant had a firearm and fired shots at McCool.

The parties stipulated that appellant had been convicted of a felony prior to the date the incident occurred, August 25, 2001. The State rested and appellant moved for a directed verdict, recounting the inconsistencies in the testimony and the unreliability of Credit's testimony. Appellant rested without calling any witnesses.

Appellant's challenge to the sufficiency of the evidence is based primarily upon his assertion that the eyewitness, Antonio Moses Credit, was not credible and that the other evidence in the case was inconsistent. Weighing the testimony and determining the credibility of the witnesses are matters for the fact finder. Polk, supra. Moreover, the testimony of one eyewitness alone is sufficient to sustain a conviction. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). We find that there was substantial evidence to support the jury's verdict.

Appellant also contends that the trial court erred in denying him his right to a speedy trial. We find no error.

Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Ark. R. Crim. P. 28.3. Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Id. If prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Id. It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Id. Once a defendant establishes a prima facie case of a speedy-trial violation, the State bears the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. Id. A contemporaneous objection to an excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. Id.

Here, appellant's date of arrest was August 26, 2001, and because he was thereafter continuously held in custody, that is when his speedy-trial time began to run. The significant dates can be summarized as follows:

8-26-01 Arrest

1-8-02 Defendant asked for a continuance because his lawyer was sick, and he wanted a new lawyer anyway. A new trial date was set for March 13, 2002.

3-13-02 Defendant asked for a continuance because he did not want the appointed attorney to represent him. The court asked if he wanted another attorney and he responded that he did. However, he said that he did not want a continuance, commenting that he would represent himself. He immediately changed his mind, however, and agreed with the appointment of a new attorney.

3-21-02 A new public defender was appointed and appeared. The trial was set for July 31, 2002.

7-31-02 State asked for a continuance because a critical witness did not appear for trial.

10-2-02 State asked for a continuance because two witnesses, the victim and his wife, did not appear for trial.

10-22-02 The trial took place.

Appellant summarizes his argument on appeal as:

The Appellant contends that he was not tried within twelve months of his arrest on August 26, 2001, and did everything possible to preserve his right to a speedy trial within that period of time, including trying to represent himself. The State failed to meet its burden of proof to show that the time period from January 8, 2002, through July 31, 2002, was chargeable to Appellant and the delays were the result of the Appellant's conduct or otherwise justified, and therefore, the trial court erred in not dismissing Appellant's case for lack of speedy trial.

He further contends that during the period from January 8, 2002, through March 21, 2002, he was forced to choose between his constitutional right to be represented by counsel or his constitutional right to have a speedy trial. We find no violation of the speedy-trial rules.

Appellant focuses upon the January 8, 2002 to July 31, 2002 time period. On January 8, appellant's counsel was ill, and on March 13, appellant was not pleased with his representation and requested new counsel. The periods of delay associated with these events are attributable to the appellant, not to the State. The number of days from arrest to trial was 422, which is fifty-seven days beyond the 365-day limit for trial. The period from January 8, 2002, to March 21, 2002, which was the date that the new public defender was appointed, consists of seventy-two days, which is more than enough to bring appellant's trial date within the rule. Moreover, we do not find any record of appellant making the argument at trial that he makes on appeal, regarding being forced to choose between a speedy trial and his right to counsel. Neither do we find any arguments at the trial level that set forth the periods of time that he believed should be charged to the State and why, thereby developing the additional argument that he makes now on appeal. Finally, while there were motions for appellant to be released pursuant to Rule 28.2(a), which deals with releasing a prisoner on his own recognizance if he is not brought to trial within nine months, those arguments became moot following his trial and conviction. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). In short, we find no basis for reversing on this point.

Appellant next contends that the trial court erred in denying appellant's motion to quash the jury. We disagree.

A trial court's refusal to quash a jury panel is reviewed for an abuse of discretion. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Appellant acknowledges that a three-prong test must be satisfied in order to establish a prima facie case of the deliberate or systematic exclusion of jurors of a particular race: (1) the group that is alleged to have been excluded must be a distinctive group in the community, (2) the representation of this distinctive group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, (3) the under representation is due to the systematic exclusion of the group in the jury-selection process. See, e.g., Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997). He also acknowledges that he satisfied only one of those prongs, the first, in that blacks represent a distinctive group in the community. He contends, however, that "the appellant was given no opportunity to prove the second two prongs of the test by the court's summary denial of Appellant's motion based on the Court's knowledge." He is referring to the following colloquy at trial:

[Appellant's Attorney]: I have a challenge to the jury pool selection, Your Honor. We haven't started picking a jury or anything but I believe your selection process unfairly discriminates against minorities and people that in fact look like my client.

The Court: Okay.

[Appellant's Attorney]: And, therefore, my client is prejudiced by not having people on the jury pool that looks like him, the pool itself, a fair cross section of the community.

. . .

[Appellant's Attorney]: And, my understanding, historically no minorities have served on those jury panels, Your Honor. To my knowledge, I've been up here three times, I believe, in jury trials. I've never seen a minority on the jury panel.

The Court: Well, the Court has. Are there none on this one?

[Appellant's Attorney]: No. Not to my knowledge.

The Court: Well, the jury panel, I am very familiar with the procedure in the selection of a jury panel and it is totally unbiased, totally random and does in fact represent a cross section of the community so that Motion is denied.

The prosecution pointed out that the jury panel was selected from the voter-registration lists, and the appellant did not even try to offer evidence that would establish the second two prongs. We find no abuse of discretion in the trial court's refusal to quash this jury.

Finally, appellant contends that the trial court erred by admitting into evidence the testimony of Christopher Todd Nethercutt. We disagree.

The challenged testimony from Nethercutt involved appellant's possession of a "Glock," which is a gun that, according to trial testimony, would have similar shell casings as the ones found at the scene of the shooting. Appellant filed a motion in limine to exclude the testimony, and the trial court heard the proffered testimony in chambers before ruling on its admissibility. In chambers, Nethercutt stated that he and appellant were riding around together about four or five months prior to the August 25, 2001 incident and that appellant told him either that he had, or had had, a gun and that there was some mention of it being a Glock. The trial court allowed the testimony. We find no basis for reversal with this point of appeal. First, evidentiary challenges are reviewed for an abuse of discretion. Ellison v.State, ____ Ark. ____, 123 S.W.3d 874 (2003). The trial court did not abuse its discretion here. Moreover, there was an eyewitness, Antonio Moses Credit, who testified that he saw appellant fire the gun at McCool. Consequently, even if we were to find an abuse of discretion by the trial court in allowing this testimony, it would be harmless in light of this eyewitness testimony, and would provide no basis for reversal.


Crabtree and Baker, JJ., agree.