Richard Brown v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR08-127
RICHARD BROWN,
Opinion Delivered
September 25, 2008
APPELLANT,
A P P E A L F R O M T H E S A L IN E
COUNTY CIRCUIT COURT,
NO. CR-06-329-2,
HON. GARY M. ARNOLD, JUDGE,
VS.
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
1.
APPEAL & ERROR — MOTION FOR DIRECTED VERDICT — APPELLANT’S SUFFICIENCY -OF-THE EVIDENCE ARGUMENT WAS NOT PRESERVED FOR APPELLATE REVIEW BECAUSE APPELLANT ’S
COUNSEL FAILED TO MAKE A SPECIFIC MOTION REGARDING LACK OF EVIDENCE . — A
challenge to the sufficiency of the evidence is preserved by making a specific motion for
directed verdict at both the conclusion of the State’s case and at the conclusion of all the
evidence; because appellant’s counsel failed to make a specific motion regarding lack of
evidence to prove the requisite intent, his argument is not preserved for appellate review.
2.
APPEAL & ERROR — REVIEW IN DEATH OR LIFE IMPRISONMENT CASES — ARK. SUP . CT . R.
4-3(h) DOES NOT MANDATE REVIEW OF APPELLANT ’S CLAIM BECAUSE DIRECTED -VERDICT
MOTION WAS NOT PROPERLY MADE . — Failure to make the motions for directed verdict with
specificity regarding the sufficiency issue on appeal equates to the motion never having been
made; as a result, Ark. Sup. Ct. R. 4-3(h) does not mandate review when a directed-verdict
motion has not properly been made; because no argument was presented to illustrate a lack
of evidence as to appellant’s purposeful intent, Rule 4-3(h) does not mandate review of this
point.
3.
APPEAL & ERROR — SENTENCING — ARGUMENT THAT SENTENCE WAS DISPROPORTIONATE
NOT PRESERVED FOR APPEAL. — A defendant who makes no objection at the time the
sentence is imposed has no standing to complain of it; here, appellant’s argument that his
sentence was disproportionate to the facts established at trial in violation of the Arkansas
Constitution’s prohibition against the infliction of cruel and unusual punishment was not
preserved because appellant failed to present an objection to his sentence to the circuit court;
appellant’s sentence was therefore affirmed.
Appeal from Saline Circuit Court; Gary M. Arnold, Judge; affirmed.
David O. Bowden, for appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
Appellant Richard Brown appeals his conviction for first-degree murder and his
sentence of life imprisonment plus an additional five years for the use of a firearm. He asserts
two points on appeal: (1) that the circuit court erred in denying his directed-verdict motion
because the evidence was insufficient to prove the requisite intent to sustain the conviction;
and (2) that the sentence imposed by the jury is unconstitutionally disproportionate to the
facts established at trial. We affirm Brown’s convictions and sentence.
The record reveals the following facts. On April 18, 2006, in Shannon Hills, Arkansas,
Cody Brown, Brown’s son, had been working with Raymond Lowe Jr., the victim in this
case, to repair a truck belonging to Michael Franks, a friend of the Brown family. Cody
Brown and Lowe went together to retrieve Franks’s keys for his truck. At the time, Franks
was at the Browns’ home. As they pulled into the driveway, Cody Brown saw his father
walking toward their house. Lowe approached Franks, who was sitting outside in a chair, to
get his keys. Cody Brown did not see any initial confrontation between Lowe and Franks and
began to listen to the radio while he waited on Lowe to return to the vehicle. Franks testified
that, indeed, there had not been a confrontation between himself and Lowe. Franks did
testify that Lowe had been “razzing” him to get the keys, but Franks would not turn over the
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keys. According to Franks, Lowe pushed him out of his chair a few times, but that it was a
form of giving him a hard time and Franks was not afraid of Lowe, nor did he believe it was
escalating into a fight. Shortly thereafter, Cody Brown and Franks heard gunfire. Cody
Brown then saw Lowe lying on the ground and his father standing on the porch with his
shotgun.
Brown was tried for Lowe’s murder on August 28, 2007, and found guilty by a jury
of first-degree murder. He was sentenced to life imprisonment plus an additional five years
for the use of a firearm. Brown filed a timely notice of appeal on September 14, 2007.
Neither of Brown’s arguments on appeal were preserved for our review and, therefore, we
affirm.
Arkansas Code Annotated section 5-10-102 states in pertinent part that:
(a) A person commits murder in the first degree if:
(1) Acting alone or with one (1) or more other persons:
(A) The person commits or attempts to commit a felony; and
(B) In the course of and in the furtherance of the felony or in immediate
flight from the felony, the person or an accomplice causes the death of any
person under circumstances manifesting extreme indifference to the value of
human life;
(2) With a purpose of causing the death of another person, the person causes
the death of another person; or
(3) The person knowingly causes the death of a person fourteen (14) years of
age or younger at the time the murder was committed.
Ark. Code Ann. § 5-10-102(a) (Repl. 2006).
Brown first argues that there was insufficient evidence introduced by the State at trial
to prove the requisite intent to sustain a conviction of first-degree murder. The requisite
intent for first-degree murder is purposefully. See id. § 5-10-102(a)(2). However, we decline
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to reach this issue of sufficiency of the evidence because it is not preserved for our review.
A challenge to the sufficiency of the evidence is preserved by making a specific motion for
directed verdict at both the conclusion of the State’s case and at the conclusion of all of the
evidence. See Ark. R. Crim. P. 33.1 (2007); Maxwell v. State, ___ Ark.___, ___ S.W.3d ___
(May 29, 2008). Rule 33.1 provides, in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made
at the close of the evidence offered by the prosecution and at the close of all of
the evidence. A motion for directed verdict shall state the specific grounds
therefor.
....
(c) The failure of a defendant to challenge the sufficiency of the evidence at the
times and in the manner required in subsections (a) and (b) above will
constitute a waiver of any question pertaining to the sufficiency of the evidence
to support the verdict or judgment. A motion for directed verdict or for
dismissal based on insufficiency of the evidence must specify the respect in
which the evidence is deficient. A motion merely stating that the evidence is
insufficient does not preserve for appeal issues relating to a specific deficiency
such as insufficient proof on the elements of the offense. A renewal at the close
of all of the evidence of a previous motion for directed verdict or for dismissal
preserves the issue of insufficient evidence for appeal. If for any reason a motion
or a renewed motion at the close of all of the evidence for directed verdict or
for dismissal is not ruled upon, it is deemed denied for purposes of obtaining
appellate review on the question of the sufficiency of the evidence.
Ark. R. Crim. P. 33.1 (a), (c) (2007).
The rationale behind this rule is that “when specific grounds are stated and the absent
proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow
the State to reopen its case and supply the missing proof.” Pinell v. State, 364 Ark. 353, 357,
219 S.W.3d 168, 171 (2005). Without a ruling from the circuit court on a specific motion,
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there is nothing for this court to review. See Ashley v. State, 358 Ark. 414, 191 S.W.3d 520
(2004).
In the instant case, counsel for Brown failed to make a specific motion regarding lack
of evidence to prove the requisite intent. His motion asserted only that “no evidence [was]
adduced that [Brown] could have retreated from the situation” and that the evidence did not
provide proof beyond a reasonable doubt as to where Brown fired the shot from. No
argument was presented to illustrate a lack of evidence as to Brown’s purposeful intent.
Accordingly, his sufficiency argument is not preserved for our review.
We are mindful of the fact that Brown was sentenced to life imprisonment and that
this court is required to review all motions made for potential reversible error under Arkansas
Supreme Court Rule 4-3(h). Nevertheless, this court has held in the past that failure to make
the motions for directed verdict with specificity regarding the sufficiency issue on appeal
equates to the motion never having been made. See Maxwell, supra (citing Tillman v. State,
364 Ark. 143, 217 S.W .3d 773 (2005); Webb v. State, 327 Ark. 51, 938 S.W.2d 806
(1997)).
Rule 4-3(h), as a result, does not mandate review of the point regarding
requisite intent when the directed-verdict motion was not properly made. See Tillman,
364 Ark. at 147, 217 S.W .3d at 775.
Brown’s second argument on appeal is that his sentence is disproportionate to the
facts established at trial and, therefore, violates the Arkansas Constitution’s prohibition
against the infliction of cruel and unusual punishment. However, this argument is also
not preserved for our review. Brown failed to present an objection to his sentence to the
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circuit court. A defendant who makes no objection at the time the sentence is imposed
has no standing to complain of it. See Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571
(1997); Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); McGee v. State, 271 Ark.
611, 609 S.W.2d 73 (1980). Even constitutional arguments will not be addressed when
raised for the first time on appeal. See Young v. State, 370 Ark. 147, 257 S.W.3d 870
(2007). Therefore, we decline to address this point and affirm.
Pursuant to Arkansas Supreme Court Rule 4-3(h), a review of the record has been
made for reversible error, and none has been found.
Affirmed.
G LAZE , J., not participating.
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