Patrick v. State, CR
| Decision Date | 04 October 1993 |
| Docket Number | No. CR,CR |
| Citation | 314 Ark. 285,862 S.W.2d 239 |
| Parties | Tracy Lovell PATRICK, Appellant, v. STATE of Arkansas, Appellee. 93-475. |
| Court | Arkansas Supreme Court |
Robert P. Remet, Star City, for appellant.
Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was found guilty of kidnapping, burglary, aggravated assault, and battery. He makes two arguments on appeal. We do not reach the first, there is no merit in the second, and, accordingly, we affirm.
Appellant's first point of appeal does not specify a trial court error, but merely states, "Appellant was not identified beyond a reasonable doubt as a perpetrator." The argument is based either on appellant's motion to suppress the witnesses' identification of him, or on the sufficiency of the identification evidence; but, in either event, is procedurally barred. The argument is perhaps predicated on appellant's motion to suppress any in-court identification because a photographic lineup was unduly suggestive. However, there is nothing in the abstract to indicate that a ruling was made on the motion. The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are therefore waived and may not be relied upon on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Because appellant did not obtain a ruling on his motion to suppress, he is barred from raising the issue on appeal. Burnett v. State, 299 Ark. 553, 560, 776 S.W.2d 327, 331 (1989).
The argument is more likely predicated on the sufficiency of the evidence because, in his argument, he contends in part that witnesses did not have the ability to identify him in court. If this is his argument, it is also procedurally barred. To preserve a challenge to the sufficiency of the evidence in a jury trial a defendant must move for a directed verdict both at the close of the prosecution's evidence and at the close of the case. A.R.cR.P. rule 36.21(b). we have repeatedly held that failure to so do results in a waiver of the issue. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). A directed verdict motion must be a "specific motion to apprise the trial court of the particular point raised." Middleton v. State, 311 Ark. 307, 309, 842 S.W.2d 434, 435 (1992). To preserve an issue for appeal, that issue must be stated clearly and specifically to the trial court. Parette v. State, 301 Ark. 607, 616, 786 S.W.2d 817, 822 (1990). At the close of the State's case, appellant moved to dismiss either the kidnapping charge or the aggravated assault charge on the basis of continuing conduct. See Ark.Code Ann. § 5-1-110(a)(5) (1987). Immediately thereafter, appellant moved to dismiss the battery charge on either of two grounds: first, the injury was not sufficient to constitute battery in the first degree, and, second, the evidence would not support accomplice liability. He did not move for a directed verdict because the evidence used to identify him was insufficient. After all of the evidence, he "renewed" his motion for a directed verdict "on the same basis as announced at the close of the state's case." Appellant did not give the trial court an opportunity to rule on the sufficiency of the identification evidence, and, as a result, an appeal on the issue is procedurally barred. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).
Appellant's second assignment of error involves the trial court's refusal to grant a mistrial. The facts leading to the ruling are as follows. Six armed men together committed these crimes. The prosecutor was attempting to show that appellant was one of the six and asked the investigating officer about an interview with appellant at the time appellant had been returned to Arkansas from Washington. Most of the details focused on appellant's identification; questions relating to size, hair style, date of birth, and place of residence. The prosecutor next asked the officer to read a statement from appellant about where he was on...
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...the jury to ignore the statement. Echols now contends that the trial court erred by refusing to grant a mistrial. In Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993), we held that an admonition was sufficient to cure any possible prejudice that resulted from an inadvertent reference to......
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Walker v. State
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