ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 01-198

November 14, 2001

WILLIAM HENRY REED JR. APPEAL FROM HOT SPRING COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN W. COLE

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

In a jury trial, William Henry Reed Jr., was found guilty of first-degree battery for shooting Deamone Walker, and he was sentenced to twenty years in prison and fined $15,000. Appellant contends on appeal that the trial court erred in denying his motion for a continuance based on the failure of the sheriff's office to serve some of his witnesses with subpoenas and that the court erred in denying his motions to strike and for a continuance based on an alleged discovery violation. We find no error and affirm.

On March 21, 1999, Deamone Walker, appellant, and appellant's nephew were at a gathering at a house in Malvern where alcohol was being consumed. Walker and appellant's nephew exchanged words, and Walker struck the nephew. Appellant retrieved a gun and fired a shot inside the residence. Walker ran outside and was climbing a fence when he was shot by appellant. Mr. Walker was able to make it to the home of people he knew who called for an ambulance. His injuries were substantial. In his testimony at trial, Walker positively identified appellant as the person who had shot him.

Not long after the shooting, appellant went to the police station and told the dispatcher, "Call your boys off, I'm the one who did the shooting." Officer Frazier Ford then came into contact with appellant as he sat in a waiting area where others were present. Ford ascertained that appellant was the person who had appeared in reference to the shooting, and as Ford was patting appellant down, Ford inquired about the location of the weapon used in the shooting. Appellant replied that it was in his truck outside, and Ford asked for and received permission to secure the weapon from the vehicle. Detective Brandon Davis then met with appellant. He advised appellant of his rights under Miranda, and appellant invoked his right to counsel. No further questioning took place.

At the beginning of trial, appellant moved for a continuance on the ground that the sheriff's office had not served some of his witnesses with subpoenas. Appellant stated that eight subpoenas had been given to the sheriff's office but that five of his witnesses had not been served. Of those five, one had been served privately but had failed to appear. Another witness, Carol Hunter, was present for trial.1 Appellant stated that, of the remaining three witnesses, two were expected to testify that Mr. Walker had been unsure about who had shot him, and the other witness was allegedly present at the gathering and would testify that appellant was not the shooter.

Appellant called Deputy Sheriff Buddy Boyette to testify in support of his motion. Boyette testified that the subpoenas were delivered to the sheriff's office on August 11, 2000, and that he attempted to serve them on August 16, the day before trial. He said that he went to the homes of the subpoenaed witnesses but that no one answered the door. He attempted to telephone those witnesses who had a phone, but he was unable to reach them. The trial court denied the motion for a continuance. The court found that the sheriff's office had made a reasonable attemptto serve the subpoenas but that the witnesses were either not at home or did not answer the phone. The court also found that the testimony of the missing witnesses appeared to be cumulative but that their testimony would be relevant and material to appellant's defense.

Appellant argues on appeal that his witnesses were not served due to the negligence of the sheriff's office, and he contends that the trial court's denial of a continuance violated his right to subpoena witnesses under Art. 2, Section 10 of the Arkansas Constitution and Ark. Code Ann. § 16-43-208 (Repl. 1999).

The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). Rule 27.3 of the Arkansas Rules of Criminal Procedure provides:

The court shall grant a continuance only upon a showing of good cause and for only so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

When deciding whether a continuance should be granted, the following factors are to be considered by the trial court: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of thewitness in the event of postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that appellant believes them to be true. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). The appellant must also demonstrate prejudice from the denial of the continuance. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997).

In MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), the appellant sought a writ of mandamus from the trial court to compel the local sheriff's office to serve a subpoena in another county. As here, the appellant relied on Ark. Code Ann. § 16-43-208 in support of his argument on appeal. The supreme court found no abuse of discretion in the trial court's denial of the writ. The court observed that the statute placed a duty on the circuit clerk to issue subpoenas for witnesses but that it placed no correlative duty on the sheriff's office to serve subpoenas issued by the clerk. The court noted that service of subpoenas by the sheriff was not the only means to have subpoenas served. Subpoenas may also be served by any person who is not a party to the litigation who is at least eighteen years old. In addition, subpoenas can be served by an attorney in the cause by mail. See Ark. Code Ann. § 16-43-211 (Repl. 1999); Ark. R. Civ. P. 45. In this case, appellant had already obtained four continuances of trial. On this record we find no abuse of discretion in the trialcourt's decision that appellant had failed to show good cause for yet another continuance. With regard to appellant's argument under the Arkansas Constitution, appellant did not raise any constitu tional objection below and has thus waived that issue on appeal. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Even constitutional issues may not be raised for the first time on appeal. Duvall v. State, 41 Ark. App. 148, 852 S.W.2d 144 (1993).

Appellant's second argument involves an alleged discovery violation. During appellant's cross-examination of Officer Ford, Ford testified that appellant had not been Mirandized when he asked appellant about the location of the weapon used in the shooting. Appellant then moved to strike the testimony and evidence concern ing the gun stating that appellant did not have "informed consent for them to search his truck." The court denied the motion. Appellant's counsel then reviewed a report that Officer Ford had with him on the witness stand. Counsel moved for a continuance saying that the report had not been provided in discovery and that it dealt with the critical issue of how the officer had obtained consent for the search of appellant's truck. Counsel argued that, because he did not have the report, he was unaware that no Miranda warnings had been given. He stated that, had he known, he may have filed pretrial motions related to this event. The State countered appellant's claim of surprise with the argument that the information in the report was much the same as that summarized in the affidavit for the bench warrant. The court denied this motion as well.

The trial court has broad discretion in matters pertaining to discovery and that discretion will not be second-guessed by the appellate court absent an abuse of discretion. Findley v. State, 64 Ark. App. 291, 984 S.W.2d 454 (1998). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). Absent a showing of prejudice, we will not reverse. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). Appellant has failed to demonstrate prejudice. The affidavit referred to by the prosecutor gives an account of the circumstances surrounding the consent to the search. The report appellant contends was not provided has not been made a part of the record. We are thus unable to determine whether it contained any information materially different from that disclosed in the affidavit. We cannot conclude on this record that the trial court abused its discretion. We also note that a defendant in a criminal case cannot rely on discovery as a total substitute for his own investigation. Hicks v. State, supra.

Affirmed.

Bird and Roaf, JJ., agree.

1 It was to her home that Walker went after he had been shot. Ms. Hunter testified that she asked Walker who had shot him but that Walker did not answer her question but instead complained about having been shot.