Travis v. State

• Decision Date: 05 May 1997
• Docket Number: No. CR,CR
• Citation: 944 S.W.2d 96,328 Ark. 442
• Parties: Phillip TRAVIS, Appellant, v. STATE of Arkansas, Appellee. 96-1466.
• Court: Arkansas Supreme Court

Page 96

944 S.W.2d 96

328 Ark. 442

Phillip TRAVIS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-1466.

Supreme Court of Arkansas.

May 5, 1997.

Kelly M. Pace, Jacksonville, for Appellant.

Winston Bryant, Attorney General, David R. Raupp, Senior Assistant Attorney General, Little Rock, for Appellee.

IMBER, Justice.

The appellant was convicted of rape and residential burglary. On appeal, he raises six point of error. We find no error and affirm.

At trial, the seventeen-year-old victim testified that on February 27, 1996, she was at home along with her brother, Christopher, who was eight. After the victim went to sleep with her brother late that night, she woke up to find a man holding a knife in her room. She described the individual as skinny and about six feet tall, with braided hair, and a large nose and lips. He wore a jacket or thick shirt with a blue and black square pattern. While the lights were not on in her room, she said that light came through her window because the blinds did not cover the entire window.

The victim testified that her attacker told her to get up, placed the knife around her neck, and took her into her brother's room, where he forced her to perform oral sex. He then made the victim get on the floor, ripped her panties, and attempted vaginal intercourse while he wore a condom. As she was being raped, she heard her brother yelling and pushing on the door, attempting to get into the room. When Christopher became quiet, the attacker ran out of the house.

The victim first called her boyfriend, Raymond Williams, who came over to the house. She then called the police sometime after 4:00 a.m. She told the police that she thought she might know who raped her from the way he looked and his voice. She explained that a man had been calling her over the phone prior to the rape; this man had explained to her during these phone conversations that he had obtained her number from Shelby Smith. This caller had described himself to her as light-skinned, with braided hair, similar in looks to two rappers, one named "Mystical" and another from the group "Criss Cross." The caller also told her that he wanted to come over to her house and that he lived at his sister's house, which was behind the victim's home. The victim told the caller that she had a boyfriend. The victim also told the caller when and where her mother worked. Eventually these phone calls became a problem, and the victim asked Shelby Smith to tell the caller to stop calling her. The victim testified that she was positive that the voice on the phone was the same as that of her assailant on the night of the rape.

On the day of the rape, the police went to the victim's house and showed her a photo spread of six suspects. The victim immediately identified picture number three, Travis, as her attacker. She said she was positive picture number three was her assailant. The next day, she went to the police station where she was shown the same photo spread again, picking number three. The victim and her brother also made in-court identifications of Travis. The jury convicted Travis of rape and burglary, sentencing him to eighty and twenty years imprisonment, respectively. Travis now brings the present appeal, raising six points of error.

1. Sufficiency of the Evidence.

Travis initially challenges the sufficiency of the evidence to support his convictions. However, Travis has failed to preserve this issue for appellate review. At the close of the State's case, defense counsel moved as follows:

In this case specifically, I guess, the State has failed to prove or to even show that there is any evidence to indicate that Phillip Travis specifically has engaged in any activity that would be constituted as rape and burglary in this matter.

The trial court denied this motion, and the defense later renewed at the end of their case:

Your honor, at this time I would like to renew my motion for directed verdict. Specifically that I stated, I don't believe the State's presented evidence to go to meet their burden on both counts of the residential burglary and the rape charge. Specifically I don't believe, other than some broad generalized statements made from [the victim], there's any other evidence at all connecting Phillip Travis to a crime.

Again, this motion was denied.

A directed-verdict motion based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Ark. R.Crim. P. 33.1. As we stated in Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), "a motion for a directed verdict in a criminal case must state the specific ground of the motion." This court has also explained that the proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for directed verdict. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). In Webb, supra, the following motions were held to be general and thus insufficient for appellate review of the sufficiency of the evidence:

Your Honor, the defendant Anthony Webb would move for a directed verdict of acquittal, stating that the State has not provided a prima facie case of capital murder against Anthony Webb and makes a motion that the Court enter a finding of a directed verdict of acquittal on the charges of capital murder both as to Aurora Carney and James Graves and further wants to reallege and readopt the arguments and the contention about the admissions as previously made.

Your Honor, at this time the defense would renew its motion for a directed verdict of acquittal indicating that the State has not provided prima facie evidence of the defendant's guilt of capital murder of either Aurora Carney or James Graves.

Likewise, the following motion and renewal was rejected as nonspecific so as to preserve sufficiency for appellate review in Lovelady, supra:

The defense would move that the charges against the defendant be dismissed on the basis that the State has failed to meet its burden of proof.

The State cites to Helton v. State, 320 Ark. 352, 896 S.W.2d 887 (1995), where the following motions were not sufficiently specific:

Make a motion at this time for a directed verdict on the charge of rape in that there's not been significant evidence which would lead to a conclusion by the jury that he's guilty of rape.

The defense renews its motions for a directed verdict on the grounds previously stated.

In the present case, Travis's directed verdict motions likewise failed to specifically identify the proof of the element of the crime that was alleged to be missing. We thus decline to reach the merits of Travis's challenge to the sufficiency of the evidence.

2. Special Judge.

Prior to the beginning of trial, the regular circuit judge was replaced by a special judge, and Travis's jury trial was conducted before the special judge. On appeal, Travis brings two challenges to the special judge. The first is that the regular circuit judge was peculiarly qualified to hear the case, and thus the special judge should have stepped down. The second is a challenge to the special judge's election.

On the day of trial, before the special judge, the following colloquy occurred after taking up a number of pre-trial matters:

SPECIAL JUDGE: Okay. All right. Is there anything else that is relevant that could potentially keep this case from proceeding?

PROSECUTOR: Not that I'm aware of.

DEFENSE COUNSEL: I think that since [the regular circuit judge] heard a couple of hearings on this matter and they're pretty important. I know now the State's raising some issues about specifically what information should and shouldn't be kept in and out.

SPECIAL JUDGE: I've reviewed the record in that, Mr. Thompson, and unless you're accusing Mrs. Ator of being untruthful now.

DEFENSE COUNSEL: No, that's not the point I'm trying to get at. The point is since [the regular circuit judge] has already heard several hearings in this matter, we would rather [the regular circuit judge] try the case.

SPECIAL JUDGE: And if you're making that motion, you, of course, have that right, and it's within the Court's discretion, and that's going to be denied for right now.

Travis stated that he would "rather" have the regular circuit judge hear the case. The special judge treated this expressed preference as a motion, and denied it. Travis cites to no authority for the proposition that he has the right to a particular trial judge throughout the course of the trial simply because that judge had conducted certain preliminary hearings. The record does not show that the regular judge was peculiarly qualified to try the case. See Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). Moreover, the special judge specifically stated that she had reviewed the record with regard to the pretrial rulings made by the regular judge. Based on this record, we cannot say that the special judge abused her discretion in refusing to step down.

With regard to Travis's constitutional attack on the special judge's election, the State responds that Travis has failed to preserve this issue for review. We agree. Travis argues that he was denied his right "to have a special judge elected according to the Constitution of Arkansas." For his sole citation to authority, he cites to Ark. Const. art. 7, § 21, governing the procedure for electing special judges, and our Administrative Order No. 1, which further prescribes the manner by which such judges shall be elected.

However, Travis failed to make a challenge to the special judge's election below. We have often held that this court will not address arguments, even constitutional arguments, raised for the first time on appeal. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). The elections of special judges, including the reasons for the regular judge's absence, are presumed to be valid. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992) (citing Titan Oil & Gas Inc. v. Shipley, 257...