McGhee v. State

Monroe McGHEE v. STATE of Arkansas

CR 97-195                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 2, 1997


1.   Appeal & error -- defendant may not agree with trial court's ruling and
     attack it on appeal. -- A defendant may not agree with a ruling
     by the trial court and then attack that ruling on appeal.

2.   Appeal & error -- invited-error doctrine -- appellant waived appellate
     challenge to denial of motions for continuance and severance. -- Under
     the doctrine of invited error, one who is responsible for
     error cannot be heard to complain of that for which he was
     responsible; where appellant chose to proceed to trial as
     scheduled, knowing that defense counsel wanted more time to
     prepare his defense, and further chose to be tried on all
     charges at once, without delay, with the knowledge and
     understanding that he was facing serious felony charges and
     that he could receive a sentence of life imprisonment, the
     supreme court concluded that appellant had waived any
     challenge on appeal to the trial court's denial of his motions
     for continuance and severance of offenses. 

3.   Appeal & error -- failure to obtain ruling -- fatal to claim. -- Where
     the abstract did not reveal that a ruling was obtained from
     the trial court on appellant's motion to suppress physical
     evidence, the supreme court would not address the issue on
     appeal; the burden of providing a record sufficient to
     demonstrate that reversible error occurred is upon the
     appellant; without the trial court's ruling, the supreme court
     had no basis for a decision and, thus, was precluded from a
     review of the issue; appellant's failure to obtain a ruling on
     his motion to suppress was fatal to this claim.

4.   Criminal law -- simultaneous possession of drugs and firearms -- State not
     required to prove involvement in criminal gang activity -- trial court did
     not err in denying directed-verdict motion. -- The simultaneous-
     possession statute, Ark. Code Ann.  5-74-106 (Repl. 1993),
     not only serves the purpose of deterring organized gang and
     criminal activities but also serves the broader purpose of
     curtailing any person's use of a firearm when he or she is
     involved in the illegal possession or trafficking of
     controlled substances; thus, the supreme court concluded that
     the trial court did not err in denying appellant's directed-
     verdict motion where appellant had argued that it was
     necessary for the State to produce evidence of gang-related
     activity for every offense contained within the statutory
     subchapter known as the "Arkansas Criminal Gang, Organization,
     or Enterprise Act."

5.   Appeal & error -- arguments raised for first time on appeal not addressed.
     -- The supreme court will not address arguments, even
     constitutional arguments, raised for the first time on appeal.

     Appeal from Mississippi Circuit Court, Chickasawba District;
Samuel Turner, Jr., Judge; affirmed.
     Steve Inboden, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Senior Asst.
Att'y Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant Monroe McGhee appeals the judgment of the
Mississippi County Circuit Court, Chickasawba District, convicting
him of possession of a controlled substance (cocaine) with intent
to deliver, first-degree battery, simultaneous possession of drugs
and firearms, and being a felon in possession of a firearm.  The
trial court sentenced Appellant to a total of forty years'
imprisonment.  In addition, the trial court revoked Appellant's
probation in a prior case and sentenced him to a concurrent term of
ten years' imprisonment.  Our jurisdiction of this appeal is
pursuant to Ark. Sup. Ct. R. 1-2(a)(2).  Appellant raises five
points for reversal, none of which has merit.
     The record reveals the following facts.  On February 14, 1996,
Appellant shot Clifton Robinson in the throat, apparently in
retaliation for shots being fired approximately one hour earlier at
a vehicle in which Appellant's cousin was riding.  Persons present
at the scene informed police officers that Appellant was the person
who shot Robinson.  Robinson later confirmed that it was Appellant
who had shot him.  Officers arrested Appellant the following day
and recovered a gun from him and numerous bags of marijuana and
crack cocaine from his pockets. 
        Motions for Continuance and Severance of Offenses
     Appellant's first two points for reversal are that the trial
court erred in denying defense counsel's motions for a continuance
and for severance of the offenses.  Both of the motions were made
by defense counsel during a pretrial hearing, and both were
objected to by Appellant.  
     Defense counsel requested a continuance on the grounds that he
had only recently been appointed to handle Appellant's case and he
wanted more time to prepare for trial.  Counsel indicated that
Appellant had given him a list of seven or eight witnesses and that
he needed more time to interview them.  Appellant informed the
trial court that he was ready for trial and did not want a
continuance.  He stated that he had been in jail awaiting trial for
nine months and that he did not want to wait any longer.  He stated
that he was pretty sure that he could explain his case to the jury
in about one and one-half hours, and that if he was convicted,
"just let it lie like that."  In response to inquiry by the trial
court, Appellant stated that he was aware of the seriousness of the
charges against him and that he knew he could receive a sentence of
life imprisonment.  He stated that he was willing to take that
chance and proceed to trial.  He also indicated that he really only
needed three of the witnesses that he had listed for defense
counsel.  At that point in the discussion, defense counsel
indicated that he could have the case ready to go as scheduled, and
that he had a copy of the State's file and he understood the
State's theory of the case. 
     As to the severance motion, defense counsel moved to sever the
charge of first-degree battery, pertaining to the shooting of
Robinson, from the remaining charges, which resulted from
Appellant's arrest the day after the shooting.  Appellant again
expressed his desire to proceed to trial as scheduled on all
charges.  He stated that the reason he was charged with the
subsequent offenses was because of the shooting of Robinson, and
that he wanted to have all the charges tried at the same time.  In
response to questions from the trial court, Appellant stated that
he understood that being tried on five or six different charges at
once may prejudice his case.  He stated further that he understood
that his punishment may be harsher, even if he was only convicted
of one charge, because the jury would be aware of the other
charges.
     The trial court denied the motion for continuance on the
ground that it was Appellant's right to have a trial and that he
had made the decision to proceed with the trial knowing that his
counsel wished for more time to prepare.  Likewise, the trial court
denied the motion to sever on the ground that Appellant wanted all
the charges tried at the same time and was willing to risk any
prejudice to his case.  Appellant now argues that the trial court
erred in denying both motions.  We disagree.  
     We adhere to the familiar principle that a defendant may not
agree with a ruling by the trial court and then attack that ruling
on appeal.  Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996);
Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996).  Under the
doctrine of invited error, one who is responsible for error cannot
be heard to complain of that for which he was responsible.  Morgan
v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).  Appellant chose to
proceed to trial as scheduled, knowing that defense counsel wanted
more time to prepare his defense.  Appellant further chose to have
all the offenses tried at once, after being warned of the potential
consequences of being tried on multiple charges simultaneously. 
Appellant's decision to be tried on all the charges at once,
without delay, was thus made with the knowledge and understanding
that he was facing serious felony charges and that he could receive
a sentence of life imprisonment.  Hence, we conclude that Appellant
has waived any challenge on appeal to the trial court's denial of
both motions. 
                     Suppression of Evidence
     For his third point for reversal, Appellant argues that the
trial court erred in denying his motion to suppress physical
evidence, which he alleged was gathered as a result of the issuance
of an invalid arrest warrant.  He argues further that officers
lacked the authority to enter Fred Gay's residence to arrest
Appellant.  We do not address the merits of these arguments, as
Appellant has failed to demonstrate that he obtained a ruling from
the trial court on his motion to suppress.  
     Where the abstract does not reveal that a ruling was obtained
from the trial court, this court will not address the issue on
appeal.  See Bayless v. State, 326 Ark. 869, 935 S.W.2d 534 (1996). 
The burden of providing a record sufficient to demonstrate that
reversible error occurred is upon the appellant.  Laudan v. State,
322 Ark. 58, 907 S.W.2d 131 (1995).  Without the trial court's
ruling, this court has no basis for a decision and is, thus,
precluded from a review of the issue.  See Hood v. State, 329 Ark.
21, 947 S.W.2d 328 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992). 
Appellant's failure to obtain a ruling on his motion to suppress is
fatal to this claim.
          Simultaneous Possession of Drugs and Firearms
     Appellant's fourth and fifth points for reversal pertain to
his conviction for the charge of simultaneous possession of drugs
and a firearm.  Arkansas Code Annotated  5-74-106(a)(1) (Repl.
1993) provides that a person who commits a felony violation of
 5-64-401 (controlled substances) while in possession of a firearm
is guilty of a Class Y felony.  Appellant first argues that there
was insufficient evidence to convict him of this crime because the
State failed to produce evidence of gang-related activity.  He
argues that because the offense is situated within the subchapter
known as the "Arkansas Criminal Gang, Organization, or Enterprise
Act," it is necessary for the State to produce evidence of gang-
related activity for every offense contained within that
subchapter.  We recently disposed of this argument in State v.
Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997).  
     In Zawodniak, the defendant moved for a directed verdict on
the ground that the State had failed to prove that he was involved
in criminal gang activity.  The trial court agreed and granted the
motion.  On appeal, we held that the defendant's and the trial
court's reading of section 5-74-106 was contorted and failed to
give the language of that statute its plain meaning.  We stated
that this court is very hesitant to interpret a legislative act in
a manner contrary to its express language, where there is no
drafting error or omission that may have circumvented the
legislature's intent.  We held further that the statute not only
serves the purpose of deterring organized gang and criminal
activities, but also serves the broader purpose of curtailing any
person's use of a firearm when he or she is involved in the illegal
possession or trafficking of controlled substances.  Accordingly,
we conclude that the trial court did not err in denying Appellant's
motion for directed verdict on this charge.  
     Appellant's second argument is that section 5-74-106 is
unconstitutionally vague and is therefore void.  We do not reach
the merits of this contention, as Appellant's abstract does not
demonstrate that the argument was raised below.  This court has
repeatedly held that it will not address arguments, even
constitutional arguments, raised for the first time on appeal. 
Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v.
State, 327 Ark. 30, 937 S.W.2d 162 (1997); Mayo v. State, 324 Ark.
328, 920 S.W.2d 843 (1996).  
     Affirmed.