#### Robert Lovell BROWN v. STATE of Arkansas

CR 97-1236

970 S.W.2d 287

Supreme Court of Arkansas

Opinion delivered June 25, 1998

[Petition for rehearing denied September 10, 1998.]

John I. Purtle, for appellant.

Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.

Robert L. Brown, Justice.

This case raises the sole issue of whether appellant Robert Lovell Brown was denied a fair trial because the jury deliberated for such a brief period of time following his trial for capital murder. Because

On September 30, 1996, Brown was charged with capital murder for the shooting death of James Allen. On January 10, 1997, he was tried on that charge before a jury. The facts that developed at trial are these. On June 23, 1996, at approximately 9:30 p.m., Tanya Jordan, a twenty-three-year-old college student, witnessed a Toyota Camry drive slowly up the Lithe Rock street *699by her house. According to Jordan, the car sped off when the occupants saw her. Within five minutes, she heard gunshots and again saw the Toyota Camry, but this time, Brown, the driver, was hanging out the window with a gun in his hand. She testified that Brown again sped off but that she ran to the street to identify the Canary's license-plate number. At that time, she discovered the victim, James Allen, who was critically wounded and lying in a ditch between her house and the street.

Ronnie Smith, a homicide investigator with the Little Rock Police Department, testified that a Ruger Model P-90 .45 caliber semi-automatic pistol was turned over to the Department as the potential murder weapon by Brown’s girlfriend, Sally Davie, who owned the Toyota Camry. Ron Andrejack, a firearms toolmark examiner with the State Crime Lab, testified that the two full-metal jacketed bullets that were removed from Allen’s body, as well as four shell casings that were retrieved from the crime scene, were fired from the same Ruger pistol. Brown also stipulated to the fact that the bullets removed from Allen’s body were fired from the Ruger pistol.

Calvin Oliver, who had known Brown for approximately ten years, testified that he was sitting in the back seat of the Camry on the passenger side when the shooting occurred. He explained that Brown drove his cousin, Shawn, and him around the block twice and that Brown shot Allen the second time around. He stated that Brown crossed the road to the opposite side of the street, where Allen was walking, and that he stopped the vehicle and shot six or seven times. Oliver testified that he did not see anything in Allen’s hands and that he never saw Allen make any sudden movements. Oliver testified that Brown and he were in the South Side gang and that Allen was in the West Side gang. Oliver explained that it was known that a friend of theirs had been killed a couple of months earlier by a member of the West Side gang.

Chantelle Bequette, a criminalist in the trace evidence section of the State Crime Lab testified that she examined the white tee-shirt worn by Allen at the time he was shot and stated that there was a smoke stain around the hole in the back of the shirt. *700As a result, she opined that Allen was shot in the back at close range.

Brown next testified in his own defense. He briefly explained that Allen had threatened him and cursed him. Allen then, according to Brown, “approached my car and he went in the front of his pants like he was fixing to pull a weapon on me, a gun, a pistol, and I shot him.” He testified that approximately one year earlier, Allen had pulled a pistol on him to rob him, and he stated that he believed Allen to be a dangerous person. He testified that he tried to avoid Allen the first time by driving away, and he denied that the killing was motivated by revenge. He testified that Allen approached his car “acting crazy,” and he admitted that he took the pistol from the console and fired three or four times.

After the close of the evidence, the jury left the courtroom and returned ten minutes later with a verdict of guilty. Brown was sentenced to life in prison without parole. No objection or motion was made by Brown at the time of sentencing concerning the brief span of the jury’s deliberation time.

The Judgment and Commitment Order was entered on March 20, 1997. Prior to that date, Brown filed a motion for judgment notwithstanding the verdict on February 18, 1997, and a motion for a new trial on March 10, 1997. Both motions raised the issue that the jury only deliberated for an impermissibly short period of time. A hearing was held on the two motions on April 1, 1997, and the trial court denied them. No order denying the motions appears in the record. On April 16, 1997, Brown filed a notice of appeal from the judgment.

Though the State fails to make this argument, it is clear to us that the issue of an abbreviated jury deliberation is not preserved for our review. As an initial matter, both the posttrial motions in this matter were ineffective because they were filed before the judgment was entered in this case. See Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996) (per curiam); Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (per curiam). Because the motions are void, we treat them as if they had never been made. In addition, there was no order entered denying the *701motions, and Brown, according to his notice of appeal, appealed only from the judgment.

When the jury returned its verdict, no motion or objection was made at that time about the brevity of deliberations. The jury was then dismissed. The issue of an impermissibly brief deliberation period was not raised until the posttrial motions which we have already concluded were void and ineffective. The practical effect on these procedural lapses is that the issue now raised in this appeal is being raised for the first time on appeal and is not preserved for our review. See, e.g., Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

Affirmed.