Davis v. State

         APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15CR-17-110], HONORABLE JERRY RAMEY, JUDGE

         Robert N. Jeffrey, Attorney at Law, Camden, by: Robert N. Jeffrey, for appellant.

         Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

          OPINION

         LARRY D. 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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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, 2014 WL 5474790; 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 ...