John L. Smith v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

Arkansas Court of Appeals

Judge Josephine Linker Hart

DIVISION II

JOHN L. SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-318

November 1, 2000

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CR-97-74-1]

HONORABLE BERLIN C. JONES,

CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant, John L. Smith, appeals from his aggravated robbery conviction for which he was sentenced to 40 years' imprisonment. Appellant argues that the evidence was insufficient to support his conviction, that the case should have been dismissed because he was not timely brought to trial, that certain evidence should have been suppressed at trial because the search warrant affidavit supporting the search warrant did not provide reasonable cause to believe the grounds necessary to justify a nighttime search, and that the trial court should have given the jury an instruction on the lesser-included offense of robbery. While we affirm on all other points, we reverse and remand because we conclude that the search warrant affidavit did not support the issuance of a nighttime search warrant.

Appellant challenges the sufficiency of the evidence supporting his conviction foraggravated robbery by specifically arguing that the evidence was insufficient to establish his intent to commit a felony or misdemeanor theft. "A person commits robbery if, with the

purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person commits aggravated robbery if he commits robbery and "[i]s armed with a deadly weapon or represents by word or conduct that he is so armed." Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). "A person commits theft of property if he... [k]nowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1997).

We review the evidence in a light most favorable to the appellee and affirm if there is substantial evidence to support the verdict. See Pond v. State, 69 Ark. App. 346, 14 S.W.3d 525 (2000). Evidence is substantial if it is of sufficient force to compel a conclusion one way or the other with reasonable certainty. Id. While intent can rarely be proved by direct evidence, it may be inferred from the circumstances of the crime. Id.

Here, the circumstances surrounding the crime provide substantial evidence from which the fact-finder could conclude that appellant intended to commit a theft. In brief, appellant accosted the victim in a parking lot while armed with a pistol, took her purse containing various personal items and fifteen dollars, and fled. As the Arkansas Supreme Court has noted, "[d]epriving another of his property is the essence of theft." Crutchfield v. State, 306 Ark. 97, 99, 812 S.W.2d 459, 460 (1991). This evidence sufficed to establishappellant's intent to commit a theft, and, thus, there was substantial evidence to support appellant's conviction for aggravated robbery.

Appellant next argues that he was not given a speedy trial because he was brought to trial outside the time mandated by Rule 28.1 of the Arkansas Rules of Criminal Procedure. At issue in this case is whether a particular time period was properly excluded in computing the time for trial as a "period of delay resulting from a continuance granted at the request of the defendant or his counsel." Ark. R. Crim. P. 28.3(c) (2000). We note the following events. In an order filed February 26, 1997, counsel was appointed to represent appellant. The case was set for a jury trial to commence August 26, 1997. However, on August 22, 1997, appellant's counsel filed a motion for continuance, stating that counsel needed "additional time in which to prepare for trial." That same day, appellant's counsel also filed a separate motion for leave to withdraw as counsel, stating that he could not represent appellant because of a conflict of interest involving his representation of another client who might testify at appellant's trial. In an order entered August 26, 1997, the trial court granted appellant's motion for a continuance and reset the trial for December 2, 1997. Then, in an order entered September 2, 1997, the court permitted appellant's counsel to withdraw. That same day, the court entered an order appointing new counsel to represent appellant .

On appeal, appellant argues that the time from the first setting for trial, August 26, 1997, until the time of the second setting of trial, December 2, 1997, should not be excluded from the calculation of the time for trial. Appellant cites Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991), and argues that when a court-appointed attorney, without notice to thedefendant, files a motion for a continuance for additional time to prepare for trial and simultaneously files a motion to withdraw as counsel due to a conflict of interest, and the granting of these motions necessitates a delay in the trial, then the period of delay should not be excludable for speedy trial purposes because the defendant did nothing to cause the delay. Appellant further contends that his counsel should have discovered the conflict earlier and that the motion for a continuance to prepare for trial was a ruse, as counsel had no intention of spending any more time preparing for trial.

To the extent that appellant relies on Glover, that case does not support his position, as it stands for the proposition that if a defendant is without court-appointed counsel because of the trial court's failure to appoint new counsel after the defendant's previous court-appointed attorney was allowed to withdraw, then that period should be charged to the State. Here, appellant was never without counsel. Furthermore, the Arkansas Supreme Court has concluded that continuances requested by defense counsel without the defendant's knowledge or over the defendant's objection are chargeable to the defendant. See Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Given that this period of time was properly excluded from the calculation of time for trial, we affirm on this point.

Appellant next argues that the trial court erred in refusing to suppress items seized from a search of his home, specifically, clothing resembling that worn by the perpetrator of the aggravated robbery, because the search warrant affidavit failed to establish that a nighttime search was necessary. We agree.

When reviewing a trial court's ruling on a motion to suppress, we make anindependent determination based on the totality of the circumstances and determine whether the issuing magistrate had a substantial basis for concluding that probable cause existed. See Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999)(citing Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998)). Upon a finding by the issuing judicial officer of reasonable cause to believe that (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy, the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night. Ark. R. Crim. P. 13.2(c) (2000).

The affidavit in support of the search warrant provided as follows:

Due to the serious nature of the crimes it is requested that a night time search be authorized. The suspect is a violent criminal and is known to possess two handguns and the residence [cannot] be easily approached during the day time due to the lack of cover. The residence has north and south side exits which cannot be safely approached during daylight hours. The suspect is known [to] arrive [at] work at 2300 hours. For the welfare of the officers involved it would be best to conduct the search after his arrest.

The search warrant affidavit clearly provided that the search of appellant's residence would take place after appellant's arrest. The affidavit does not provide, however, any information that suggests that, even though appellant would be in police custody, there was reasonable cause to believe that appellant's home was still difficult of speedy access, that the clothing was still in danger of imminent removal, or that the warrant could only be safely or successfully executed at nighttime or under circumstances the occurrence of which isdifficult to predict with accuracy. Given the lack of evidence from which to find reasonable cause to believe that any of these three circumstances existed, we must find that the trial court erred in refusing to suppress the evidence seized during the nighttime search.

The State argues that even if the search warrant affidavit did not establish reasonable cause to permit a nighttime search, then in accordance with Ark. Crim. P. 16.2(e), the error committed was not a substantial violation and therefore suppression of the evidence was not required, that the executing officers acted in good faith under United States v. Leon, 468 U.S. 897 (1984), thus salvaging the defective search and seizure, and that because evidence of appellant's guilt was overwhelming and the error committed was slight, the error committed was harmless. The Arkansas Supreme Court, however, has previously concluded that failure to justify a nighttime search with sufficient factual information results in a substantial violation and that where no factual basis supports the issuance of a warrant for a nighttime search, the Leon good-faith exception is not applicable. See Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Furthermore, because the clothing was used to connect appellant to the crime, we cannot conclude that the error committed was slight and therefore harmless.

In his final point, appellant argues that the trial court erred in refusing his request that the jury be instructed on the lesser-included offense of robbery. While appellant requested such an instruction, he did not provide this court with an abstract of the instruction, and it does not appear from the abstract that such an instruction was proffered below. Appellant's failure to present this court with a record showing that the instruction was profferedprecludes further consideration of this issue on appeal. See Watson v. State, 329 Ark. 511, 951 S.W.2d 304 (1997).

Reversed and remanded.

Pittman and Meads, JJ., agree.