# Eastin v. State

> Court of Appeals of Arkansas · December 6, 2006 · 97 Ark. App. 81

URL: https://www.frixlaw.com/law-library/cases/9699779

## Case

- **Full name:** Max C. EASTIN v. STATE of Arkansas
- **Court:** Court of Appeals of Arkansas
- **Decided:** December 6, 2006
- **Citations:** 97 Ark. App. 81; 244 S.W.3d 718; 2006 Ark. App. LEXIS 866
- **Precedential status:** Published
- **Opinion:** Dissent by Gladwin
- **Judges:** John B. Robbins
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Robert J. Gladwin, Judge, dissenting. This court should not address appellant’s motion to suppress because he abandoned it at the preliminary hearing and thus it is not preserved for review. Therefore, I would affirm.
On February 1, 2005, appellant filed a motion to exclude evidence. In that motion the only material allegation was that the reliability of the confidential informant had not been determined by the affiant and should not provide a basis for the issuance of the search warrant. He also filed a motion to reveal the identity of the confidential informant. The first issue addressed by the trial court during the preliminary hearing was the identity of the confidential informant. The trial court found that the appellant’s motion to provide the identity of the confidential informant should be denied. After a short colloquy, the following exchange took place:
Court: All right the record is so noted, and we’ll proceed to the motion to exclude evidence.
Mr. Johnson: Well your honor we can’t proceed at this point because obviously without the identity of the confidential informant, it would be impossible to attack his credibility.
Court: All right the defendant’s motion to exclude evidence will be denied.
Following this exchange, the prosecutor asked the court to go on the record to explain her reasons in response to the motion. After the prosecutor’s short statement, appellant’s counsel stated, “I thought the court had already ruled.” The prosecutor thanked the court for humoring her and the discussion moved to the question of a continuance.
This court will not address an argument on appeal where the record is “barren of proof ’ as to the allegations made. Munnerlyn v. State, 292 Ark. 467, 470 , 730 S.W.2d 895, 897 (1987). It is the appellant’s burden to present a case before the trial court that fully and completely develops all the issues. See Raymond v. State, 354 Ark. 157 , 118 S.W.3d 567 (2003); Walker v. State, 314 Ark. 628 , 864 S.W.2d 230 (1993). Moreover, it is the appellant’s burden to obtain a clear ruling on an issue from the trial court. Misskelley v. State, 323 Ark. 449 , 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996); Bowen v. State, 322 Ark. 483 , 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996).
In the present case appellant clearly abandoned his argument. When the trial court proceeded from the motion to provide the identity of the confidential informant to the motion to suppress, appellant’s counsel stated that he could not proceed and made no other statement. The prosecutor’s statement is mere surplusage as the court denied the motion based upon appellant’s failure to proceed on his motion. It is clear that the court thought appellant had abandoned his motion by his immediate denial.
I agree with the majority that the trial court erred in admitting the transcription of appellant’s statement to the police when the original tape no longer existed. See Hamm v. State, 296 Ark. 385 , 757 S.W.2d 932 (1988). However, the error was harmless considering the overwhelming evidence of appellant’s guilt. See Lewis v. State, 74 Ark. App. 61 , 48 S.W.3d 535 (2001). Therefore I would affirm appellant’s conviction.
Pittman, C.J., and Crabtree, J., join.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699779. Public record. Not legal advice.