Irene Waddle v. State of Arkansas

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ar04-179

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-179

May 4, 2005

IRENE WADDLE APPEAL FROM THE SCOTT COUNTY

APPELLANT CIRCUIT COURT [CR 2002-73B]

V. HONORABLE PAUL DANIELSON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Olly Neal, Judge

This is the second time that this case is before us. We initially ordered rebriefing because appellant submitted a brief with an insufficient addendum. Because appellant's brief now complies with Ark. Sup. Ct. R. 4-2(a)(8) (2004), we reach the merits of her appeal and affirm.

A jury convicted appellant Irene Waddle of possession of methamphetamine with the intent to deliver, possession of marijuana with the intent to deliver, possession of drug paraphernalia, and possession of methamphetamine with the intent to deliver within 1,000 feet of real property of a church or a daycare. She was sentenced to a total of 360 months' imprisonment. On appeal, appellant argues that (1) she is entitled to post-conviction relief based upon her trial counsel's failure to make a motion for directed verdict and his failure to move for a mistrial or acquittal based upon polling of the jury; (2) this matter should be remanded to the trial court for a hearing on Rule 37 relief based upon ineffective assistance of counsel; and (3) the trial court erred in admitting hearsay testimony based upon the fact that the declarant was deceased.

Because appellant does not challenge the sufficiency of the evidence used to convict her, only a brief recitation of the facts is necessary. Josh Franklin, a probation/parole officer with the Department of Community Corrections, went to appellant's home for a visit with appellant's husband Timothy Waddle.1 Inside the home, Franklin observed some items that gave him cause for concern that criminal activity was afoot. Franklin caused a search warrant to be issued. Waldron Police Officer Brandon Martin testified that he obtained the search warrant for the home. Upon executing the warrant, the search yielded weighing devices, syringes, plastic baggies, smoking paraphernalia, frozen marijuana found in a deep freezer, and methamphetamine. Also found were CBs, a scanner, and a jar "that contained this green vegetable substance which was marijuana along with a liquid inside the jar[.]"

Gene Bangs of the Arkansas State Crime Lab testified that he tested the items seized and found that the liquid found inside the jar was "a black, tar-like material" and weighed 7.15 grams and contained THC, the active ingredient in marijuana. Bangs testified that it "would have the same effect as marijuana if you smoked it." He also found "30.1 percent methamphetamine and nicotinamide." He also weighed the vegetable material at 2.34 grams and the other tar-like material at 16.63 grams.

The State thereafter rested, and appellant made the following motion:

I'm going to show for the record that Irene Waddle is present at the bench conference at this time. The Defense is not going to move for a directed verdict because I've explained to her on sufficiency of the evidence claim and that in my opinion there's sufficient [evidence] that is presented by the State to get this to the jury. It would be basically [a] frivolous motion. She understands that, she's present, she'll agree in that decision also. But I thought perhaps I'd do that on the record because I'm not making a directed verdict motion. So that's where we are.

The defense rested, and appellant was subsequently convicted.

Appellant asserts that (1) she is entitled to post-conviction relief "based upon her trial counsel's failure to make a motion for directed verdict and his failure to request a mistrial or acquittal based upon polling of the jury" and (2) the case should be remanded to the trial court for a Rule 37 hearing. It is well settled that this court will not consider ineffective assistance as a point on direct appeal unless that issue has been considered by the trial court. Ratchford v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 15, 2004). Additionally, the facts surrounding the claim must be fully developed, either during the trial or during hearings conducted by the trial court. Id. The reason for this rule is that an evidentiary hearing and finding as to the competency of appellant's counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Id. The trial court is in a better position to assess the quality of legal representation than we are on appeal. See id. Because the ineffective assistance claim was not considered by the trial court, we do not address it on direct appeal.

In her final argument on appeal, appellant argues that the trial court erred in allowing the hearsay testimony of Timothy Waddle, who prior to his death told Franklin that he, appellant, and their daughter lived together. Admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Taylor v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Nov. 3, 2004). Our appellate courts will not reverse a trial court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801(c) (2004). Hearsay testimony is generally inadmissible. Ark. R. Evid. 802 (2004). There are, however, some exceptions. Rule 804 of the Arkansas Rules of Evidence provides hearsay exceptions that apply when the declarant of a statement is unavailable. Grant v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 29, 2004). A witness is unavailable if he is "unable to be present or to testify at the hearing because of death[.]" Ark. R. Evid. 804(a)(4) (2004). Nevertheless, a deceased witness's statement concerning his family or personal history is an exception to the hearsay rule. Ark. R. Evid. 804(b)(4).

Here, the statement Timothy Waddle made to his probation officer was one that concerned his family or personal history; therefore, the statement was an exception to the hearsay rule and thus admissible under Ark. R. Evid. 804(b)(4). Finding no abuse of discretion, we affirm.

Affirmed.

Robbins, J., agrees.

Pittman, C.J., concurs.

1 Timothy Waddle, who was on probation at the time of this incident, was also charged in this matter; he died prior to trial.