Jones v. State

John JONES, Jr. v. STATE of Arkansas

CR 96-247                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Motions -- when motion for directed verdict must be made --
     issue waived on appeal. -- In order to preserve the issue of
     insufficient evidence for appeal, motions for a directed
     verdict must be made at the close of the State's case-in-chief
     and again at the close of all the evidence; where appellant
     never made a motion for a directed verdict at any point during
     the trial, the issue was waived on appeal.

2.   Appeal & error -- relief requested at trial granted -- no
     basis for appeal. -- Appellant's contention that it was error
     for the State to use a gun similar to the weapon used during
     the robbery as demonstrative evidence in the trial was not
     reached on appeal where the trial court held that the gun
     could not be used by the State as demonstrative evidence and
     was never used during the trial; appellant received the relief
     requested; accordingly, he had no basis for appeal.  

3.   Evidence -- error predicated on ruling admitting evidence must
     be based on timely objection -- when objection is timely. --
     Where at no time during the trial testimony of any of the
     witnesses did appellant object to the admissibility of the
     identification evidence, but instead waited until the close of
     the State's case-in-chief to object, the trial court's finding 
     that the objection was not timely and that, in any event, the
     "lineup" was not suggestive was not error; error may not be
     predicated upon a ruling admitting evidence unless there is a
     timely objection; to be timely, an objection must be
     contemporaneous, or nearly so, with the alleged error.  

4.   Witnesses -- credibility of determined by jury -- jury free to
     believe State's witnesses. -- Appellant's assertion that the
     jury improperly ignored his exculpatory evidence was without
     merit; it is the sole province of the jury to judge the
     credibility of the witnesses; the jury was free to believe the
     testimony of the State's witnesses and to discount that of
     appellant and his witness.

5.   Evidence -- proponent bears burden of proving unavailability
     of witnesses -- good faith effort must be made. -- The
     proponent bears the burden of proving the unavailability of
     the declarant by showing that he or she made a "good-faith
     effort" to procure the attendance of the missing declarant by
     use of process, such as a subpoena, or by other reasonable
     methods; mere inquires about the declarant's whereabouts may
     not be sufficient.  

6.   Evidence -- trial court found appellant failed in good faith
     to use reasonable efforts to locate witness -- no abuse of
     discretion found. --  The trial court's finding that appellant
     failed in good faith to use "reasonable efforts" to locate the
     witness was not an abuse of discretion when appellant stated
     only that he had spoken to some people about the witness and
     admitted that the witness possibly could have been located;
     because appellant failed to show that the declarant was
     unavailable under Ark. R. Evid. 804(a)(5), the witness's
     testimony was properly excluded.

7.   Evidence -- when evidentiary error is considered harmless. --
     Evidentiary error is harmless if the same or similar evidence
     is otherwise introduced at trial. 

8.   Appeal & error -- argument raised for first time on appeal --
     court will not address it. -- Where appellant did not make an
     argument to the trial court, the appellate court did not reach
     it; the court will not consider an argument for the first time
     on appeal.  


     Appeal from Pulaski Circuit Court; John W. Langston, Judge;
affirmed.
     Christopher C. Mercer, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Andree Layton Roaf, Justice.
     Appellant John Jones, Jr., was sentenced to thirty-six years
in prison for aggravated robbery and theft.  Jones raises several
grounds for appeal, including sufficiency of the evidence and four
evidentiary issues.  We find no error and affirm.
     On the evening of January 26, 1995, Carol Reed was robbed at
gunpoint in a Kroger parking lot in Little Rock.  The assailant
held a gun to Reed's face, took her purse containing approximately
$200, and fled the scene in a white Chevrolet Blazer. Reed was able
to give the police a description of her assailant and the clothing
he wore.  
     Jeana Stout, a customer who was sitting in her car
approximately 10-20 feet from the scene of the crime, witnessed the
robbery and was able to provide the police with a description of
the assailant.  Roy Biles, the store manager, heard Reed's screams
and came outside the store and into the parking lot just as the 
assailant was taking Reed's purse.   Biles chased the assailant
through the parking lot and saw him enter the white Blazer; he was
able to give the police the license plate number of the vehicle.  
     A few minutes after the robbery, the police located a white
Chevy Blazer with the license tag described by Biles parked outside
a house on Grant Street.  The police took Ms. Reed and Ms. Stout to
the Grant Street residence to see if they could identify the
assailant.  Approximately ten to twenty people were gathered in 
the front yard of the residence at the time the police arrived with
the two witnesses.  Both Reed and Stout positively identified Jones
as the assailant from the group gathered outside the house.  The
police arrested Jones and found approximately $457.00 in his
pockets.
     Jones' first argument on appeal is that there was insufficient
evidence to support his conviction of aggravated robbery and theft. 
This court has said on numerous occasions that in order to preserve
this issue for appeal, motions for a directed verdict must be made
at the close of the State's case-in-chief and again at the close of
all the evidence.  Clay v. State, 318 Ark. 550, 886 S.W.2d 608
(1994); Jackson v. State, 316 Ark. 405, 871 S.W.2d 591 (1994);
Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992).  Jones
never made a motion for a directed verdict at any point during the
trial; consequently, this issue is waived on appeal. 
      Jones also contends that it was error for the State to use a
gun similar to the weapon used during the robbery as demonstrative
evidence in the trial.  Jones filed a motion in limine to suppress
the use of the gun, and the court reserved ruling on the matter
until trial.  Later, during the trial, the court held that the gun
could not be used by the State as demonstrative evidence.  The gun
was never used during the trial.  Jones received the relief
requested, and accordingly he has no basis for appeal.  Richmond v.
State, 320 Ark. 566, 899 S.W.2d 64 (1995); Rank v. State, 318 Ark.
109, 883 S.W.2d 843 (1994).
     For his third point on appeal, Jones asserts that the out-of-
court identification constituted a violation of his right to due
process because it was unduly suggestive and was the result of an
illegal arrest.  At trial, the victim, an eyewitness, and a police
officer testified about the out-of-court identification of Jones. 
Both the victim and the witness identified Jones as the assailant
at trial. Jones did not file a motion to suppress the out-of-court
identification.  At no time during the trial testimony of any of
the witnesses did Jones object to the admissibility of the
identification evidence.  Instead, Jones waited until the close of
the State's case-in-chief to object. The trial court found that the
objection was not timely and that, in any event, the "lineup" was
not suggestive.  Error may not be predicated upon a ruling
admitting evidence unless there is a timely objection.  Bohannan v.
Underwood, 300 Ark. 110, 776 S.W.2d 827 (1989); Walt Bennett Ford,
Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984).  To be timely, an
objection must be contemporaneous, or nearly so, with the alleged
error.  Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995); 
Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). The trial
court correctly found that waiting until the close of the State's
case to object to the identification of Jones was not timely.  
     Jones also asserts that the jury improperly ignored his
exculpatory evidence.  At trial, Jones and another defense witness
testified that Jones was at the house on Grant Street at the time
the robbery was committed.  In contrast, the victim and an
eyewitness unequivocally testified that Jones was the perpetrator
of the crime.  On appeal, Jones asserts that the jury improperly
ignored his exculpatory evidence.  It is the sole province of the
jury to judge the credibility of the witnesses.  Callahan, supra. 
As such, the jury was free to believe the testimony of the State's
witnesses and to discount that of Jones and his witness.
      Jones finally contends that the trial court erred when it
excluded portions of Norman Lewis's testimony because it contained 
inadmissible hearsay.  According to Lewis's proffered testimony,
Ronnie Russell told him that the crime was committed by Michael
Daniels while Russell waited in the Blazer.   At trial, the defense
argued that the testimony was admissible under the "statement
against interest" exception to the hearsay rule which requires the
proponent to prove that: 1) the declarant is unavailable to testify
in court; and 2) the declarant's statement, at the time it was
made, was so contrary to the declarant's interest that he or she
would not have said it unless he believed it to be true.  Ark. R.
Evid. 804(a) & (b)(3).
  Clearly, the second prong of the test was satisfied because
Russell implicated himself in his statement, and thus it was a
statement against his penal interest.  Ark. R. Evid. 804(b)(3); See
also, Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995).     
However, it is the first prong of the test that is at issue in this
case.  According to the Arkansas Rules of Evidence, a witness is
"unavailable" only if he:
     is absent from the hearing and the proponent of his
     statement has been unable to procure . . . his attendance
     or testimony... by process or other reasonable means.
Ark. R. Evid. 804(a)(5) (emphasis added).  The proponent bears the
burden of proving the unavailability of the declarant by showing
that he or she made a "good faith effort" to procure the attendance
of the missing declarant by use of process, such as a subpoena, or
by other reasonable methods.  Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993).  Mere inquires about the declarant's whereabouts
may not be sufficient.  Id.  In Register, this court held that
"mak[ing] some phone calls" and speaking to "who I think [was] his
family" were not reasonable efforts to locate the defendant. Id.
     In this instance, the trial judge asked Jones if the
declarant, Ronnie Russell, was available to testify at trial.  The
following exchange transpired:
     DEFENSE COUNSEL: I haven't been able to find him.  Well,
     hold on, your Honor.  It's possible.  There was a Ronnie
     Russell that my have been on your docket, but I don't
     know if it's the same person.

     THE COURT: So, you're not even saying that his witness is
     unavailable?

     DEFENSE COUNSEL:  Well, the people that I've spoke to don't
     know how to find him.    
The trial court found Jones failed in good faith to use "reasonable
efforts" to locate Russell.  On appeal, we will overrule that
decision only if the trial judge abused his or her discretion. 
Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986).  Here, we
cannot say  that the trial court abused its discretion when Jones
stated only that he had spoken to some people about Russell and
admitted that Russell possibly could have been located.  Because
Jones failed to show that the declarant was unavailable under Rule
804(a)(5), Norman Lewis's testimony was properly excluded.
     Moreover, Jones testified at the trial that he had seen
Russell and Daniels jump out of the Blazer, and that Russell told
him that Daniels had committed a robbery. This court has stated
that evidentiary error is harmless if the same or similar evidence
is otherwise introduced at trial.  Williams v. Southwestern Bell
Telephone, 319 Ark. 626, 893 S.W.2d 770 (1995); Shamlin v.
Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990).  Thus, the
exclusion of Lewis' testimony, if improper, was at the most
harmless error.
     On appeal, Jones now argues that Russell's statement was an
"excited utterance" and thus an exception to the hearsay rule. 
Ark. R. Evid. 803 (2).  However, Jones did not make this argument 
to the trial court, and we have said on numerous occasions that we
will not consider an argument for the first time on appeal. 
Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).
     Affirmed.