James E. Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION II

JAMES E. SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-391

MARCH 14, 2001

APPEAL FROM THE STONE COUNTY CIRCUIT COURT

[NO. CR1998-37]

HONORABLE JOHN DAN KEMP, JR., CIRCUIT JUDGE

AFFIRMED

Appellant was convicted by a jury in Stone County, Arkansas, of simultaneous possession of drugs and firearms, manufacture of methamphetamine, and possession of methamphetamine with intent to deliver. He was sentenced to a total of fifty years imprisonment. Appellant raises three points on appeal: (1) the trial court erred in denying appellant's motion to suppress evidence; (2) the trial court erred in refusing to suppress appellant's confession of May 20, 1998; and (3) the trial court erred in allowing the State to introduce hearsay evidence about alleged prior sales of methamphetamine by appellant. We affirm.

On May 20, 1998, at approximately 8:46 a.m., a search warrant was issued and at 10:45 a.m. it was served on the residence of James E. Smith in Stone County, Arkansas. As a result of the search, numerous items of evidence were seized, including methamphetamine

and guns. Appellant was taken into custody. Mr. Arthur Raff, a narcotics investigator for the Arkansas State Police who was employed by Stone County at the time of the search, completed the affidavit for the search warrant, was present when the judge signed the search warrant, and was present at the execution of the search warrant. He had done surveillance in the past at appellant's residence, recorded serial numbers, observed appellant go in and out of the house, and knew it to be the location of previous controlled buys of methamphetamine.

Mr. Raff and others went to the front door of appellant's residence, knocked, and announced that they were the police and had a search warrant. After no response, they forced the door open, went in, and found the appellant and others with guns, methamphetamine, and various paraphernalia. Appellant was arrested and taken to the Stone County Sheriff's office. At 7:34 p.m., Mr. Raff and another investigator read appellant his rights using a rights form and appellant responded "yes" after each question affirming that he understood the right. Appellant placed his initials beside each right, then signed the form itself. Mr. Raff and the other investigator also signed the form. During the course of the interview, appellant admitted that he had been "cooking dope" in the house when the police arrived. He related that he had eaten an eight-ball of methamphetamine. According to testimony at the suppression hearing, an eight-ball is a package of methamphetamine, 3.5 grams in weight, and usually placed in a cut corner of a plastic baggie. Shortly after making this statement, appellant vomited. Mr. Raff stopped the interview and called for ambulance personnel to attend to appellant's condition. The interview process to that point was aboutten minutes in duration.

On the floor, in appellant's vomit, Mr. Raff observed a plastic baggie. He did not retrieve the baggie. The ambulance personnel examined appellant and said he was not in need of medical attention and could remain at the jail. Mr. Raff did not want to continue the interview, believing appellant to be obviously sick even if not in need of medical attention, and did not continue the interview until the next day. On May 21, at 6:16 p.m., appellant executed a second rights form and made a second statement, consisting of four written pages, confessing in greater detail than in his previous statement.

We are unable to reach the merits of appellant's first point on appeal because the search warrant and the affidavit in support of the warrant are not abstracted. Neither is the ruling on the motion to suppress included. Rule 4-2(b)(2) of the Rules of the Supreme Court and the Court of Appeals provides that this court can confirm trial court rulings based on noncompliance with the abstract requirements. See Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998); Jewel v. Arkansas State Bd. of Dental Examiners, 324 Ark. 463, 921 S.W.2d 950 (1996). It is the appellant's burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). Without an abstract of the warrant and the affidavit, the court will not rule on alleged errors with respect to them. Johnson v. State, 303 Ark. 12, 18, 792 S.W.2d 863, 865 (1990).

We are similarly prevented from reaching appellant's second point on appeal. No ruling on the motion to suppress appellant's custodial statement is in the abstract nor doesit appear in the record. It was the appellant's burden to obtain a ruling on his motion to suppress his custodial statements, and without a ruling, he has nothing to challenge on appeal and the court has nothing to review. See, e.g., McGhee v. State, 330 Ark. 38, 41-42, 954 S.W.2d 206, 208 (1997). However, we note that appellant's argument relates only to the statement given on May 20, and not to the more detailed confession given the next day.

Appellant's third argument raises both a hearsay as well as a relevancy argument under subsection (b) of Rule 4 of the Arkansas Rules of Evidence. He claims the admission of testimony concerning three drug sales made from his home in March 1998 was error. The hearsay argument is based upon testimony by Mr. Raff concerning the purchase of methamphetamine from Mr. Smith at his home by three confidential informants. Mr. Raff testified concerning the procedures followed during the drug buys. He described searching the informants and their vehicles, looking for drugs or other contraband before and after the controlled buy. He explained giving them a body wire hidden on the body, that the conversations were recorded and how he recognized appellant's voice. He told the jury how he gave the informants the money for the purchase of narcotics, followed them to the residence as close as possible, recorded the drug transaction, watched them leave, then followed them to the predetermined location to retrieve the methamphetamine. Mr. Raff's testimony is not hearsay. Rule 801(c) of the Arkansas Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial, offered into evidence to prove the truth of the matter asserted. The general rule declaring hearsay inadmissible does not prevent a witness from stating what he had heard;it is rather a restriction on the proof of a fact by extra-judicial statements. Dutton v. Evans, 400 U.S. 74 (1970). These were the investigator's personal observations regarding the controlled narcotics buys, not the mere repetition of someone's statement that they had purchased drugs from appellant.

Appellant's 404(b) objection relies upon the hearsay aspect of his argument and also fails. Appellant acknowledges that Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), permits the introduction of previous drug sales so long as they are not too remote in time, but attempts to distinguish Owens on the basis that in his case the evidence of drug sales was not testified to by the informant making the purchase, but by the investigator in control of the purchase. No such distinction is warranted under the facts of this case and the purchases, made just two months prior to appellant's arrest, are not too remote in time.

Affirmed.

Griffen and Crabtree, JJ., agree