Pyle & Tunnicliff v. State

• Decision Date: 13 January 2000
• Docket Number: 99-85
• Citation: 8 S.W.3d 491
• Parties: Jimmy Lynn PYLE and John F. Tunnicliff v. STATE of Arkansas CR 99-85 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Jimmy Lynn PYLE and John F. Tunnicliff v STATE of Arkansas

CR 99-85 ___ S.W.3d ___

Opinion delivered January 13, 2000

Supreme Court of Arkansas

Appeal from Baxter Circuit Court; Robert W. McCorkindale II, Judge; affirmed.

1. Appeal & error -- argument raised for first time on appeal not considered. -- The supreme court will not consider an argument raised for the first time on appeal.

2. Appeal & error -- party bound by arguments made at trial. -- A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial.

3. Appeal & error -- preservation of issue for appeal -- objection at first opportunity required. -- To preserve an issue for appeal, a defendant must object at the first opportunity; a party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal; the policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs.

4. Appeal & error -- argument not considered where further research required.-- The supreme court has consistently refused to consider an argument where it is not apparent without further research that the argument is well taken.

5. Appeal & error -- argument not considered absent convincing argument or authority. -- Absent any convincing argument or authority, the supreme court will not consider an issue on appeal.

6. Motions -- directed verdict -- motion required at conclusion of prosecution's evidence & at close of case. -- The supreme court's procedural rules require that a motion for a directed verdict be brought at the conclusion of the prosecution's evidence and again at the close of the case.

7. Sentencing -- consecutive or concurrent -- trial court's discretion. -- The question whether sentences should run consecutively or concurrently lies solely within the province of the trial court; the appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in the matter of the consecutive sentences.

8. Sentencing -- consecutive or concurrent -- trial court did not abuse discretion in running sentences consecutively. -- The trial court is not required to explain its reason for running sentences consecutively; where appellant failed to bear his burden of proof, the supreme court could not say that the trial court abused its discretion in running the sentences consecutively.

9. Motions -- directed verdict -- general motion does not preserve sufficiency issues. -- A general motion for a directed verdict does not preserve for appeal issues regarding sufficiency of the evidence.

10. Attorney & client -- ineffective-assistance claim -- when addressed on direct appeal. -- Although claims of ineffective assistance of counsel are ordinarily raised under Ark. R. Crim. P. 37, the supreme court has addressed them on direct appeal when the issues were previously considered by the trial court, as on a motion for a new trial, and the facts surrounding the claim were fully developed.

11. Attorney & client -- ineffective-assistance claim -- factors required to show counsel's performance was deficient. -- To prevail on any claim of ineffective assistance of counsel, a petitioner must show first that counsel's performance was deficient; to establish such deficient performance, it must be shown that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment; the petitioner must also show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial.

12. Criminal procedure -- post-conviction relief -- standard of review. -- The supreme court will not reverse the trial court's decision granting or denying post-conviction relief unless it is clearly erroneous.

13. Criminal law -- plea bargain -- no binding effect until accepted by trial court. -- Until a trial court accepts a plea bargain, it has no binding effect.

14. Criminal law -- plea bargain -- trial court did not err in finding no plea agreement existed. -- Where nothing in the record indicated that appellant ever attempted to alert the trial court to the fact that he had accepted a plea, and where the trial court found that a formal plea never existed, although there had been communications about a possible plea agreement, the supreme court could not say that the trial court erred in finding that no plea agreement existed.

15. Witnesses -- credibility -- conflicts for trial court to decide. --Conflicts in testimony are for the trial court to resolve, as it is in a superior position to determine the credibility of witnesses.

16. Attorney & client -- ineffective-assistance claim -- appellant's counsel not ineffective for not enforcing nonexistent plea agreement. -- The supreme court could not say that appellant's counsel was ineffective for not enforcing a plea agreement that never existed.

17. Attorney & client -- ineffective-assistance claim -- lawyer's choice of trial strategy not basis for. -- The supreme court agreed with the trial court's finding that appellants' defenses were never antagonistic and thus did not warrant severance; a lawyer's choice of trial strategy, even if it proved ineffective, is not a basis for meeting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984); the decision whether to seek severance is one of strategy.

18. Criminal law -- entrapment -- defendant cannot assert when denying having committed offense. -- If a defendant denies committing an offense, he cannot assert that he was entrapped into committing the offense.

19. Attorney & client -- ineffective-assistance claim -- attorney cannot be declared ineffective for failing to present inconsistent defense. -- An attorney cannot be declared ineffective for failing to present a defense theory entirely inconsistent with the defendant's denial of committing the crime; where one appellant's entire defense centered on the fact that he was innocent, with the other appellant accepting all blame, the former could not claim on appeal that his attorney was ineffective for failing to seek an entrapment instruction, which was inconsistent with his defense.

20. Attorney & client -- ineffective-assistance claim -- argument not considered where not raised below. -- Where one appellant claimed that his counsel was ineffective for failing to object to a statement by the other appellant at trial, but where he never argued the impropriety of this statement at trial, in his motion for a new trial, or during the posttrial hearing, the supreme court did not consider it; the supreme court has refused to consider such a claim unless the surrounding facts and circumstances were fully developed either during the trial or during other hearings conducted by the trial court.

21. Attorney & client -- ineffective-assistance claim -- relief not granted where petitioner fails to show how omitted testimony could have changed outcome. -- When a petitioner alleging ineffective assistance of counsel for failure to call a witness fails to show what the omitted testimony was and how it could have changed the outcome, the supreme court will not grant post-conviction relief for ineffective assistance of counsel.

Louis Etoch, for appellant Jimmy Lynn Pyle.

Chris Carter, for appellant John F. Tunnicliff.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

Donald L. Corbin, Justice.

Appellants Jimmy Lynn Pyle and John F. Tunnicliff appeal the judgments of the Baxter County Circuit Court convicting each of them of two counts of possession of methamphetamine and one count of simultaneous possession of drugs and firearms. In addition, Pyle appeals his convictions of one count of possession of marijuana and one count of possession of drug paraphernalia. Tunnicliff appeals his conviction of being a felon in possession of a firearm. Pyle was sentenced to a term of life imprisonment. Tunnicliff was sentenced to a term of fifty years' imprisonment. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Each Appellant raises several points for reversal. We find no error and affirm.

Facts

Tunnicliff and Pyle were arrested following a prearranged reverse-buy sting operation in Mountain Home when an undercover police agent sold them methamphetamine. The police had been working with a confidential informant who was an acquaintance of Tunnicliff's and knew that he wanted to purchase methamphetamine. The informant had agreed to work with law enforcement officials in exchange for the dismissal of charges pending against him, namely driving while intoxicated (DWI) and possession of marijuana.

The informant contacted Tunnicliff and offered to arrange a sale of three ounces of crystal methamphetamine at a price of $1,300 per ounce. Tunnicliff agreed to the purchase, and a meeting was arranged for the following day at a nearby storage facility. Tunnicliff, however, failed to appear at that meeting. The informant again contacted Tunnicliff, who explained that he was unable to find transportation to the meeting. Another meeting was scheduled, and Tunnicliff told the informant he would arrive at the meeting in a white car. The following day, Tunnicliff arrived at the storage facility in a white Lincoln driven by Pyle. An undercover officer was present along with the informant. The officer passed the drugs to Tunnicliff and Pyle. Both men inspected the quality of the drugs by sniffing them; Tunnicliff even went so far as to taste them. Tunnicliff and Pyle purchased all three ounces of the methamphetamine, and subsequently, both men were arrested.

Police conducted an inventory search of the car, which was registered to Pyle. A black bag was found in the front seat of the vehicle. It contained a checkbook belonging to Pyle,...