McClina v. State, ___ S.W.3d ___ (Ark. 10/9/2003)

• Decision Date: 09 October 2009
• Docket Number: CR 02-1345
• Citation: ___ S.W.3d ___
• Parties: Corey Demont McCLINA <U>v</U>. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 1

___ S.W.3d ___

Corey Demont McCLINA v STATE of Arkansas.

CR 02-1345

Supreme Court of Arkansas

Opinion delivered October 9, 2003

1. CRIMINAL PROCEDURE — ARK. R. CRIM. P. 33.1 — STRICTLY CONSTRUED. — Arkansas Rule of Criminal Procedure 33.1 is strictly construed; a motion for a directed verdict that is made during a closing argument instead of at the close of evidence does not preserve a sufficiency argument for appellate review.

2. APPEAL & ERROR — NO MOTION FOR DISMISSAL MADE AT CLOSE OF EVIDENCE — SUFFICIENCY CHALLENGE NOT PRESERVE FOR APPELLATE REVIEW. — In order to preserve the issue of sufficiency of the evidence, appellant had to make a motion for dismissal at the close of all evidence before closing arguments; because of his failure to do so, he did not preserve his sufficiency challenge for appellate review; appellant failed to comply with Ark. R. Crim. P. 33.1(b) and (c); therefore, the supreme court would not address the merits of his sufficiency argument.

3. APPEAL & ERROR — CASE RELIED UPON DISTINGUISHABLE — APPELLANT'S ARGUMENT FAILED. — Appellant's reliance on O'Connor v. Ohio, 385 U.S. 92 (1966), was misplaced; in O'Connor the Court vacated a conviction and remanded the case to the Ohio Supreme Court for further proceedings in light of the Court's holding in Griffin v. California, 380 U.S. 609 (1965), which held that the Fifth Amendment forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt; following remand, the Ohio Supreme Court upheld the petitioner's conviction solely on the ground that he had failed to object to the prosecutor's comment on his failure to testify at his trial and during his first appeal in the state courts"; the Court, noting that Griffin was to be applied prospectively and that the petitioner's conviction was not final when Griffin was decided, held that "in these circumstances the failure to object in the state courts cannot bar the petitioner from asserting this federal right"; here, appellant should have been aware of the requirement to move for a motion to dismiss at a bench trial to preserve a sufficiency argument for appellate review.

4. CRIMINAL PROCEDURE — CONTEMPORANEOUS OBJECTION RULE — ONE PURPOSE SERVED BY. — The purpose for requiring a contemporaneous objection rule is to allow the trial court the opportunity to consider an issue and correct any error; although perhaps uncommon, a trial court could well be confused about elements of an offense and that confusion could be eliminated at trial if an objection were raised identifying alleged deficiencies in the prosecution's case; a motion for a directed verdict should be specific so as to inform the trial court what insufficiencies are exposed by failure of proof, and to allow the trial court to reflect on the issue and give an informed decision.

5. CRIMINAL PROCEDURE — CONTEMPORANEOUS OBJECTION RULE — SECOND PURPOSE SERVED BY. — The second purpose for requiring a contemporaneous objection rule is that the motion allows the trial court the option of either granting the motion or allowing the prosecution to reopen its case to supply missing proof; proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict; when specific grounds are stated and absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.

6. CRIMINAL PROCEDURE — CONTEMPORANEOUS OBJECTION RULE HAS CLEAR PURPOSES — APPELLANT'S ARGUMENT WITHOUT MERIT. — Where the State presented at least two reasons for the purpose of Ark. R. Crim. P. 33.1, appellant's argument that Rule 33.1 served no perceivable purpose was without merit.

7. ATTORNEY & CLIENT — CLAIM OF INEFFECTIVE ASSISTANCE — ISSUE MUST HAVE BEEN CONSIDERED AT TRIAL. — The supreme court will not consider ineffective assistance as a point on appeal unless that issue has been considered by the trial court.

8. APPEAL & ERROR — POSTCONVICTION RELIEF — ADDRESSED ON DIRECT APPEAL IF IT WAS FIRST RAISED DURING TRIAL OR IN MOTION FOR NEW TRIAL. — While Rule 37 of the Arkansas Rules of Criminal Procedure generally provides the procedure for postconviction relief due to ineffective counsel, the supreme court will address this issue on direct appeal, provided that it was first raised during trial or in a motion for a new trial and provided that surrounding facts and circumstances were fully developed either during trial or during other hearings conducted by the trial court.

9. APPEAL & ERROR — POSTCONVICTION PROCEEDINGS — NO RIGHT TO COUNSEL. — A defendant in a criminal case is entitled to effective assistance of counsel; however, there is no right to counsel in a postconviction proceeding; the trial court may, at its discretion, appoint counsel to represent a defendant at a postconviction hearing [Ark. R. Crim. P. 37.3 (2003)].

10. APPEAL & ERROR — APPELLANT FAILED TO SHOW THAT HE HAD BEEN DENIED COUNSEL ON APPEAL — ARGUMENT MADE WITHOUT CITATION TO AUTHORITY NOT ADDRESSED. — Where appellant was, in fact, represented by counsel on appeal, he appeared to be arguing that, on appeal, he should be allowed to make arguments which, as a result of ineffective trial counsel, were procedurally barred, and appellant failed to cite any authority for this proposition, nor did he cite any authority for his argument that, even if this court found no Sixth Amendment violation, there was still an Arkansas constitutional violation; arguments unsupported by authority or convincing argument will not be considered by the court. [cme]

Appeal from Pulaski Circuit Court; John B. Plegge, Judge; affirmed.

William R. Simpson, Jr., Public Defender, by: Erin Vinett, Deputy Public Defender, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

JIM HANNAH, Justice.

On August 5, 2002, Appellant Corey McClina stood bench trial in the Pulaski County Circuit Court, Seventh Division, on charges of residential burglary and misdemeanor theft of property. The State presented testimony of three witnesses. The defense presented testimony of one witness. After resting its case, the defense made no motion for dismissal. The trial court found McClina guilty on both counts. The trial court sentenced McClina to five years' imprisonment for the burglary conviction and imposed a fine of $100 for the theft conviction.¹

On appeal, McClina argues that Arkansas's procedural default rules are unconstitutionally applied to him where the evidence supporting his conviction was wholly insufficient. We disagree, and we affirm the trial court. This case was certified to this court by the court of appeals pursuant to Ark. S. Ct. R. 1-2(b)(3), and (6).

Facts

On June 25, 2002, the State filed a two-count felony information against McClina, charging him with residential burglary of Jerry Phillips's trailer and with misdemeanor theft of Phillips's property. At the bench trial, Phillips testified that on March 14, 2002, while at work, he received a phone call from a friend who notified him that someone had broken into his home at the Whispering Hills trailer park located at 11500 Chicot Road, Lot 10, in Little Rock. He stated that upon arriving at home, he discovered that his home had been "ram shacked." He estimated his loss at $600 or $700; however, he did not identify the lost property. He also did not identify the perpetrator.

Officer Kenneth Walker of the Little Rock Police Department testified that he responded to a call of "unknown trouble" at 11500 Chicot Road. Once he arrived on the scene, Walker spoke to Phillips and another witness and made a report. In his report, Walker did not identify either the lost property or the perpetrator.

The State then called Jonathan Taylor to testify. Taylor testified that he spoke to a police officer in response to a burglary that had occurred at Phillips's trailer. He stated that he told the police officer that he saw McClina "walking away from the trailer with the stuff." When asked what McClina was carrying when he left the trailer, Taylor stated that he forgot. In an attempt to refresh Taylor's memory, the deputy prosecutor showed Taylor a prior statement he had made to a Detective Tribble. Taylor read the statement and testified that he remembered speaking with the detective and that he remembered telling the detective that when McClina came out of the house, he was carrying "some clothes and shoes."

The deputy prosecutor continued to question Taylor about what he saw:

Q: Do you remember that that's what he was carrying?

A: When he came across the street.

Q: When he came across the street?

A: Yes, ma'am.

I. And when he came across the street, was he coming directly from the house that was burglarized?

A: No, ma'am.

Q: Where was he coming from?

A: He was coming from around the corner.

Q: Okay, so he came across the street and you saw him coming out?

A: Coming out of the house?

Q: Uh-huh.

A: No, ma'am. I seen him coming away from the house.

Q: Okay. Do you remember telling the police officer the day you talked to him, the day the burglary occurred, that you saw him coming out of the house, coming across the street?

A: Yes, ma'am.

Q: Okay. And you remember telling him that?

A: Yes, ma'am.

***

On cross-examination, defense counsel questioned Taylor about several other burglaries which had occurred at the trailer park. Taylor admitted that he had been involved in some of the burglaries due to "peer pressure." When defense counsel asked Taylor what he saw McClina doing on the day in question, Taylor responded: "When he came across the street, I seen him with some clothes, some shoes, and a watch, some watches."

Defense counsel next called Detective Tribble to the stand. Tribble stated that Taylor told him that McClina was responsible for the burglary of Lot 10. Tribble also testified that Taylor ...