Simpson v. State

Barry Lynn SIMPSON v. STATE of Arkansas

CR 95-967                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996


Appeal & error -- grounds for objection changed on appeal -- 
     argument waived on appeal. -- Where appellant argued on appeal
     that it was reversible error to have received, at the
     sentencing phase of his trial, testimony of the members of the
     victim's family concerning the effect the crime had upon them
     and their children, the supreme court affirmed the conviction
     because the issue presented on appeal was not presented to the
     trial court; appellant's only argument at the sentencing
     hearing was that the witnesses should not have been allowed to
     testify because their testimony was cumulative to evidence
     contained in the presentencing report; if the ground of an
     objection is changed on appeal, the argument is considered to
     have been waived.


     Appeal from Saline Circuit Court; John W. Cole, affirmed.
     Joe Kelly Hardin, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.3/4/96    *ADVREP3*


BARRY LYNN SIMPSON                      CR95-967
                                        Opinion Delivered:

          Appellant

     v.                                 Appeal from Saline County
                                        Circuit Court
STATE OF ARKANSAS                       Honorable John W. Cole,
                                        Circuit Judge

          Appellee                      Affirmed




                      Justice David Newbern


     Barry Lynn Simpson pleaded guilty to the charge of first-
degree murder in connection with the death of his father.  In the
sentencing phase of his trial, the State presented the testimony of
members of the family concerning the effect the crime had upon them
and their children.  Mr. Simpson argues it was reversible error to
have received the testimony because he was not notified that the
witnesses would testify.  We affirm the conviction because the
issue presented on appeal was not presented to the Trial Court.
     At the sentencing hearing, Mr. Simpson's only argument was
that the witnesses should not have been allowed to testify because
their testimony was cumulative to evidence contained in the
presentencing report.  The point about lack of notice was not
presented and is entirely different from the argument made to the
Trial Court.  If the ground of an objection is changed on appeal,
the argument is considered to have been waived.  Whitney v. Holland
Retirement Center, 323 Ark. 16, ____ S.W.2d ____ (1996); Stewart v.
State, 320 Ark. 75, 894 S.W.2d 930 (1995).
     Affirmed.