Newman v. State

David NEWMAN v. STATE of Arkansas

CR 96-685                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 17, 1997


1.   Jury -- jurors presumptively unbiased -- abuse of discretion
     required for reversal. -- Jurors are presumptively unbiased,
     and the burden is on the appellant to prove otherwise; a trial
     court's findings regarding juror bias will not be reversed
     absent an abuse of discretion.  

2.   Jury -- juror bias never shown although opportunity given --
     no abuse of discretion in failure to quash juror panel. --
     Where all of the jurors seated in the prior trial were
     excluded from the venire; the trial court allowed counsel to
     pursue the possibility of bias in voir dire; appellant failed
     to explore the possibility of juror bias with regard to their
     presence in the prior voir dire, except for asking one
     question about whether anyone had not been present the prior
     week; appellant failed to identify any particular jurors who
     were biased; and appellant also failed to present evidence
     that any jurors were biased by their presence during voir dire
     the previous week, the trial court did not abuse its
     discretion by failing to quash the jury panel.

3.   Evidence -- trial court may impose reasonable limits on cross-
     examination -- ruling will not be reversed absent abuse of
     discretion. -- A trial court has wide latitude to impose
     reasonable limits on cross-examination based upon concerns
     about confusion of issues or interrogation that is only
     marginally relevant; the supreme court will not reverse the
     trial court's ruling absent an abuse of discretion.  

4.   Evidence -- proffered testimony marginally relevant at best --
     no abuse of discretion in trial court's imposing reasonable
     limits on cross-examination. -- Where the proffered testimony
     concerning when and against whom the task force decided to
     file charges was, at best, only marginally relevant to
     appellant's case, the trial court did not abuse its wide
     discretion in imposing reasonable limits on cross-examination
     by excluding the proffered testimony. 

5.   Appeal & error -- record on appeal confined to that which is
     abstracted -- point affirmed without reaching merits. --
     Appellant's objection to a tape that was admitted into
     evidence was not addressed where appellant failed to abstract
     the transcript of the tape that was in the record or what was
     recorded on the tape; the record on appeal is confined to that
     which is abstracted, and failure to abstract a critical matter
     precludes the court from considering the issue on appeal; it
     was impossible for the appellate court to review the contents
     of the tape in order to determine whether the trial court
     abused its discretion; the point was affirmed without reaching
     the merits.

6.   Evidence -- admissibility of evidence left to trial court's
     sound discretion -- purpose of establishing chain of custody
     discussed. -- Evidentiary matters regarding the admissibility
     of evidence are left to the sound discretion of the trial
     court and rulings in this regard will not be reversed absent
     an abuse of discretion; the purpose of establishing a chain of
     custody is to prevent the introduction of evidence that is not
     authentic or that has been tampered with; however, the trial
     court must be satisfied within a reasonable probability that
     the evidence has not been tampered with; it is not necessary
     that the State eliminate every possibility of tampering.

7.   Evidence -- State established with reasonable probability that
     evidence had not been tampered with -- admission of exhibits
     not abuse of discretion. -- Appellant's argument that the
     trial court erred in admitting evidence over his objection
     based on chain of custody was without merit where the State
     established within a reasonable probability that the evidence
     had not been tampered with; the State established an adequate
     chain of custody, and the trial court did not abuse its
     discretion in admitting the State's exhibits.

8.   Appeal & error -- ruling must be obtained at trial to preserve
     arguments for appeal -- point summarily affirmed for failure
     to obtain ruling below. -- To preserve arguments for appeal,
     even constitutional ones, the appellant must obtain a ruling
     below; because appellant failed to obtain a ruling from the
     trial court on his objection to the bifurcated proceedings, he
     did not preserve that issue for appeal; the point was
     summarily affirmed for failure to obtain a ruling below.

9.   Appeal & error -- no authority cited for argument -- point
     affirmed. -- Appellant's contention that "he was denied due
     process and equal protection under state and federal
     constitutions because of the manner in which charges were
     filed against him," was made without reference to any
     convincing legal argument as to how the "manner in which
     charges were filed against him" deprived him of due process or
     equal protection of the laws; moreover, he failed to cite to
     any authority for this proposition; the supreme court affirmed
     for failure to cite to authority. 

10.  Evidence -- appellant's contention not supported by
     authorities cited -- trial court did not err in denying motion
     to suppress. -- Appellant's argument that the trial court
     erred in failing to suppress the evidence, as charges filed
     against him were based on the unsworn statement of a
     confidential informant, was without merit where the
     authorities cited by appellant did not support his contention;
     here, the officer applied for an arrest warrant under oath,
     stating that two confidential informants met with appellant
     and purchased marijuana and methamphetamine from him;
     supporting affidavits commonly contain hearsay statements from
     informants and Ark. R. Crim. P. 7.1 does not require that such
     statements be made under oath; the trial court did not err in
     denying the motion to suppress.


     Appeal from Randolph Circuit Court; Harold Erwin, Judge;
affirmed.
     Larry J. Steele, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.
     Annabelle Clinton Imber, Justice. 
     This is a criminal case where the appellant, David Newman, was
convicted of the delivery of controlled substances.  Newman relies
upon six points of error in this appeal.  We affirm for the reasons
stated herein.
     On December 1, 1994, Sheriff Richard Rapert, working for the
Drug Task Force of the Third Judicial District, prepared two
confidential informants, Mike Sanders and Patricia Williams, to
make a controlled drug buy from the appellant, David Newman. 
Williams was Newman's ex-wife.  Rapert wired them with body
microphones in order to make a tape recording of their
conversations, and gave them purchase money.  Rapert also searched
them for the presence of drugs.  Joe Grooms, a marshall in Maynard
and Sanders's half-brother, aided Rapert by searching Williams's
vehicle for drugs.
     Williams and Sanders drove to Newman's house, followed by
Rapert and Grooms.  No one was at Newman's residence.  They then
proceeded to Donald Stacy's house.  Newman was there and Williams
went inside to initiate the purchase.  Newman came outside and met
Sanders.  Sanders asked Newman "if he had some smoke."  Newman
explained that he had methamphetamine and marijuana available. 
Sanders ultimately bought a quantity of marijuana and
methamphetamine for a total of $75.  Rapert later met with the
informants and Williams handed him two bags containing
methamphetamine and marijuana.
     The conversation between Newman and Sanders was recorded on
tape.  Rapert and Grooms, who both knew Newman, testified that they
recognized the voice on the tape as Newman's.  The testimony at
trial conflicted as to where the actual transaction took place. 
Sanders testified that the sale took place outside of Stacy's
residence, while Williams said that they drove back to Newman's
house to make the sale.  On re-direct, Williams conceded that she
did not know where the sale took place.  
     David Newman was tried and convicted of delivery of
methamphetamine and delivery of marijuana.  The jury imposed
sentences of forty years and ten years, respectively, along with
$50,000 in fines.  On appeal, Newman raises six points of error.  
                 1.  Disqualification of jurors.
     Newman's first argument is that the trial court erred in
failing to disqualify prospective jurors. The week before his
trial, Newman was tried in another drug case involving delivery of
methamphetamine.  This prior trial resulted in a mistrial due to
evidence that was improperly admitted.  Nonetheless, the trial
court utilized the same jury panel to select jurors in both trials,
excluding those thirteen jurors that were seated in the prior trial
from the panel in the present case.  Of those present in the panel,
only two prospective jurors had not been a part of the panel the
prior week.  
     Newman moved to quash the panel, arguing that they were
tainted by their knowledge that Newman had been charged in another
matter and by their voir dire the previous week.  The trial court
denied the motion and voir dire of the panel proceeded.
     Jurors are presumptively unbiased and the burden is on the
appellant to prove otherwise.  Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).  Moreover, a trial court's findings regarding
juror bias will not be reversed absent an abuse of discretion.  Id.
     In Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995),
members of the jury panel had been through voir dire during the
separate trial of one of the appellants' codefendants.  At the
trial the appellants moved to quash the panel arguing that the
entire panel had been tainted through their exposure to the prior
voir dire.  The trial court denied the motion and this court
affirmed.  
     While the Goins court noted that defendants could exclude
those jurors who served on jury trials of co-defendants, "the right
has not been extended to exclude potential jurors who have not
actually served as jurors in a prior trial involving the same
offense."  Id.  (citing McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994)).  It was undisputed that all of the jurors who
actually sat in the prior trial were excluded from the venire. 
Furthermore, the trial court allowed the parties to pursue the
possibility of bias in voir dire, and at no time did the appellants
challenge a juror for their presence during voir dire in the co-
defendant's case.  Moreover, on appeal, the appellants failed to
identify a juror who should not have been seated.  In sum, the
appellants failed to meet their burden to prove that the jury was
biased and the Goins court concluded that the trial court did not
abuse its discretion in refusing to strike the jury panel.
     In the present case, all of the jurors seated in the prior
trial were excluded from the venire, and the trial court allowed
counsel to pursue the possibility of bias in voir dire.  Newman
failed to explore the possibility of juror bias with regard to
their presence in the prior voir dire, except for asking one
question about whether anyone had not been present the prior week. 
Furthermore, Newman failed to identify any particular jurors who
were biased.  Newman also failed to present evidence that any
jurors were biased by their presence during voir dire the previous
week.  We find that the trial court did not abuse its discretion by
failing to quash the jury panel.
                 2.  Scope of cross-examination.
      Newman's second argument is that the trial court erred in
limiting his cross-examination of Marvin Poe, coordinator of the
Third Judicial Drug Task Force.  At trial, the State called Marvin
Poe, the coordinator of the Third Judicial Task Force, to establish
a chain of custody for the drug evidence.  Defense counsel
attempted to cross-examine Poe concerning the lack of drug arrests
of professionals and the "holding" of drug cases until election
time for county officials.  However, the trial court ruled that
"I'm not going to sit up here and listen to stuff that's just a
general browbeating of the drug task force unless you can relate it
to this man's case."  
     On appeal, Newman argues that the evidence concerned the
motive and credibility of drug task force members, and that
"[p]ursuant to Rules 401, 402 and 403 of the Arkansas Rules of
Evidence, this evidence was more probative than prejudicial and
should have been admitted."  However, a trial court has wide
latitude to impose reasonable limits on cross-examination based
upon concerns about confusion of issues or interrogation that is
only marginally relevant.  Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996).  This court will not reverse the trial court's ruling
absent an abuse of discretion.  Id; Biggers v. State, 317 Ark. 414,
878 S.W.2d 717 (1994).
     Here, Poe's proffered testimony concerned when and against
whom the task force decided to file charges.  Poe testified that he
never waited until a particular time to file cases, but that "I
don't remember, something may have been said to the effect, `Can
you file some charges now' or something, you know, I don't know,
but it's possible."  Poe also testified that he had never filed any
cases against doctors or lawyers, but that he had two cases pending
against farmers.  
     Clearly, the relevance of this testimony to Newman's case was
marginal at best.  While Newman makes the vague assertion that this
testimony was relevant on motive and credibility, it cannot be said
that the trial court abused its wide discretion in imposing
reasonable limits on cross-examination by excluding the proffered
testimony.  Accordingly, we affirm as to this point.
              3.  Admissibility of tape recording.
     Newman's third argument is that the trial court erred in
admitting a tape of the alleged sale upon which these charges are
based, which tape also contained statements concerning other sales
that were the basis of other charges.  For this point, Newman
argues that the trial court abused its discretion in admitting the
tape recording of the conversation between him and Sanders. 
According to Newman, the probative value of the tape was
substantially outweighed by the danger of unfair prejudice under
Ark. R. Evid. 403, given that the tape made references to other
drug transactions.  
     While a transcript of the tape recording is found in the
record, Newman has failed to abstract the transcript or what was
recorded on the tape.  The record on appeal is confined to that
which is abstracted, and failure to abstract a critical matter
precludes this court from considering the issue on appeal.  Edwards
v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).  Thus, it is
impossible for this court to review the contents of the tape in
order to determine whether the trial court abused its discretion. 
We accordingly affirm without reaching the merits.
                4.  Adequacy of chain of custody.
     Newman's fourth argument on appeal is that the trial court
erred in admitting evidence over his objection based on chain of
custody.  Newman objected to the introduction of State's Exhibits
1, 1A, 1B, 1C, 1D, and 1E based on chain of custody, and now argues
on appeal that the trial court erroneously overruled his objection.
     Richard Rapert testified that he recognized State's Exhibit 1D
and 1E as the two bags of marijuana and methamphetamine that he
received from Williams following the controlled buy.  Rapert
further stated that he placed State's Exhibit 1D into an envelope,
State's Exhibit 1B, and that he placed State's Exhibit 1E into
another envelope, State's Exhibit 1C.  Then he placed the two
smaller envelopes into a larger envelope, State's Exhibit 1A. 
Attached to State's Exhibit 1A was State's Exhibit 1, a state crime
laboratory submission sheet that had Rapert's handwriting on it.  
     Rapert further explained that Marvin Poe opened State's
Exhibit 1A a week prior to trial in order to determine if the
evidence numbers on the smaller envelopes matched the numbers found
on the larger envelope.  He said that Poe did this in his presence. 
The smaller envelopes containing the contraband, State's Exhibits
1B and 1C, were not opened at the time.
     Michael Stage, a chemist with the state crime lab, testified
that he recognized the exhibits as those upon which he performed a
chemical analysis.  His tests showed that State's Exhibit 1D was a
baggie containing 4.4 grams of marijuana, while State's Exhibit 1E
was a ziplock bag containing .15 grams of methamphetamine
hydrochloride.  Stage further testified that after he performed the
chemical analysis, he resealed the bags and placed them back inside
their respective envelopes for resubmission to the evidence room at
the state crime lab.  He recognized the seal that he placed on the
outside envelope and the case number and date he wrote on it.
     Stage also testified that he was present when Poe opened
State's Exhibit 1A earlier in the week.  The following colloquy
then occurred between defense counsel and Stage:
Q:  There were some items actually missing from that bag
that were supposed to be in that bag [State's Exhibit
1A], weren't there?

A:  At the time there was, yes. 

Q:  Did you make a list of the items that you found in
the bag at the time that it was opened?  Did you
inventory the bag, so to speak, this past week when it
was opened?

A:  I didn't make any notes.  I remember what was
missing, yes.

                         * * *

Q:  And you have no idea where this bag has gone this
past week since, since you opened it.

A:  No.

Q:  So really, it's your testimony the seal on the, on
the bag itself which contained the other evidence, items
of evidence, was broken before court today by yourself.

A:  Are we talking about the right case?  Or was that
another?

Q:  I'm, I'm talking about 1A.

A:  I believe there was another case that this happened
to.

[BENCH CONFERENCE]

STAGE CONTINUING:  It was not this envelope that was in
question that day.

Q:  But 1A is the envelope that, that was previously
opened in the Judge's chambers, is that correct?

A:  No.

Q:  That's not the envelope?

A:  This one was opened, yes. But this was not the one in
question.

     On redirect examination, Stage explained that State's Exhibit
1A had been opened while looking for evidence used in another case,
and that the evidence was not found in the envelope.  
     Marvin Poe then testified that he recognized State's Exhibit
1A, and that he had opened it the prior week to see if the evidence
numbers found on State's Exhibit 1B and 1C matched the laboratory
control number found on the attached laboratory submission sheet,
State's Exhibit 1.  He then placed the smaller envelopes back in
the larger envelope, and he signed and dated it to reflect when and
where he opened it.  He returned State's Exhibit 1A to the Drug
Task Force evidence locker in Newport, Arkansas.  The day before
trial, Poe retrieved the bag from the evidence locker and placed it
with his secretary (and wife), Judy Poe, to be picked up hours
later by Rapert.
     Finally, Judy Poe testified that she recognized and received
State's Exhibits 1 and 1A from Michael Poe and that she passed them
along to Rapert the day before trial.  Rapert ultimately testified
that he received State's Exhibit 1A from Judy Poe the day before
trial at the Drug Task Force office.
     Evidentiary matters regarding the admissibility of evidence
are left to the sound discretion of the trial court and rulings in
this regard will not be reversed absent an abuse of discretion.  
Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Harris v. State,
322 Ark. 167, 907 S.W.2d 729 (1995).  This court has consistently
stated that the purpose of establishing a chain of custody is to
prevent the introduction of evidence that is not authentic or that
has been tampered with.  Id.  However, the trial court must be
satisfied within a reasonable probability that the evidence has not
been tampered with; it is not necessary that the State eliminate
every possibility of tampering.  Id.
     In the present case, we conclude that the State established
within a reasonable probability that the evidence had not been
tampered with.  While the somewhat confusing testimony of Stage at
first established that items were missing from State's Exhibit 1A,
he later clarified that he was referring to another matter. 
State's Exhibits 1B and 1C, the envelopes containing the
contraband, were not themselves opened when Poe examined State's
Exhibit 1A the week prior to trial.  Moreover, Rapert ultimately
confirmed that State's Exhibit's 1D and 1E were the substances that
he received from Patricia Williams.  We therefore conclude that the
State established an adequate chain of custody and that the trial
court did not abuse its discretion in admitting the State's
exhibits.
              5. AMCI 2d 9401-02 Jury Instructions.
     Newman's fifth argument is that the trial court erred in
instructing the jury during the sentencing phase that he would do
one-sixth of the time received.  During the sentencing phase of
trial, the trial court instructed the jury with regard to the range
of possible punishment and Newman's possible parole eligibility. 
See AMCI2d 9401-02.  Newman objected to the bifurcated nature of
the proceedings, arguing that informing the jury of possible parole
eligibility denied him "due process of law and equal protection
because it preconceives an idea of what is going to happen." 
Newman also proffered jury instructions that combined the guilt and
sentencing determinations.
     Following Newman's constitutional objection to the bifurcated
proceedings, the trial court did not issue a ruling.  Newman
proffered his proposed jury instructions, after which the trial
court inquired, "Anything else?"  Then, Newman moved for a directed
verdict, challenging the sufficiency of the State's proof on the
element of delivery.  After this motion, the trial court simply
responded, "Uh-huh," and proceeded to instruct the jury.  
     To preserve arguments for appeal, even constitutional ones,
the appellant must obtain a ruling. Danzie v. State, 326 Ark. 34,
930 S.W.2d 310 (1996); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881
(1992); State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992). 
Because Newman failed to obtain a ruling from the trial court on
his objection to the bifurcated proceedings, he has not preserved
that issue for appeal.  Thus, this court must summarily affirm on
this point for failure to obtain a ruling below.
                 6.  Validity of arrest warrant.  
     Newman's final argument is that the trial court erred in
failing to suppress the evidence as charges filed against him were
based on the unsworn statement of a confidential informant.  For
this point, Newman challenges the validity of the arrest warrant
issued against him, because its supporting affidavit executed by
Rapert contained unsworn statements made by confidential
informants.
     Newman first contends that "he was denied due process and
equal protection under state and federal constitutions because of
the manner in which charges were filed against him."  However,
Newman fails to explain with any convincing legal argument how the
"manner in which charges were filed against him" deprived him of
due process or equal protection of the laws.  Moreover, he fails to
cite to any authority for this proposition.  Thus, this court must
affirm for failure to cite to authority.  See Williams v. State,
325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark.
168, 919 S.W.2d 192 (1996).
     Newman further contends that an arrest warrant's supporting
affidavit containing statements from confidential informants must
also include sworn statements from those informants.  He relies on
Ark. R. Crim. P. 7.1, governing the basis for the issuance of an
arrest warrant, and Davis v. State, 293 Ark. 472, 739 S.W.2d 150
(1987), where this court observed inter alia that the State has the
burden of showing that an arrest warrant's supporting affidavit is
in compliance with the law.
     Simply put, these authorities do not support Newman's
contention.  Here, Rapert applied for an arrest warrant under oath,
stating that two confidential informants met with Newman and
purchased marijuana and methamphetamine from him.  Supporting
affidavits commonly contain hearsay statements from informants and
Rule 7.1 simply does not require that such statements be made under
oath.  We accordingly find that the trial court did not err in
denying the motion to suppress, and affirm as to this point.
     Affirmed.