Calvin Lamont Walker v. State of Arkansas

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ar04-456

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CALVIN LAMONT WALKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-456

APRIL 27, 2005

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. CR-00-212-3]

HONORABLE ROBERT BYNUM GIBSON, JR., CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

An Ashley County jury convicted appellant, Calvin Lamont Walker, of delivery of cocaine and sentenced him to 420 months in prison. On appeal, appellant claims that the trial court erred by admitting the controlled substance into evidence because the chain of custody was not sufficiently established. The argument is not preserved, and we affirm.

To preserve a point for appeal, an objection must be made at the first opportunity. See Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). A party has a duty to make a timely and complete objection to the admission of the evidence. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). An objection to the admission of evidence based on an allegation of an improper chain-of-custody needs to be made at the time the evidence in question is offered for admission. Id. A chain of custody objection made after the evidence has been admitted is not timely. Id. A party cannot change his grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. See Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004).

Appellant failed to object to the admission of the specimen of cocaine marked as State's Exhibit #1 on any grounds. When the State moved to introduce the cocaine, the following exchange took place:

State: Your Honor, I ask that the envelope, the package attached to it, and the items inside the envelope be admitted as State's Exhibit 1.

Defense: Judge, I object to that as far as the envelope, which is something that somebody put that into. The clear plastic item, I don't object to. I object to the attachment sheet which is the submission sheet.

Court: On what basis?

Defense: Hearsay.

Court: I'm going to overrule. Go ahead.

This exchange demonstrates that no objection to the admission of the cocaine was made at the time of trial. While appellant admits in his brief that trial counsel failed to object, he urges us to find that the error is so egregious that the trial court should have intervened sua sponte to correct it and that the evidentiary error was of such grave importance that it affected appellant's substantial rights. Appellant cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), in support of his argument and identifies these premises respectively as the third and fourth Wicks exceptions. Appellant acknowledges that the third exception supporting sua sponte intervention has only be applied to structural errors, such as the denial of a jury trial, and not in the case of evidentiary errors. See Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). He nevertheless urges us to accept that the error was equivalent to a structural error, which we decline to do. He also urges us to apply the fourth exception by taking notice from the written record that it had to have been plain at trial that there was a "significant possibility" that the evidence had "been tampered with or, more likely, was not the actual evidence purchased by the confidential informant." This we also decline to do.

Accordingly, the argument is not preserved for appellate review.

Affirmed.

Glover and Vaught, JJ., agree.