Anderson v. State

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NOT DESIGNATED FOR PUBLICATION ARKANSAS COURT OF APPEALS DIVISION III No. CACR08-458 Opinion Delivered MYRON NEWJEAN ANDERSON, JR. APPELLANT January 28, 2009 APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. CR-06-197-4A; CR-06-197-4B] V. HONORABLE DON GLOVER, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED JOHN MAUZY PITTMAN, Judge Appellant was found guilty by a jury of five counts of committing a terroristic act and one count of being a felon in possession of a firearm arising out of the shooting of seven persons in a nightclub. He was sentenced to serve 110 years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion for directed verdicts of acquittal. He also argues that the trial court erred in overruling his objection to the addition of a second panel of prospective jurors and in denying his motion for a new trial asserting prejudice resulting from the seating of the second panel of jurors. We first consider appellant’s argument concerning the sufficiency of the evidence. There was evidence that appellant was a felon, that he was in the nightclub shooting a firearm on the night in question, and that seven people were shot. Appellant’s entire argument on this point is stated as follows: “Appellant argues that testimony from the witnesses was so inconsistent that it was unreliable.” Appellant neither cites authority nor advances any argument for the untenable assertion that mere inconsistency in the testimony of different witnesses is of itself so destructive of the jury’s ability to discern the truth that it somehow renders otherwise-sufficient evidence insufficient to support a criminal conviction. Nor are we told what testimony appellant is referring to or which elements of the offenses were therefore lacking sufficient proof. This argument, the same as that advanced in appellant’s directed-verdict motion, merely states that the evidence is insufficient; it does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. Ark. R. Crim. P. 33.1(c); see Smith v. State, 367 Ark. 274 , 239 S.W.3d 494 (2006). Even had a specific point for appeal been preserved, it is axiomatic that an argument on appeal is insufficient if it simply invites the court to search the record generally for errors. Lavaca Telephone v. Arkansas Public Service Commission, 65 Ark. App. 263, 986 S.W.2d 146 (1999); see also Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). We hold appellant’s directed-verdict motion to be inadequate and his argument on appeal to be frivolous; consequently, we do not address this issue. Appellant’s remaining argument is likewise without merit. He asserts, without citation to authority, that we must reverse because the trial judge summoned a second panel of prospective jurors without informing appellant that he had done so. Appellant cites no authority that would require the trial court to inform appellant of this action prior to trial. Furthermore, the record shows that appellant’s counsel was given ample opportunity to interview the jurors prior to their being seated, that he did not exercise all of his peremptory -2- CACR08-458 strikes, and that he affirmatively informed the trial court that he did not disapprove of the jurors actually selected. Appellant waived any objection after concurring in the makeup of the jury, Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998), and, in any event, could not show prejudice because he failed to exercise all of his peremptory strikes. See Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). In his motion for a new trial, appellant alleged that one of the seated jurors “is believed to be related to a victim in the case to a degree not known at the time of selection.” However, the name of the juror was not mentioned. The name of the victim was not mentioned. The name of the person who “believed” there to be a different degree of relationship is not mentioned. Whether the degree of relationship “believed” to exist is closer or more remote is not mentioned. Without a more precise allegation by appellant or a showing on his part as to how he was harmed, the circuit court had no basis to grant a new trial. See King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993). Affirmed. H ART and B ROWN, JJ., agree. -3- CACR08-458

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