Armer v. State

Steven Dean ARMER v. STATE of Arkansas

CR 96-15                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Appeal & error -- petition for review following court of
     appeals decision -- procedure followed. -- When the supreme
     court grants a petition for review following a decision by the
     court of appeals, the case is reviewed as though the appeal
     was originally filed with the supreme court. 

2.   Appeal & error -- trial court never ruled on points -- court
     will not address arguments not made at trial. -- The record
     did not show that the trial court had ruled on the specific
     questions raised on appeal; the court will not address
     arguments that were not made to the trial court; an appellant
     must obtain a ruling from the trial court in order to preserve
     a point on appeal.  

3.    Sentencing -- appellant waived any voir dire issue about
     punishment when he waived jury sentencing -- no reversal of
     sentence on grounds of irregularity in jury selection. --  
     Where appellant waived any issue about voir dire of the panel
     concerning punishment when he waived his right to have the
     jury decide punishment, asked the trial judge to set it, made
     no record of his reason for waiving jury sentencing, and
     apparently received a harsher sentence than anticipated, he
     could not then obtain a reversal of the sentence on the ground
     that there was some irregularity in the selection of the jury. 
     

     Petition for Review from the Court of Appeals; affirmed.
     Doug Norwood, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.
     
     Robert H. Dudley, Justice.
     A police officer saw a disabled car on the side of the road,
stopped, looked inside, and in plain view saw Steven Dean Armer
passed out in the back seat with about a thousand Valium tablets,
several syringes, a coke spoon, and a pipe.  Armer was charged with
possession of a controlled substance with intent to deliver and
with possession of drug paraphernalia.  At trial, the jury returned
a verdict of guilty on both counts.  A part of the bifurcated
sentencing procedure provides that after the jury finds a defendant
guilty, it shall hear additional evidence, if any, relevant to
sentencing and retire to determine the sentence.  However, the
defendant may waive jury sentencing, with the agreement of the
prosecuting attorney and the consent of the trial court, and let
the court impose sentence.  Ark. Code Ann.  16-97-101 (Supp.
1993).  After the jury returned its verdict of guilt, Armer's
counsel announced, "Your honor, we will waive jury sentencing and
let the court decide it."  The trial court inquired of Armer
personally, and in response, Armer affirmed that he understood he
had the right to have the jury set the punishment, but that he
wanted the trial court to decide punishment.  The trial court
sentenced Armer to four years in prison on each count, with the
sentences to run concurrently.     
     Armer appealed and argued that the trial court erroneously
refused to allow him to ask certain questions on voir dire.  The
court of appeals affirmed both convictions by a tie vote, three to
three.  Armer v. State, 51 Ark. App. 173, 912 S.W.2d 436 (1995). 
We granted a petition for review because of the tie vote.  When
this court grants a petition for review following a decision by the
court of appeals, we review the case as though the appeal was
originally filed with this court.  Maloy v. Stuttgart Memorial
Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994); Patterson v. State, 267
Ark. 436, 591 S.W.2d 356 (1979).  Upon such a review, we affirm the
convictions.
     During voir dire Armer's attorney referred to an off-the-
record discussion.  We have often condemned the practice of off-
the-record discussions because, just as in this case, it is
impossible for us to know the specific basis of the objection and
the exact ruling.  Phills v. State, 301 Ark. 265, 266, 783 S.W.2d 348, 349 (1990).  After referring to the off-the-record discussion,
the attorney said he understood that he could voir dire about the
penalty range for the two felonies.  The trial court responded that
either Armer's attorney or the prosecuting attorney could ask
whether members of the panel would feel uncomfortable sending this
person to the penitentiary for the maximum amount of ten years, but
added "that's all I'm going to permit on the issue of punishment." 
The prosecuting attorney objected and Armer's attorney said, "Later
on in the trial I would like to proffer into the record if you
don't want me to do it right now --."  The trial judge said,
"That's all I'm going to permit on this voir dire."  The trial
judge did not prevent Armer's counsel from making a proffer of the
questions at the time, but rather prevented him from asking
additional questions of the panel.  Much later, after Armer rested
his case, he proffered six specific questions.  Each of the
questions involved sentencing in some way, but they involved
subjects other than the penalty range, as Armer's attorney had
earlier indicated.  For example, one of the questions was:  "Should
drug addicts be treated differently than drug dealers?"
     Armer appeals and contends that the trial court erred in
unreasonably limiting him on voir dire.  The record does not show
that, when the trial court made its ruling, Armer had made specific
arguments about the six questions he later proffered, nor does it
show that he obtained rulings on the specific questions.  It is
settled that we will not address arguments that were not made to
the trial court, Campbell v. State, 319 Ark. 332, 891 S.W.2d 55
(1995), and it is settled that an appellant must obtain a ruling
from the trial court in order to preserve a point on appeal. 
Williams v. State, 289 Ark. 69, 71, 709 S.W.2d 80, 81 (1986).  Even
so, because of the trial judge's statements, we do not decide
whether Armer is procedurally barred by failing to make a timely
proffer and by failing to obtain a ruling.  Instead, we base our
holding on the fact that Armer waived any issue about voir dire of
the panel about punishment when he waived his right to have the
jury decide punishment, asked the trial judge to set it, and made
no record of his reason for waiving jury sentencing.  Indeed, the
reason may have been that indicated in oral argument, that the
trial judge did not ordinarily send first-time drug offenders to
prison.  We have no hesitancy in holding that an accused who waives
sentencing by the jury, makes no record of the reason for so doing,
asks the trial judge to set the sentence, and apparently receives
a harsher sentence than anticipated, cannot obtain a reversal of
the sentence on the ground that there was some irregularity in the
selection of the jury.  On the basis of the record, Armer's plight
is analogous to those cases in which a defendant pleads guilty, is
given a harsher sentence than he hoped for or expected, and then
seeks to withdraw his plea of guilty.  See Rawls v. State, 264 Ark.
954, 581 S.W.2d 311 (1979).  We have long refused to grant relief
in such cases. 
     Affirmed.