Benjamin Seibert v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
DIVISION I
CACR07320
NOVEMBER 28, 2007
BENJAMIN SEIBERT
APPELLANT
V.
APPEAL FROM THE UNION COUNTY
CIRCUIT COURT
[NO. CR20046224]
HON. CAROL C. ANTHONY,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Benjamin Seibert was convicted in a jury trial for possession of cocaine and
possession of drug paraphernalia. He was sentenced to consecutive terms of three years’
imprisonment for the cocaine conviction, three years’ imprisonment for the drug
paraphernalia, and fines totaling $6000. Seibert now appeals his convictions, raising five
points. His first two points concern rulings that the trial court made in closing arguments
about chain of custody and “common knowledge.” In his third, fourth, and fifth points he
contends that the trial court erred in denying his challenges for cause with regard to several
jurors, in not requiring the State to produce a witness statement, and in allowing the
introduction of Seibert’s arrest warrant. We agree with the State that only the third point is
preserved for our review. Because the court did not abuse its discretion in refusing to release
the jurors for cause, we affirm the convictions.
We briefly recite the pertinent facts of this case, which began when lawenforcement
officers investigating a welfare concern went to an El Dorado motel room on September 13,
2004. Seibert answered the door and gave permission for a search. A cocaine pipe lay on
the floor by Seibert’s feet, and in the room and bathroom were other pipes, several rocks of
crack cocaine, and a Brillo pad such as is commonly used as a filter in making homemade
pipes. At trial Seibert asserted that he knew nothing about these items and that, on the day
before the search, he had befriended two other persons who were in the room by lending
them his car and giving them a place to stay.
Closing Arguments regarding Chain of Custody
As his first point on appeal, Seibert asserts that the trial court erred in refusing to
allow him to argue the issue of chain of custody in closing argument and then allowing the
State to argue the issue. We do not agree.
During Seibert’s closing argument, the State objected when he referred to the State’s
exhibits of “alleged drugs or powder” and asserted, “[T]hey did not provide you with a chain
of custody, did they?” The trial court sustained the objection, which was made on the basis
that the exhibits had been admitted without objection. Seibert then argued that “the chain
of custody is not a question of admission but a question of whether it is appropriate to
consider it as far as guilt.”
The State then made a rebuttal closing argument, during which it noted that Seibert
“mentioned a chain of evidence.” Seibert objected to this statement, noting that the court had
sustained the State’s objection to his mentioning the chain of custody. The State responded
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that Seibert could not be allowed to improperly taint its case and the State not be allowed to
rehabilitate. The court stated, “We can do it that way or I can give them a precautionary
instruction,” and Seibert requested the cautionary instruction. The State requested that the
court explain to the jury that the State “established that the cocaine came out of that room,
that the crime lab came back and it’s in the courtroom. That is what chain of custody is. It
came in without objection.” The court stated, “All right. We’re not going to dwell on it.”
The State then argued to the jury:
Chain of custody, what it means is that amount of evidence that we have to offer you
to establish that the cocaine, the pipes, the things we got out of the room that these
are the same ones that we got out of the room, that we sent the same stuff to the crime
lab, they tested it and it came back to us and here it is for you. That is the chain and
we can establish that with witnesses like we did . . . . And the crime lab submission
sheets and the crime lab report . . . . It came in without objection, there is no
legitimate issue there.
We will not address the issue Seibert now raises because he failed to obtain a specific
ruling on his objection at trial. See, e.g., Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772
(1993). Moreover, were we to address it, we would find that the trial court properly allowed
the State to rehabilitate in rebuttal closing argument. See id. (State’s remark was an invited
comment made in response to the defendant’s closing argument, which “opened the door”
to the State’s remark).
Closing Argument regarding “Relative Resources” and DNA
As his second point on appeal, Seibert contends that the trial court erred in sustaining
the State’s objection to these remarks that he made in his closing argument:
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[W]e talk about this presumption of innocence and the resources of the State,
I was drawing an analogy to how in recent years there’s been a lot of publicity
about wrongfully convicted people who were convicted by a jury of twelve
good men and women. It wasn’t until DNA came out that these people were
exonerated. . . . I ask you to remember this when you weigh this evidence,
when you weigh the credibility because on these capital cases on these murder
cases, on these rape cases where these people have been subsequently
exonerated the State brought an incredible canopy of technology and resources
to convict these people.
The State objected, “These are not facts [in] evidence,” and Seibert responded that his
argument was “well known to the public.” The trial court stated, “Let’s move on to this
case.” Because the trial court did not specifically rule on the State’s objection, Seibert has
no specific error to argue on appeal. See, e.g., Sheridan, supra.
Challenges for Cause
Seibert contends as his third point that the trial court erred by overruling his
challenges for cause to jurors Les Chandler, Marvin Bagley, and Robert Farris because of
statements that they made during jury selection. The test to be used in releasing a
prospective juror for cause is whether the person’s views would prevent or substantially
impair the performance of his or her duties as a juror in accordance with the instructions and
oath. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). The decision to excuse a
juror for cause is left to the sound discretion of the trial court and will not be reversed absent
an abuse of discretion. Id. When a defendant argues that he was forced to accept a juror that
he would have refused, he must show that the trial court should have excused the juror for
cause, that the defendant had exhausted his peremptory challenges, and that he demonstrated
prejudice in that he was forced to accept a juror against his wishes. Noel v. State, 28 Ark.
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App. 158, 771 S.W.2d 325 (1989).
Chandler stated that he had a strong opinion about
drugs: he said that a nephew had a drug conviction, which would concern Chandler although
he could not honestly say that it would affect him. He said that drugs affect a lot of innocent
people but he could set all that aside, look at the evidence, and weigh everything in the light
of his common sense and the law as he was instructed. Seibert challenged Chandler for
cause because he had strong feelings, did not know if he could be impartial, and was of the
opinion that drugs affected a lot of innocent people. The trial court overruled Seibert’s
objection.
Bagley stated that he had two sonsinlaw who worked for the police department but
did not think that it would affect his view of the case. He said that he was very close to his
sonsinlaw and had tried to discourage them from police work because of the dangers.
Seibert objected to Bagley for cause because of his relationship with these men. The court
denied the motion, noting that “we just put the Mayor on the jury so his relationship isn’t
an issue and besides that [Bagley] answered the question he could be fair and impartial.”
Farris stated that “on a penalty range . . . I would be leaning more toward the
maximum penalty because a few years ago my best friend got killed by somebody that was
on drugs and I think that may affect my decision.” He expressed his feeling that the
punishment did not match the crime in a lot of cases and that in drug cases, “They just give
them a little slap on the hand and they go back and do it again. If we had it a little more hard
. . . they might think twice about it.” Seibert objected for cause because Farris leaned toward
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the maximum penalty. The court denied the objection because Farris indicated that he could
consider the full range, and Seibert exercised a peremptory challenge against him.
The State notes that Juror Chandler stated that he could be impartial, and Seibert did
not exercise an available peremptory challenge to exclude him. Thus, Seibert has not
established how he was prejudiced by Chandler’s presence on the jury. Seibert has not
established that Farris, who stated that could consider the entire sentence range as instructed
by the court, had any bias that would prevent or substantially impair the performance of his
juror duties in accord with his oath and instructions. Moreover, Seibert exercised a
peremptory challenge to exclude him. Finally, Seibert failed to demonstrate bias by Bagley,
who said that his decision would not be affected by his relationship with his sonsinlaw in
law enforcement, and he was excused by a peremptory challenge that Seibert exercised. We
find no abuse of discretion by the trial court in its denial of Seibert’s challenges for cause of
these three jurors.
Request for a Witness Statement
As his fourth point on appeal, Seibert contends that the trial court erred when it did
not require the State to produce a statement of witness Lisa King, which Seibert requested
for impeachment purposes. The State had asserted that there were no statements referenced
in the file, and during a short break the court allowed the prosecutor to speak with law
enforcement officers to determine if King had given a statement. The court then stated to
Seibert that the prosecutor had indicated that there were no statements.
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Siebert acknowledges that he did not obtain a ruling, but he asserts that the court
improperly denied him access to impeachment materials by its refusal to acknowledge or rule
on his multiple requests. He cites no authority or case law in support of his arguments. The
merits of an argument on appeal will not be addressed when the appellant presents no
citation to authority or convincing argument in its support and it is not apparent without
further research that the argument is well taken. Williams v. State, 363 Ark. 395, 214 S.W.3d
829 (2005). Furthermore, the State denied that it had a statement from King, and Seibert did
not offer any evidence of the existence of such a statement.
Introduction of an Arrest Warrant into Evidence
Seibert raised a relevancy objection at trial to the State’s introducing into evidence a
certified copy of a bench warrant issued to him in November 2004 for failure to appear. The
relevancy argument that he presented to the court was that the issue was whether he
possessed drugs and drug paraphernalia. The State responded that the fact of Seibert’s flight
from the court’s jurisdiction was evidence of his guilt. The court overruled his objection.
Seibert now asserts that it is improper to introduce arrest warrants into evidence for
any purpose because of the dangers of hearsay and prejudice. Because he has changed the
nature of his objection on appeal, this issue is not preserved for our review. A party cannot
change the grounds for an objection or motion on appeal but is bound by the scope and
nature of the arguments made at trial. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).
Affirmed.
GLADWIN and HEFFLEY, JJ., agree.
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