Brunson Roberts v. State of Arkansas

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ar03-625

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

BRUNSON ROBERTS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-625

JUNE 30, 2004

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR2002-1866]

HONORABLE WILLARD PROCTOR, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Following a jury trial, appellant Brunson Roberts was convicted of possession of a controlled substance and was sentenced as an habitual offender to fourteen years' imprisonment. 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, Roberts's counsel has filed a motion to withdraw as his attorney, alleging that this appeal is without merit. Counsel has also filed a brief, in which all adverse rulings are abstracted and discussed. The clerk of this court furnished Roberts with a copy of counsel's brief and notified him of his right to file pro se points for reversal within thirty days. Roberts has filed one pro se point for reversal, arguing that the trial court erred in overruling his objection to the admission of evidence not disclosed to the defense during pretrial discovery and that he was prejudiced by the State's failure to disclose this information. We grant counsel's motion to withdraw and affirm Roberts's conviction.

On May 31, 2002, Roberts was charged with possession of cocaine with intent to deliver. At trial, North Little Rock Police Officer Brant Carmichael testified that he and other officers were investigating prostitution in the Rose City area. Carmichael stated that they observed a female, Maria Ellis, who had previously been arrested for prostitution, standing in the parking lot of the Masters Inn, talking to two males, one of whom was later identified as Roberts. According to Carmichael, Roberts and Ellis entered a room at the motel, and several minutes later, the other male entered the room for a short time and then drove away. After approximately fifteen minutes, Roberts and Ellis exited the room, and the police officers made contact with them. Carmichael testified that they identified Roberts and found out that he had a misdemeanor warrant for his arrest. Roberts was placed under arrest and searched. In Roberts's pocket, Carmichael stated that he found a plastic container and that inside there were four individually wrapped rocks that he suspected were crack cocaine. The State Crime Laboratory chemist testified that the rocks were cocaine, with a total weight of .971 grams. Another police officer testified that he searched Roberts prior to transporting him to the police department and that he found $1580 in cash.

Roberts admitted that he possessed the four rocks of cocaine, but testified that he had a drug problem and that he did not possess the cocaine with the intention of selling it. He stated that he intended to use the drugs himself and that he had used some cocaine with Ellis in the motel room. After hearing the evidence, the jury found Roberts guilty of the lesser-included offense of possession of cocaine and sentenced him as an habitual offender to fourteen years' imprisonment.

Roberts's counsel asserts that there are no non-frivolous issues of law or fact that would support reversal of appellant Roberts's conviction for possession of cocaine. There were six rulings adverse to Roberts during the trial, all of which are abstracted and discussed by counsel. Three of these adverse rulings were evidentiary rulings made during the guilt-innocence phase of trial, two were the denials of Roberts's motions for directed verdict, and the last adverse ruling occurred during the penalty phase of the trial. We agree with Roberts's counsel that there would be no merit to an appeal on any of these issues.

In his pro se point for reversal, Roberts argues that the trial court erred when it overruled his objection to the admission of evidence that was not disclosed to the defense during pretrial discovery and that he was prejudiced by the State's failure to disclose this information.

Roberts first raised the issue of a discovery violation during the testimony of Keith Jackson, a police officer who assisted in the detention and arrest of Roberts. During cross-examination, defense counsel questioned Jackson as to the other male that was detained after being seen with the suspected prostitute. This person was identified as A.P., a juvenile, who is also Roberts's employer's son. Jackson referred during his testimony to a police report, which showed that A.P. was arrested in connection with that detention and issued a citation for possession of a controlled substance. Defense counsel objected, stating that this police report was not provided to the defense and that the defense was not aware that A.P. had been arrested. The trial court questioned defense counsel as to what remedy she was seeking, such as a continuance or that testimony be stricken. Defense counsel did not ask for a remedy, and after reviewing the file containing the police report, she withdrew her objection. Thus, this issue is not preserved for appellate review. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000).

Defense counsel again objected on the basis of a discovery violation during the State's cross-examination of Roberts. The State was questioning Roberts as to why he had a large amount of cash on him when he was arrested, and Roberts testified that he had the cash for work purposes and that his employer could verify this information. Defense counsel objected on the basis that the defense was not provided with certain documents, such as the police report, that contained information on an additional address for Roberts's employer, whom the defense had been trying to reach. This objection, which was renewed at the close of all the evidence, was overruled on both occasions.

Roberts argues that this ruling by the trial court was erroneous and that he was prejudiced by the State's failure to disclose this information because if he had this information, he could have called other witnesses and raised questions about the warrant the police used as a reason to arrest and search him. He asserts that he might have shown that the arrest and search violated the Fourth Amendment and that the evidence seized could not then have been used against him at trial. As the State argues, this particular argument was not raised below, and as such, it is not preserved for appellate review. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Moreover, a judicial confessionrenders any error with respect to the admission of such evidence harmless, Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996), and because Roberts admitted that he was guilty of possessing cocaine, there is no merit to his argument on this point.

Roberts's counsel has abstracted and discussed all of the adverse rulings occurring during the trial, and we agree that there would be no merit to an appeal on any of those issues, nor is there merit to Roberts's pro se point for reversal. From a review of the record and the brief presented to this court, we find compliance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and pursuant to the Anders procedural blueprint, we find no basis for a reversal. Accordingly, we grant counsel's request to withdraw as Roberts's attorney and affirm the conviction.

Affirmed.

Vaught and Baker, JJ., agree.