ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

OTIS MILLER

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR02-1308

JUNE 18, 2003

APPEAL FROM THE UNION COUNTY CIRCUIT COURT,

NO. CR2001-660,

HON. CAROL CRAFTON ANTHONY, JUDGE

AFFIRMED

Otis Miller was tried by a jury for delivery of the controlled substance cocaine and was convicted on the lesser-included offense of possession of cocaine. He was sentenced as a habitual offender to serve thirty years' imprisonment and was ordered to pay a fine of $10,000. He raises one point of appeal, contending that the trial court erred and denied him due process when, after determining that defense counsel had blacked out for an undocumented period of time, the court failed to inquire further and to determine whether counsel's assistance was so ineffective that appellant was denied his right to a fair trial. We affirm.

State's witness Felishia Brown, a chemist with the state crime laboratory, was recognized without objection at trial as an expert drug analyst. She identified the packaging and evidence that had been submitted to her by the Thirteenth Judicial District Drug Task

Force, and she stated her certainty that the item was the one she had tested and determined to be cocaine. Defense counsel did not object to the exhibits' introduction into evidence. At this point in the trial, the trial court asked to see defense counsel. The following colloquy took place outside the hearing of the jury:

The Court: Do you need a break?

Mr. Gillaspie: No ma'am, I just got this [unintelligible] blood pressure--

The Court: You were, you were asleep.

Mr. Gillaspie: No ma'am, I wasn't asleep.

The Court: Well, that's what the jury thinks.

Mr. Gillaspie: I just blacked out -

The Court: The jury thinks you're asleep. What you want me to do about it?

Mr. Gillaspie: Explain - don't [unintelligible].

The Court: Okay.

Back within the hearing of the jury, the State passed the witness to defense counsel for cross-examination. The State completed its case in chief, and Miller then took the stand in his own defense. He testified that he was addicted to cocaine and had possessed the cocaine for his own use.

Miller complains on appeal that although defense counsel had vigorously cross-examined previous witnesses at trial, counsel failed to question Brown about her qualifications or experience, the particular tests she performed or the results obtained, and the chain of custody. Miller complains that the cross-examination consisted only of questioning Brown as to whether other tests and fingerprint analysis had been requested, and whether analysis would have been performed had it been requested. He notes that neither counsel nor the court made a record at trial to determine what evidence defense counsel missed due to his black-out.

Miller notes the maxim of United States v. Cronic, 466 U.S. 648 (1984), that "a trial is unfair if the accused is denied counsel at a critical stage of his trial." He argues that although he did not object at trial to defense counsel's deficient performance, the circuit court had a duty to intervene and correct this serious error, by admonishing the jury or by ordering a new trial. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) (recognizing that there are four exceptions to the contemporaneous-objection rule). He relies in part upon Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996), which set forth the strong presumption that a duly licensed attorney is competent, and directed that a court deciding an ineffectiveness claim must consider the totality of the evidence that was before the jury and must judge the reasonableness of the challenged conduct on the facts of the particular case at the time of counsel's actions. The Helton court stated:

This court has expressly adopted the criteria for establishing a claim for ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984)... . In Strickland, the Supreme Court held:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must showthat the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to ··²PG145²··deprive the defendant of a fair trial, a trial whose result is reliable.

325 Ark. at 144-45, 924 S.W.3d at 242, citing Strickland v. Washington, ··²PG145²··supra at 687 (1984). Appellant's ineffective-assistance-of-counsel argument was not raised below, and we will generally not consider errors raised for the first time on appeal. Cook v. State, 76 Ark. App. 447, 68 S.W.3d 303 (2002). In Cook, appellant argued that the trial court was obligated to make an inquiry on its own motion to correct by admonition or mistrial an alleged serious error regarding defense counsel's conflict of interest in representing two defendants. We disagreed for the following reasons:

The "serious error" exception was articulated in Wicks v. State 270 Ark. 781, 606 S.W.2d 366 (1980), and the court explained that the use of this exception is a mere possibility . . . . Because appellant is raising an ineffective-assistance-of-counsel argument, instead of an immediate and egregious trial error, we do not believe that this is an appropriate case for application of the "serious error" exception. Therefore, the ineffective-assistance-of-counsel issue is not preserved and accordingly, we affirm on this point.

Id. at 454, 68 S.W.3d at 313. The Cook court affirmed the denial of post-conviction relief. Miller differentiates the circumstances of his counsel's behavior from those of Cook v. State, id., and argues that the error at his trial was immediate and egregious. He asserts that the trial court's failure to inquire further and determine the extent to which counsel lost consciousness constitutes serious error because of the critical point at which his counsel was ineffective, when the State's expert identified as cocaine the substance introduced into evidence.

We do not view defense counsel's perceived shortcomings as falling within the"serious error" exception of Wicks v. State, supra. The third of the four Wicks exceptions to the contemporaneous-objection rule relates to the trial court's duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial. Our supreme court has set forth the threshold argument of a Wicks-three exception as whether there was a violation of the right to a jury trial so fundamental as to require reversal. See Anderson v. State, ___ Ark. ___, ___ S.W.3d ___ (May 29, 2003). The issue in Anderson was whether prosecutorial misstatements during voir dire concerning the State's burden of proof rose to the level of a Wicks-three exception. The Anderson court held:

The failure to provide a criminal defendant with a jury trial is an error so serious that the circuit court has an obligation to intervene, and this court may consider the issue on appeal without an objection below. Calnan, supra; Winkle, supra; Grinning, supra. Likewise, today we conclude that failure to secure the companion rights of the presumption of innocence and the State's burden of proof beyond a reasonable doubt is an error so serious that the circuit court should intervene, and we will consider the issue on appeal even without a contemporaneous objection.

Id. at ___, ___S.W.3d at ___.

In the present case we are not convinced that defense counsel's failure to object to the introduction of the cocaine and purported failure to thoroughly cross-examine the State's expert on this subject is an issue akin to the right to a jury trial. Our consideration of the totality of the evidence before the jury includes the fact that Miller himself testified that the substance that he had possessed was cocaine, and that his defense to the charges was that he possessed the cocaine for his own use. We hold that defense counsel's having briefly "blacked out" when testimony identified the critical substance as cocaine and when the cocaine was accepted into evidence did not constitute an error so flagrant and highlyprejudicial as to make it the duty of the trial court on its own motion to intervene and correct the error.

Affirmed.

Gladwin and Griffen, JJ., agree.