Goins v. State

• Decision Date: 17 January 1995
• Docket Number: No. CR,CR
• Citation: 890 S.W.2d 602,318 Ark. 689
• Parties: Jesse Lee GOINS and Arthur Dean Davis, Jr., Appellants, v. STATE of Arkansas, Appellee. 94-678.
• Court: Arkansas Supreme Court

Page 602

890 S.W.2d 602

318 Ark. 689

Jesse Lee GOINS and Arthur Dean Davis, Jr., Appellants, v. STATE of Arkansas, Appellee.

No. CR 94-678.

Supreme Court of Arkansas.

Jan. 17, 1995.

Robert Neal Jeffrey, Sheridan, for Davis.

Donald H. Smith, Pine Bluff, for Goins.

Winston Bryant, Atty. Gen., Little Rock, for State.

HOLT, Chief Justice.

The appellants, Jesse Lee Goins and Arthur Dean Davis, Jr., raise six and four points, respectively, for reversal of their convictions on charges of aggravated robbery, for which they were both sentenced to terms of life imprisonment. Three of the arguments are overlapping. None has merit, and we affirm the judgments.

Due to the number of points on appeal, we set forth the various issues as framed by Goins and Davis, noting those arguments that overlap:

I. (Goins) and II. (Davis) Whether the trial court erred in denying the appellants' motion for a continuance.

II. (Goins) Whether the trial court erred in denying appellant Goins's motion to sever the defendants.

III. (Goins) and I. (Davis) Whether the trial court erred in denying the appellants' motion to suppress the photo identification of Goins and Davis.

IV. (Goins) and III. (Davis) Whether the trial court erred in denying the appellants' motion to strike the jury panel.

IV. (Davis) Whether the trial court erred in denying appellant Davis's motion for a mistrial following a courtroom disturbance involving appellant Goins.

V. (Goins) Whether the trial court erred in overruling appellant Goins's objection to a remark made by the Deputy Prosecutor during closing argument.

VI. (Goins) Whether the trial court erred in denying appellant Goins's motion for a directed verdict.

Facts

In the morning of January 20, 1994, Melissa Price, the co-owner and manager of the Prattsville One-Stop, a convenience store in Prattsville, Grant County, Arkansas, was accosted by two men who had entered the store while she was in the back doing paper work. One of the men, whom she later identified as Lamar Boris Davis, pointed a small handgun at her while the other, whom she subsequently identified as his brother, appellant Arthur Dean Davis, Jr., put a large lock-blade knife to her throat and said, "We need your money." Pressing the knife at her throat, the man identified as appellant Davis told Ms. Price not to look at him and to open the cash register. Meanwhile, the man identified as Lamar Davis continued to point his gun and her and warned her "to quit looking at him."

After Ms. Price opened the cash register, the two men took cash from it, along with a bank bag containing the day's deposit. Then, they ordered Ms. Price to lie on the floor, where they attempted to tape her arms to her body. The two men had succeeded in taping one arm when they heard a car pulling up to the gas pumps outside. At that point, they ran to a waiting vehicle driven by a third person, appellant Jesse Lee Goins. Ms. Price was able to see the "large, blue, four-door car" clearly and to obtain its license-plate number, and Barry Cooper, the customer who had just arrived, saw appellant Davis and another man run out of the store to an "[o]ld, blue car."

Acting on the information supplied by Ms. Price, Dallas County Sheriff Donny Ford and other law enforcement officers stopped the vehicle near Fordyce and placed Jesse Goins, Arthur Davis, and Lamar Davis under arrest. The vehicle in question and the license-plate number matched the descriptions reported to Grant County authorities by Ms. Price. During a search of the vehicle, Sheriff Ford discovered a stainless-steel handgun in the back seat, a lock-blade knife in the glove compartment, and money on the floorboard.

The three men were charged with aggravated robbery, in violation of Ark.Code Ann. § 5-12-103 (Repl.1993). Lamar Davis was tried separately, and his conviction was recently affirmed by this court. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). Appellants Jesse Goins and Arthur Davis were tried as co-defendants before a jury in the Grant County Circuit Court on March 17, 1994. They were both found guilty and were sentenced individually to life imprisonment. From that judgment, this appeal arises.

Directed verdict

Goins, in his Point VI, contends that the trial court erred in denying his motion for a directed verdict. A directed verdict motion is a challenge to the sufficiency of the evidence. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). As such, it must be addressed by this court before any other points on appeal. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

After the State rested in the present case, counsel for Goins moved "for a directed verdict of acquittal on behalf of Jesse Goins, insufficient evidence to send to the jury." Subsequently, after the close of all the evidence, counsel for Goins stated that "[w]e rest on behalf of Jesse Goins, and ask for a directed verdict." In both instances, Goins failed to preserve his challenge to the sufficiency of the evidence by neglecting to apprise the trial court of the specific basis on which each motion was made. See Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

We recently reaffirmed our position, in Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994), and Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), that a general reference to "insufficient evidence" does not meet the demands of Ark.R.Crim.P. 36.21(b). Such a general motion constitutes a waiver of the right to challenge the sufficiency of the evidence. Daffron v. State, supra. Directed verdict motions must state specific grounds. Middleton v. State, supra. The sufficiency issue having been waived, its merits need not be addressed. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).

Motion for continuance

Goins, in his Point I, and Davis, in his Point II, argue that the trial court erred in denying their respective motions for a continuance. The motions were made in chambers before jury selection began. Both appellants assert on appeal that a continuance was necessary because of the unavailability, due to surgery, of an alibi witness. However, Davis's attorney did not specifically join Goins's attorney in making a motion for a continuance on that basis. But, prior to trial, Davis independently sought a continuance on the basis that his attorney, Robert Jeffrey, did not represent him until four days before the trial began and that he therefore did not have adequate time for preparation.

In order to obtain a continuance, the appellant must make a showing of good cause. Davis v. State, supra. A motion for a continuance is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). The defendant has the burden of proof in demonstrating the abuse of discretion. Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994). That burden entails a showing of prejudice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993).

Goins's attorney stated that Billy Johnson, a prospective alibi witness, could place Goins "in Camden or near Fordyce and Camden" at the time the robbery occurred. Davis's attorney, as noted above, did not specifically join in the motion on that ground, and we therefore need only address the unavailability issue as it pertains to Goins.

Goins showed no diligence in attempting to secure the presence of the witness but instead made his motion for continuance immediately before trial. Moreover, he made no proffer of the prospective witness's testimony. Instead, counsel for Goins offered the following explanation:

... I got over here to talk to Mr. Goins on Wednesday, and at that time I discovered the name of a witness that would be an alibi witness that would place him in Camden or near Fordyce and Camden at the time that this alleged crime took place. He was supposed to be here according to other witnesses, but I am advised he entered the hospital yesterday and is unable to attend Court.

I am trying to obtain information on what he is doing in the hospital and whether it is a legitimate thing, but he is supposed to be here, but he can't be here because he is in the hospital. Billy Johnson.

This vague statement, in which Goins's attorney seemed unclear as to the substance of the prospective witness's testimony, was no substitute for a proffer. Under the circumstances, Goins has failed to show how the trial court abused its discretion in denying Goins's motion for a continuance. See Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990).

With respect to Davis's claim that the trial court should have granted a continuance because his attorney lacked adequate time to prepare for trial, it is apparent that, contrary to Davis's assertion that Mr. Jeffrey had a mere four days for trial preparation, the attorney had been involved in the matter for nearly two months prior to trial and was familiar with the case. Mr. Jeffrey represented all three co-defendants at a bond hearing on January 24, 1994, and spoke with Davis about the case at that time. He admittedly received all discovery in the case. Subsequently, though, another attorney, Norman Mark Klappenbach, was brought in to represent Davis, and Goins retained his own counsel.

When a motion for a continuance is based on a lack of time to prepare, this court will consider the totality of the circumstances. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990). Only on March 13, 1994, four days before the March 17, 1994 trial date, did the circuit court actually appoint Mr. Jeffrey to represent Arthur Davis. Yet he was not, by virtue of this late appointment, cast into a legal void. He had represented all of the co-defendants less than two months earlier and had conferred with Davis about the case. As in Davis v. State, supra, the attorney argued primarily in general terms that he lacked adequate time in which to prepare for trial,...