APPEAL
FROM THE CONWAY C O U NT Y C IRC U IT C O U R T [NO.
15CR-17-110] HONORABLE JERRY RAMEY, JUDGE
Robert
N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for
appellant.
Leslie
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, Judge
This is
a no-merit appeal on behalf of Kerrie Davis following her
conviction by a Conway County Circuit Court jury of
possession of methamphetamine with purpose to deliver. We
affirm the conviction and grant counsel's motion to
withdraw.
On May
19, 2017, Davis was charged with possession of
methamphetamine with purpose to deliver. When she appeared
for a jury trial on May 23, 2018, Davis advised her counsel
that she needed a continuance to hire a private attorney.
Counsel moved for a continuance of the jury trial. The
circuit court denied the motion, finding the case was a year
old, that private counsel had not appeared with Davis in
court, and Davis could not show that she had retained private
counsel. In fact, she stated that she had spoken to an
attorney but could not remember the attorney's full name.
The
trial proceeded, and the State elicited testimony from
Sergeant Andy Force of the Morrilton Police Department. Force
testified he came into contact with Davis on March 7, 2017,
during a traffic stop in Morrilton. Force testified that he
stopped a Plymouth Breeze operated by Crystal Chambers and
that Davis was a passenger in the vehicle. Force discovered
that Davis had outstanding warrants for her arrest and took
her into custody. A female employee of the police department,
Christy Rooney, searched Davis when they arrived at the
police station. Force testified that Rooney returned from
searching Davis and handed him a package containing a
crystal-white substance and two different pills. These items
were entered into evidence as exhibits.
Christy
Rooney testified that she is employed by the Morrilton Police
Department, and while at work on March 7, Sergeant Force
asked her to search Davis. During the search, Rooney found
four plastic baggies inside Davis's bra. Rooney
identified the State's exhibits as the items she had
discovered on Davis.
Reece
Borchers testified that he is employed by the Arkansas State
Crime Laboratory as a chemist and that he had analyzed the
evidence seized from Davis during the search. Borchers
testified that he tested these items and found that the
substance was methamphetamine. On cross-examination, Borchers
testified that the substance he tested and measured in this
case was determined to be 1.0088 grams of methamphetamine.
The
jury found Davis guilty of possession of methamphetamine with
purpose to deliver. During the sentencing phase, Davis
testified she agreed to work for the Drug Task Force (DTF) to
make three controlled buys. Davis stated that she made one
buy for DTF but that they did not drop the charges. Counsel
then asked Davis if DTF had said why it would not drop the
charges. The State objected to the question as eliciting
hearsay, and the court sustained the objection.
In
response to her counsel's next question, Davis began to
testify about what a third party, Nathan Watkins, had told
her. Again the State's hearsay objection was sustained by
the circuit court.
The
jury sentenced Davis to fifteen years in the Arkansas
Department of Correction. Davis filed a timely appeal. We
previously ordered rebriefing of counsel's no-merit
appeal due to briefing deficiencies, which have now been
cured.
In
keeping with the requirements of Anders v.
California, 386 U.S. 738 (1967), counsel has listed all
adverse rulings and has adequately briefed the court as to
why each ruling would not present a nonfrivolous basis for
appeal. The first adverse ruling was the court's denial
of Davis's motion for a continuance made on the morning
that the jury trial was set to begin. The denial of a motion
for a continuance is reviewed for abuse of discretion.
Davis v. State, 2014 Ark.App. 589; Mahomes v.
State, 2013 Ark.App. 215, 427 S.W.3d 123. In order to
warrant reversal, an appellant must demonstrate both that the
circuit court abused its discretion in denying the
continuance and also show prejudice from the denial of the
continuance that amounts to a denial of justice. Id.
Here,
Davis advised her appointed counsel that she had spoken to a
private attorney and needed a continuance to hire that
attorney as private counsel. Her appointed attorney moved for
a continuance, but Davis could not show the court that she
had retained private counsel. In fact, she could not remember
the last name of the attorney with whom she had spoken. The
court noted that the case had been pending for a year,
meaning that Davis had already had plenty of time to hire
...