Albert Levon Burton v. State of Arkansas

ar04-282

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ALBERT LEVON BURTON,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-282

MARCH 2, 2005

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT,

(NO. CR-02-63)

HONORABLE DAVID G. HENRY, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Albert Burton was convicted by a jury of two counts of aggravated assault, one count of criminal mischief, and one count of being a felon in possession of a firearm. He was sentenced to twenty years in the Arkansas Department of Correction and was ordered to pay $18,000 in fines. On appeal, Burton contends (1) that the trial court erred by denying him the right to counsel during substantial steps of the proceedings; (2) that the trial court erred by failing to sever the charge of possession of a firearm by a certain person from the three other offenses with which he was charged; and (3) that the evidence was insufficient to support his convictions. We disagree with Burton's arguments and affirm.

Following Burton's arrest on July 24, 2002, he made a series of appearances before the court, the first of which occurred on July 31, 2002. At the July 31 appearance, the following colloquy took place:

The Court: Albert Burton? It's a new one.

The Case Coordinator: Yes, sir.

The Court: New?

Mr. Dittrich (prosecutor): Yes, sir. I'm trying to remember what Mr. Burton was charged with. I thought he was a Northern - -

are you a Northern District or Southern District, Mr. Burton?

The Defendant: They arrested me here.

Mr. Dittrich: Your Honor, I am going to have to make a phone call on that, because I do not remember what Mr. Burton has been charged with. If you could pass that one to the end of the docket, I'll - - I brought some other files, but I did not bring that one.

The Court: All right. Just have a seat, Mr. Burton. We will get right back to you.

Mr. Dittrich: Your Honor, Mr. Burton?

The Court: Uh-huh?

Mr. Dittrich: He is being charged with two counts of aggravated assault, one count of criminal mischief, [and] a count of terroristic threatening. We would recommend a bond of fifty thousand dollars secured. He was arrested by the DeWitt Police Department - - and somewhat into a stand-off situation.

The Court: And are you going to be able to make bond, sir?

The Defendant: No.

The Court: Are you going to be able to get an attorney?

The Defendant: No.

The Court: All right. You need to fill this form out and then I will appoint Mr. Molock, the Public Defender, to represent you. And he's on his way out to the - - just left here on his way out to the jail. So, he will probably talk to you today if Deputy Ellenburg will remind him. All right?

The Defendant: [NO VERBAL RESPONSE.]

On August 5, 2002, Dennis Molock, Public Defender for Arkansas County, was appointed to represent Burton. At a bond reduction hearing on August 14, 2002, Burton's bond was reduced to $15,000, and the following colloquy occurred:

Mr. Molock: Now, do you realize that if you make bond you will no longer have an appointed attorney, you will have to make arrangements to hire an attorney. Are you prepared - - -

The Defendant: Yes - - -

Mr. Molock: - - - to deal with that, also?

The Defendant: Yes.

Burton made bond on August 15, 2002, and Molock was relieved from representing Burton. At a subsequent hearing on August 21, 2002, the following colloquy occurred:

The Court: Mr. Burton? That would be 02-63. Let's see, Mr. Burton, it's my understanding that you have bonded out.

The Defendant: [NO VERBAL RESPONSE.]

The Court: And you know that you need to get your own attorney?

The Defendant: Yes, sir. Could you give me, uh, probably [INAUDIBLE] sixty days to [INAUDIBLE] I believe I could - - if you give me sixty days to obtain - - -

The Court: Well, your pre-trial is set for September 11, at nine-thirty, down here.

The Defendant: Yes, sir.

The Court: So, you need to be - - you need to be here for that.

The Defendant: Okay.

The Court: And you need to have one by then, if you can get one.

The Defendant: Okay.

The Court: Thank you.

The Defendant: Your honor, it might take me about sixty days - - -

The Court: Well, you come - - -

The Defendant: - - - [INAUDIBLE] - - -

The Court: - - - September 11 and let us know, okay.

The Defendant: All right. Thank you.

On September 11, 2002, the following colloquy occurred:

The Court: Albert Burton? Let's see, Mr. Burton, do you have an attorney yet?

The Defendant: No, not yet.

The Court: Do you have any pre-trial motions?

The Defendant: No, just a Motion for Discovery.

The Court: Your trial is set for October 3. It's not long off.

The Defendant: Could I have another month?

The Court: Well, you've got three weeks between now and then, but I would think you would need one before October 3. You need to get busy.

On October 3, 2002, the following colloquy occurred:

The Court: Mr. Burton? Mr. Burton, sorry we are so long getting to you. Had some paperwork to do first. Do you have an attorney yet?

The Defendant: No, I need a little more time.

The Court: You don't want to go to trial today?

The Defendant: No.

The Court: What date are we using? The fifth?

The Court Reporter: Yes, sir.

The Court: December 5, Mr. Burton.

The Defendant: Thank you.

On December 5, 2002, the following colloquy occurred:

The Court: Albert Burton? Let's see, Mr. Burton, no attorney?

The Defendant: No, I don't have an attorney. I just started working, uh, Monday. They called me back to work Monday. And for - - if you could pass it for a couple of months so I could get that income tax and everything, I think I can get an attorney. But without that, I can't get an attorney.

The Court: All right. That's going to the week of February 25 through 8. You need to be here on that morning of the twenty-fifth at eight-thirty. And be prepared to go to trial, whether you have an attorney or not.

The Defendant: Okay. All right. Thank you.

On February 27, 2003, the following colloquy occurred:

The Court: This case was filed in August of 2002. Have you made an attempt to hire a lawyer?

The Defendant: Yes, I've talked to some [INAUDIBLE]. But, Your Honor, during the month of December I worked twenty-one hours that whole month. The month of January was about the same.

The Court: Well, you - - being as how you are working at the shoe factory, the weather ought not to affect your employment then, should it?

The Defendant: [INAUDIBLE.]

The Court: Okay. Why did - - why did you work such a small amount in December?

The Defendant: Didn't have any [INAUDIBLE.] It's just now starting to pick up. I'm averaging about twenty-one hours a week. Last week I was able to get [INAUDIBLE.]

The Court: This case is set for trial March 27. You are working, you are able to retain a lawyer. I find that if you do not retain one, you will have waived the right to a lawyer. You be back on the twenty-seventh ready to go to trial.

Burton apparently retained counsel sometime in March 2003. On March 12, 2003, an amended felony information was filed charging Burton with two felony counts of aggravated assault, one count of felony criminal mischief, and one count of being a felon in possession of a firearm. The case was tried before a jury on August 14, 2003.

At trial, Wanda Jones testified that Burton had dated her sister, Tammy Jones. Wanda said that, on July 24, 2002, she went over to Tammy's house at 114 Meadowcliff to pick up some keys. Wanda said that she was in the car with her other sister Janet and that Janet was driving. When Wanda and Janet arrived at Tammy's house, Tammy was outside in her own car, and she asked Wanda to go in and get the keys. Wanda entered Tammy's house without knocking and encountered Burton. Wanda said that Burton then stated, "Y'all don't go anywhere. I've got something for y'all." Wanda also said that she took Burton's statement to be a threat. Wanda testified that she walked to Janet's car and they left. She then heard a gunshot. At some point the sisters went to the police, and the police saw a bullet hole in the car.

On cross-examination, Wanda stated that she never saw Burton with a rifle in his hand, that it was dark, and that it was not uncommon to hear gunshots in the neighborhood. She said that she did not hear a gunshot, see a bullet, or see Burton with a gun. She admitted that she signed a statement saying that Burton "pulled out a rifle and shot the car" and that "the bullet hit the car." She denied, however, that the statement was hers, saying that she signed her sister Janet's statement.

Janet Jones also testified at trial. She said that Burton had been staying at Tammy's house and that she was driving the car in which Wanda was riding on July 24, 2002.According to Janet, Wanda went inside Tammy's house and was arguing with Burton when she came out. Janet said that she told Wanda to "come on" and that Wanda came to the car and they drove away. Janet stated that she did not hear what Burton said at that point. Janet said that she later noticed a hole in her car and signed a statement saying that "Albert Burton came out with a rifle and shot my car."

On cross-examination, Wanda said that she did not read the statement before she signed it, that she never saw Burton with a rifle in his hand, and that she heard a gunshot, but that she did not hear the bullet hit the car as she was driving off. She also said that the Meadowcliff area had a "reputation of gunshots going off" and that she did not see Burton fire a shot at her car.

Bob Paxton, chief of the DeWitt Police Department, said that on July 24, 2002, he investigated a report of gunshots striking a vehicle occupied by Wanda and Janet Jones. When he arrived at Meadowcliff, he was informed by Wanda and Janet that a vehicle had been struck by a bullet and also that Burton was inside the residence at 114 Meadowcliff. Paxton said that at first, police "got on a PA system and tried to get Mr. Burton to come to the door." When that attempt failed, police telephoned Burton and spoke to him for at least an hour and a half to "get him to come out of the residence" so that they could further investigate the situation. According to Paxton, Burton eventually came out and was taken into custody.

At that point, Paxton went inside Tammy's residence, searched for weapons, and found a 30-30 rifle inside the closet door. He said that he then smelled it to see if it had been previously fired because in his experience, "you can smell a fresh residue from gun powder after a [gun] has been freshly fired." Paxton said that he smelled the barrel and that it appeared to him that the firearm had just been fired.

On cross-examination, Paxton said that he did not find any spent shell casings during his search of Tammy's residence. At the close of the State's evidence, Burton moved for a directed verdict on all counts, and the motion was denied as to the two counts of aggravated assault and the felony possession of a firearm. The court granted the motion as to the charge of felony criminal mischief, but declared the criminal mischief count to be a misdemeanor due to the lack of evidence that there was damage of $500 or more; the court denied the motion as to the misdemeanor.

Tammy Jones then testified on Burton's behalf, stating that the gun found at her residence was her gun and that her friend Jay Irons had shown her how to shoot the gun that day. She said that afterwards, she put her gun in the closet. She also testified that she did not see Burton with a gun. It was undisputed that Burton was a convicted felon.

At the close of all the evidence, Burton renewed his motions for a directed verdict, which the court again denied.

Sufficiency of the Evidence

Due to double jeopardy considerations, we consider the insufficiency issue first. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A motion for directed verdict is a challenge to the sufficiency of the evidence. Meadows v. State, ___ Ark. ___, ___ S.W.3d ___ (Dec. 9, 2004). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

Circumstantial evidence may constitute substantial evidence to support a defendant's conviction, but only if it excludes every other reasonable hypothesis consistent with innocence. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). The question of whether circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is generally reserved for the factfinder. Id. Moreover, the credibility of witnesses is an issue for the jury and not for this court. Meadows v. State, supra.

A person commits aggravated assault if "under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person." Ark. Code Ann. § 5-13-204 (Repl. 1997). In addition, a person commits criminal mischief if "he purposely and without legal justification destroys or causes damage to ... [a]ny property of another...." Ark. Code Ann. § 5-38-203(a)(1) (Repl. 1997). Furthermore, Arkansas law provides that no person shall possess or own any firearm who has been convicted of a felony. Ark. Code Ann. § 5-73-103 (Supp. 2001).

Here, Burton contends that there was insufficient evidence to support his convictions for aggravated assault, criminal mischief, and felony possession of a firearm because there was no testimony that the witnesses saw Burton possess or shoot a gun. We disagree. The evidence viewed in the light most favorable to the State reveals that, on July 24, 2002, Wanda and Janet Jones went over to Tammy Jones's residence to pick up some keys. According to the testimony at trial, Wanda then went inside to get the keys and argued with Burton after he made a threatening remark to her. Janet Jones testified that she then told Wanda to "come on" and that Wanda got into the car and they drove away. According to Wanda's testimony, they heard a gunshot, and Janet testified that she later noticed a bullet hole in her car.

Chief Paxton testified that he was called to the Meadowcliff area after a report of gunshots striking Janet's vehicle and that when he arrived, he was told that the car had been struck and that Albert Burton was inside Tammy's residence. According to Paxton, Burton initially refused to come out of the residence, and after a standoff lasting at least an hour and a half, Burton surrendered to police and was arrested. In addition, it was undisputed that Burton was a convicted felon. We find that the evidence in this case was sufficient to sustain Burton's convictions.

Severance of the Charges

Burton next contends that the trial court erred in failing to sever the charge of being a felon in possession of a firearm from the other three charges in this case. Rule 22.1(a) of the Arkansas Rules of Criminal Procedure provides that a defendant's motion for severance of offenses must be timely made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Furthermore, severance is waived if the motion is not made at the appropriate time. Ark. R. Crim. P. 22.1(a). Where an appellant fails to make a motion to sever and does not otherwise object to the joining of charges, he cannot raise the issue for the first time on appeal. See Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999). As the State points out, Burton did not move for a severance either before his trial or at any time during his trial. Though he argues that this was due to his denial of right to counsel, he was not without counsel during the entire course of events giving rise to his convictions. Because he never raised his severance argument below, we cannot address it for the first time on appeal.

Denial of Counsel

Finally, Burton contends that he was denied his Sixth Amendment right to counsel during "substantial steps" in the trial court proceedings. Specifically, he asserts that he was without counsel from August 15, 2002, until sometime in March 2003, and states that he was required to appear in court four times during that period. Moreover, he claims that the court required him to go forward with the omnibus hearing on September 11, 2002, without counsel and thus in violation of his Sixth Amendment rights and Ark. R. Crim P. 20.3(a)(i). As a result, Burton says, he waived any pretrial motions, requests, or issues that could have been addressed. Burton argues that the case should be reversed and dismissed, or alternatively reversed and remanded for a new trial. Because Burton failed to preserve this argument for appeal, we cannot address it on the merits. Furthermore, Burton failed to show any prejudice resulting from his appearances without counsel in this case.

Here, Burton was initially appointed counsel. At the bail reduction hearing on August 14, 2002, Burton acknowledged that he understood that he would lose his appointed counsel if he made bail and that he needed to arrange to hire new counsel. Burton made bail on August 15, 2002, and his appointed counsel was dismissed. At no point thereafter did Burton object to proceeding without counsel or otherwise claim that the court was forcing him to proceed without counsel in denial of his Sixth Amendment rights. Because Burton failed to raise his argument below, we cannot address it on appeal. Our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be considered. Tipton v. Aaron, ___ Ark. App. ___, ___ S.W.3d ___ (June 16, 2004).

Even so, Burton repeatedly agreed to hire his own lawyer and requested more and more time to do so, citing numerous excuses to the court, which resulted in further delays in the trial proceedings and had absolutely no prejudicial effect on Burton. In fact, Burton benefited by receiving extra time to hire an attorney, which he did in March 2003, and he was represented by his counsel at the trial in August 2003. Notably, in two letters dated March 27, 2003, and June 12, 2003, the court reminded Burton's counsel that a hearing on any pre-trial motions must be requested at least twenty days prior to trial. This suggests that Burton had not waived any pretrial motions, requests, or issues as he now contends. We fail to see how Burton was prejudiced by his court appearances during the period after his appointed counsel was dismissed in August 2002 until sometime in March 2003 when he hired an attorney.

Affirmed.

Crabtree and Baker, JJ., agree.