Collins v. State
Annotate this Case
Download PDF
Cite as 2010 Ark. App. 653
ARKANSAS COURT OF APPEALS
DIVISION IV
CACR10-315
No.
Opinion Delivered
October 6, 2010
EDWARD S. COLLINS
APPELLANT
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT, FIRST
DIVISION [NO. CR-2008-806-1]
V.
HONORABLE BERLIN C. JONES,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
This is an appeal from a conviction of possession of a controlled substance with intent
to deliver. Appellant’s sole point for reversal is that the trial court erred in granting the State
a continuance to permit the crime-laboratory chemist to be subject to confrontation regarding
the report that he prepared identifying the controlled substances. We find no error, and we
affirm.
Arkansas Code Annotated section 12-12-313(d)(1) (Repl. 2009) provides that
laboratory reports of an evidence analysis are admissible if the report includes the written
attestation of the analyst who performed the analysis. Subsection (d)(2) of that statute requires
a defendant in a criminal case who desires to cross-examine a laboratory analyst regarding a
laboratory report regarding evidence to notify the State at least ten days before the proceeding
if the analyst’s presence is requested.
Cite as 2010 Ark. App. 653
Here appellant, charged with possession of crack cocaine, did not give the ten-day
notice required by section 12-12-313(d)(2) but instead objected at trial to the introduction
of the report of a crime-lab chemist on the grounds that it was “hearsay” and that the
statutory provision allowing introduction of the report by attestation in the absence of notice
was unconstitutional pursuant to Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct.
2527 (2009). The State informed the trial court that the chemist who had attested to the
report was in fact under subpoena but was unavailable because he was testifying in another
case that day, and asked that the trial court allow the chemist to be present for crossexamination the following day. Without ruling on the constitutional issue, the trial court
noted that the case had in fact been scheduled for a two-day trial and granted the State’s
request, ordering that trial be recessed and reconvened the next day. The chemist appeared
at trial the next day, his report was introduced, and appellant was convicted. Appellant argues
that the trial court’s action constituted a continuance that was improperly granted to the State.
We disagree.
It is within the trial court’s discretion to grant or deny a motion for continuance, and
we will not reverse the court’s decision absent a clear abuse of discretion. Jared v. State, 17
Ark. App. 223, 707 S.W.2d 325 (1986). An appellant must also demonstrate that, as a result
of the ruling on the motion for a continuance, he suffered prejudice that amounts to a denial
of justice. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Rule 27.3 of the Arkansas
Rules of Criminal Procedure provides that a trial court shall grant a continuance only upon
-2-
Cite as 2010 Ark. App. 653
a showing of good cause and shall take into account the request or consent of the prosecuting
attorney or defense counsel, as well as the public interest in the prompt disposition of the case.
In deciding whether to grant or deny a motion for a continuance to secure the presence of
a witness, trial court considers (1) the diligence of the movant; (2) the probable effect of the
testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event
of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness
would prove but also that the affiant believes them to be true. Dyer v. State, 343 Ark. 422,
36 S.W.3d 724 (2001).
Here, the prosecuting attorney was unaware that appellant intended to bring a
constitutional challenge to Ark. Code Ann. § 12-12-313(d)(1) until the day of trial when the
State attempted to introduce the laboratory report. We think that, in the absence of notice
to the contrary, the prosecuting attorney was entitled to rely on that statute’s provision that
such a report is admissible if attested to by the analyst, and that he moved for a continuance
as soon as practicable. We additionally note that the requested witness was subpoenaed for
trial by the State and appeared the next day, and it appears that he might have done so even
sooner had not the witness been testifying in another trial when appellant made his
constitutional objection. Although there was no affidavit filed, the substance of the chemist’s
testimony was evident in light of his report, which was before the court.
With respect to appellant’s argument that the continuance was improper in the absence
of an affidavit, we note that Ark. Code Ann. § 16-63-402(a) (Repl. 2005) provides that a
-3-
Cite as 2010 Ark. App. 653
motion to postpone a trial on account of the absence of evidence shall, if required by the
opposite party, be made only upon affidavit showing the materiality of the evidence expected
to be obtained and that due diligence has been used to obtain it. Here appellant, as the
opposing party, did not require such an affidavit of materiality and due diligence or raise any
objection at trial to its absence. In the absence of an objection at trial, any argument
concerning the failure to submit such an affidavit will not be addressed on appeal. Stenhouse
v. State, 362 Ark. 480, 209 S.W.3d 352 (2005).
Affirmed.
V AUGHT, C.J., and H ART, J., agree.
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.