Court of Appeals: Weekly Wins for the State

30 09 2011

Only five criminal appeals were decided this week in the Arkansas Court of Appeals.

In Henry Hampton, Hampton entered a conditional guilty plea and filed an appeal of the circuit court’s denial of the motion to suppress.  Issue involved obtaining a search warrant where officers conducted two controlled buys at Hampton’s residence and officers monitored the residence throughout the buys.  Challenge was made on the failure to establish the reliability of the confidential information; however, the Court found that where the officers can attest to their personal observations of the buy there is no need for the reliability of the informant to be established.

Patrick Davis was charged with theft of property after the victim called 911, police pulled over the described vehicle, the items were located in the vehicle, and the victim identified the man and items.  First, a sufficiency of the evidence challenge that Davis was the thief and to the finding that the value of the property was over $500.  The victim identified Davis and he was found with all of the stolen items so that was clearly a non-issue.  Also, the victim testified as to how much he paid for the pool cues and bag (which appears he takes it very very seriously or got ripped off), which provides sufficient evidence of the value.  The other issues were rejected as either harmless (surprising I know) or for failure to object at trial.

Shena Howard had one good lesson in it.  I’ll go ahead and make the tip of the week coming from this week.  This is an easy one.  Failure to request an admonition of the jury negates a mistrial motion.  Weaver v. State, 324 Ark. 290, 300, 920 S.W.2d 491, 496 (1996).  Defense counsel made an objection at sentencing and asked for a mistrial; however, counsel did not ask for an admonition of the jury.  Therefore, the Court of Appeals did not address the motion for a mistrial.

William Phillips was my case and it was a simple sufficiency challenge.  Phillips got 28 years on second-degree murder and didn’t want to risk a new trial and a greater sentence so we only appealed the sufficiency of the evidence. 

Cameka Sullivan also had an interesting ruling in it.  Sullivan was charged with permitting the abuse of a minor because she knew about her boyfriend’s abuse of her 2 year old but did nothing about it.  The abuse was not alleged to be sexual; however, Sullivan was required to register as a sex offender.  Sullivan challenged the order requiring her to register because it was not a sex offense.  The Court noted that permitting the abuse of a minor is listed under the definition of “sex offense.”

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Tip of the Week: Argue Cumulative Error to the Trial Court

14 09 2011

Often on appeal attorneys want to rebut the assertions of harmless error and failure to show prejudice by listing all of the trial court’s errors and claiming that as a whole the trial was unfair and the defendant was prejudiced.  It is a common sense argument and one that can be successful.  However, while attorneys object to each and everyone one of the errors at trial individually, they fail to object to the cumulative effect of the errors and get a ruling from the trial court.  Without an objection to the cumulative effect of the errors the argument cannot be advanced on appeal.  See Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).





Tip of the Week: Speak Fast or Forever Hold Your Objection

7 09 2011

As an appellate attorney it is helpful to constantly remind the trial attorneys how to properly preserve arguments so the courts of appeal will consider them.  The first tip should be known to all but gets even seasoned attorneys coming and going.

To preserve a point for review, a proper objection must be made at the first opportunity after the matter to which the objection has been made occurs.  Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990) is often cited for the contemporaneous objection rule and for good reason.  In Asher, the State was asking the appellant’s wife if her bedroom had a fake wall with firearms located behind the wall.  The first question asked was if the wife was in possession of stolen guns in a fake wall in her home.  She answered “not to my knowledge.”  The State then asked her whether she had knowledge of the fake wall with guns behind it.  She answered “no.”  After the second question and answer trial counsel properly objected to the questions and asked for a mistrial.  The judge, and Arkansas Supreme Court, found that the proper time to object was BEFORE the first question was answered.

Objections need to come out immediately.  Therefore, if you miss it the first time around you have just waived your right to appeal the objectionable question or statement.  So for all of us appellate attorneys out there:  be quick and be correct!  (or we’ll mock you behind your back)