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Robertson v. State

Court of Appeals of Arkansas, Division I

January 24, 2018



          Scholl Law Firm, P.L.L.C., by: Scott A. Scholl, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, Chief Judge

         Bobby Lee Robertson was convicted by a jury on four counts of delivery of a Schedule I or Schedule II controlled substance that is not methamphetamine or cocaine, Ark. Code Ann. § 5-64-426 (Repl. 2016), and was sentenced to an aggregate of 336 months' imprisonment in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, his attorney has filed a no-merit brief and a motion to withdraw, asserting that there is no issue of arguable merit for an appeal. Counsel explains in his brief why none of the trial court's rulings that were adverse to Robertson constitute grounds for appeal. Robertson has filed pro se points for reversal, and the State has filed a brief responding to his points.

         We affirm Robertson's convictions and grant counsel's motion to withdraw. Our discussion begins with counsel's no-merit appeal.

         I. Counsel's No-Merit Appeal

         A. Motions for Directed Verdict

         Counsel addresses the denial of his motions for a directed verdict in which he argued that the State had "failed to make a prima facie case that the delivery occurred [or] that there was an actual transaction between my client and the confidential informant." Counsel summarizes the evidence as follows, acknowledging that the evidence is viewed on appeal in the light most favorable to the conviction. Flemister v. State, 2016 Ark.App. 180, at 1, 487 S.W.3d 386, 392.

         The alleged drug transactions were recorded by a hidden camera carried by a confidential informant, Shundra Williams, and the videos were shown at trial. Williams testified that she acted as the confidential informant because criminal charges were pending against her, and she would be "concerned for her children" if she were to face jail time. She acknowledged that someone viewing the video might not be able to see the actual exchange of money or drugs and that on two occasions the video "was deactivated" before she returned to Detective Bobby Linder's vehicle with the drugs. She stated that the drug transactions indeed occurred; that detectives searched her before her meetings with Robertson; that she did nothing "sinister" after the recording cut off; and that she did not intentionally turn off the camera, or know that it was cut off, before she got back to the vehicle. She testified that the video showed "what was in her hand" and that she gave those items to detectives. Detectives Linder and David Tumey testified that Williams was searched before each transaction with Robertson. Linder testified that he had no evidence she ever "slipped pills in" or had extra money on her in more than a hundred cases she had done. The substances in this case were identified as "morphine C-II" and "amphetamine C-II" on Arkansas State Crime Laboratory documents entitled "Evidence Submission Form" and "Drugs/Report of Laboratory Analysis," and chemists from the lab testified that they had identified those substances. Counsel concludes that it was up to the jury to weigh the witnesses' testimony and choose particular testimony to believe, a choice that the appellate court will not question. Hicks v. State, 327 Ark. 652, 658–659, 941 S.W.2d 387, 391 (1997).

         B. Objection to Lack of Discovery

         Detective Tumey testified that Williams had done more than ten buys for Detective Linder and him, and Robertson objected that he had not been provided the information in discovery. The court overruled the objection, finding that the State need not provide any "information that they don't use as evidence. It's just an oral question." Counsel notes that Arkansas Rule of Criminal Procedure 17.1 requires the State to provide names and addresses of witnesses it intends to call but not the substance of their testimony, and that a criminal defendant cannot rely upon discovery as a total substitute for his or her own investigation. Hicks v. State, 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000).

         C. Objection to Admission of Laboratory Report

          Robertson objected to the admission of State's exhibit 8, a "Report of Laboratory Analysis" by a chemist at the state crime laboratory, because of a discrepancy between its reference to "4 round purple tablets" and the reference to "4 round burgundy pills" in the "Evidence Submission Form" signed by Detective Linder. The court ruled that a partial identification or misidentification of colors did not require exclusion. Because decisions on evidentiary issues fall within the trial court's broad discretion and are not to be reversed absent an abuse of discretion, Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003), counsel asserts that admission of this evidence would be an abuse of discretion only if the descriptions of color would unfairly prejudice Mr. Robertson or confuse the jury. Ark. R. Evid. 403 (2017). The weight of this particular evidence was ...

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