McClina v. State

• Decision Date: 09 October 2003
• Docket Number: No. CR 02-1345.,CR 02-1345.
• Citation: 354 Ark. 384,123 S.W.3d 883
• Parties: Corey Demont McCLINA v. STATE of Arkansas.
• Court: Arkansas Supreme Court

123 S.W.3d 883

354 Ark. 384

Corey Demont McCLINA v.STATE of Arkansas.

No. CR 02-1345.

Supreme Court of Arkansas.

October 9, 2003.

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

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

JIM HANNAH, Justice.

On August 5, 2002, AppellantCorey 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.

Q: 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 "was listed as a suspect on the original report by the officer."After presenting testimony from Tribble, the following colloquy took place between defense counsel and the trial court:

DEFENSE COUNSEL: Your Honor, at this time the Defense rests; I would like to be heard on closing argument.

THE COURT: You say the Defense rests?

DEFENSE COUNSEL: Yes, sir, and I'd like to be heard on closing.

* * *

DEFENSE COUNSEL: Your Honor, I would like to say the entire case rests on this juvenile who's 14, Jonathan Taylor, and that his testimony is inconsistent.He didn't remember much.He didn't see our client coming from trailer ten where the burglary occurred.He said several times that he saw Mr. McClina coming from around the corner.

And I would submit that he has an interest in the outcome of this having been a suspect in this case and the fact that he admits to some burglaries and not to others is not, I think a great enforcement of his honesty.Even Detective Tribble thought he was a suspect in this case at first and that there is a reasonable doubt as to my client's guilt.

THE COURT: All right, thank you.Come up to the podium, please.All right, Mr. McClina, it will be the finding of the Court that you were guilty of these charges—

* * *

McClina challenges the sufficiency of the evidence, arguing that "the only evidence that the State produced was that the Appellant was in the general proximity of the crime scene, a trailer park, on the day the crime allegedly occurred."The State argues that McClina's challenges to the sufficiency of the evidence supporting his convictions are not preserved for appellate review because McClina failed to make a motion for dismissal at the close of the evidence.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides, in part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence.The motion for dismissal shall state the specific grounds therefor.If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of the evidence.

(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.

Though McClina failed to comply with the plain language of Rule 33.1, he requests that we treat his closing argument as a motion for dismissal and reach the merits of his sufficiency argument.Rule 33.1 is strictly construed.SeeState v. Holmes,347 Ark. 689, 66 S.W.3d 640(2002);Etoch v. State,343 Ark. 361, 37 S.W.3d 186(2001).In Holmes, supra,we held that a motion for a directed verdict that was made during a closing argument instead of at the close of evidence did not preserve a sufficiency argument for appellate review.Holmes,347 Ark. at 693, 66 S.W.3d 640.

In the present case, McClina failed to make a motion for dismissal.Instead, during his closing argument, defense counsel argued that McClina was not a credible witness and stated that there was a reasonable doubt as to McClina's guilt.At no time did McClina ask for a dismissal of charges.Under Holmes, supra,andEtoch, supra, we adhere to a strict interpretation of our rules.In order to preserve the issue of sufficiency of the evidence, McClina 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.We hold that McClina failed to comply with Ark. R.Crim. P. 33.1(b) and (c).Therefore, we will not address the merits of McClina's sufficiency argument.

Alternatively, McClina argues that the application of procedural bars in this case will result in a violation of the due process guarantees of the Fourteenth Amendment, as well as article 2, section 8, of the Arkansas Constitution.To support his argument, McClina cites O'Connor v. Ohio,385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189(1966), and argues that the Court's holding stands for the proposition that the application of a contemporaneous objection rule is barred when the rule serves no legitimate function.The present case is distinguishable from O'Connor.In O'Connor, supra,the petitioner had previously come before the United States Supreme Court arguing "that the prosecutor's comment upon his failure to testify during his trial for larceny violated the constitutional right to remain silent."385 U.S. at 92, 87 S.Ct. 252.

The O'Connor Court vacated the 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, 85 S.Ct. 1229, 14 L.Ed.2d 106(196...