Whitney v. State
| Decision Date | 07 October 1996 |
| Docket Number | No. CR,CR |
| Citation | 326 Ark. 206,930 S.W.2d 343 |
| Parties | Donnie WHITNEY, Appellant, v. STATE of Arkansas, Appellee. 96-577. |
| Court | Arkansas Supreme Court |
Honey & Honey, Prescott, for Appellant.
Brad Newman, Asst. Atty. General, Little Rock, for Appellee.
Donnie Whitney, the appellant, was charged by information in Lafayette Circuit Court as an habitual offender with three counts of Delivery of a Controlled Substance (i.e., cocaine). Ark.Code Ann. § 5-64-401(a) (Supp.1995). He was tried, and convicted, on Count I of the information and sentenced to a prison term of eighty years and a fine of $50,000. Ark.Code Ann. §§ 5-64-401(a)(1)(i) (Supp.1995) and 5-64-408(a)(Repl.1993).
Mr. Whitney maintains his conviction should be reversed because (i) the prosecutor, during the closing argument at the penalty phase of trial, commented on Mr. Whitney's failure to testify during the guilt-innocence phase; (ii) the prosecutor made other improper remarks during the closing argument at the guilt-innocence phase; (iii) the sentence is excessive; and (iv) the evidence was insufficient to support the conviction. We affirm the conviction and sentence on those points as none of them has been preserved for appeal. We also reject Mr. Whitney's argument that the Trial Court improperly limited the testimony of mitigation witnesses presented by Mr. Whitney in the sentencing phase of the trial.
Testimony revealed that an undercover state police officer and an informant were approached by Mr. Whitney as they sat in a vehicle and that they purchased cocaine from Mr. Whitney for $1000. At the close of the State's case, counsel moved for a directed verdict, stating only that the evidence was "not sufficient ... to sustain a conviction of a violation of a controlled substance, namely cocaine." After the defense rested, the motion was renewed, using the same general terminology. A general directed-verdict motion stating only that the evidence is insufficient does not preserve a sufficiency-of-the-evidence issue for appeal. Ark. R.Crim. P. 33.1; Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
During the closing argument in the guilt-innocence phase of the trial, the prosecutor discussed the impact of drug-related crimes on society. The prosecutor linked rising taxes and insurance premiums to drug-related criminal activity, and he told the jury that it would be affected by the nation's drug problem "sooner or later" and that Mr. Whitney's trial was an "opportunity today to do something about this problem in Lafayette County." Mr. Whitney argues those remarks were improper because they accused him of crimes and other conduct not charged, blamed him for the ills of society, and personalized the argument with the jury. There was neither an objection nor a motion for a mistrial.
Mr. Whitney also asks us to reverse his conviction because the Prosecutor, during closing argument in the sentencing phase, drew attention to the fact that Mr. Whitney did not call witnesses or produce evidence during the guilt-innocence phase of the trial, thus calling attention to the fact that he did not testify. There was, again, no objection or motion for mistrial.
For an allegation of error to be sustained as the result of a trial error, there must have been a timely and accurate objection. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); Jones v. State, 248 Ark. 694, 453 S.W.2d 403 (1970); Wallace v. State, 53 Ark.App. 199, 202, 920 S.W.2d 864, 866 (1996). See also Floyd v. State, 278 Ark. 86, 89, 643 S.W.2d 555 (1982)( defendant "cannot complain for lack of a mistrial on appeal when none was requested").
Mr. Whitney concedes he did not move for mistrial in response to the Prosecutor's comments. He argues, however, that we should view defense counsel's inaction as ineffective assistance of counsel and reverse on that basis. He asks us to remand the case so that the Trial Court may consider whether his counsel was ineffective. As authority for his request that we remand the case, Mr. Whitney cites Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). In that case the appeal was from a trial court's denial of postconviction relief, not a direct appeal of the conviction.
Mr. Whitney is free to move for postconviction relief under Ark. R.Crim. Pro. 37 after his direct appeal to this Court is resolved. He may not raise his ineffective-assistance-of-counsel argument in this direct appeal because it was not an issue...
To continue reading
Request your trial
-
Parmley v. Norris
...not raised in the trial court may only be brought under Arkansas Criminal Procedure Rule 37, not on direct appeal. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343, 345 (1996). 6. The Court appears to make this choice based solely on the fact that the unusual gap exists. The logical result of......
-
Paulino v. QHG of Springdale, Inc.
... ... Furthermore, they claimed that the federal HQIA did not immunize credentialing decisions, because it carved out an exception for state-law malpractice claims based on a provider's negligent treatment or care. They maintained that they could prove causation, because the proximate ... ...
- McQuay v. Guntharp
-
Ladwig v. State, CR
...even though present during the sentencing phase, failed to voice to the Trial Court his objection to the sentence. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996); Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996). A defendant who makes no objection at the time sentence is imposed h......