James Curran v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

JAMES CURRAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-508

November 14, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR99-3044]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant, James Curran, was tried by a jury and found guilty of the following six offenses: 1) simultaneous possession of drugs and firearms, 2) manufacture of a controlled substance (methamphetamine), 3) possession of a controlled substance (methamphetamine), 4) possession of drug paraphernalia with intent to manufacture (methamphetamine), 5) possession of drug paraphernalia, and 6) maintaining a drug premises. He was sentenced to 360 months on the simultaneous possession of drugs and firearms conviction, 300 months on the manufacture of a controlled substance conviction, 180 months on the possession of a controlled substance conviction, 240 months on the possession of drug paraphernalia with intent to manufacture conviction, 144 months on the possession of drug paraphernalia conviction, and 144 months on the maintaining a drug premises conviction. The sentences for possession of a controlled substance and possession of drug paraphernalia were to be

served concurrently, with the remaining sentences to be served consecutively. On appeal, appellant asserts as error the trial court's allowance of two categories of evidence at trial. We affirm.

Officer Jim Bob Stephens testified that he was supervisor of the narcotics detail for the LRPD, and that on June 7, 1999, he and other officers went to 3103 Zion where he made contact with appellant, James Curran. He stated that he read the consent form to appellant, that appellant stated he understood, and that appellant signed the form. Stephens stated that he remembered two or three people on the south side of the yard, but that he did not remember anyone else being inside the residence at the time the search was conducted. He explained that anything that is deemed toxic waste is turned over to a company for incineration in Oklahoma. He stated that toxic-waste chemicals are very dangerous and that the officers take special precautions to handle them as little as possible. The chemists come out, set up a table, take samples, and go back to the lab for testing. The toxic items are then turned over to the toxic-waste-handling company for disposal in Oklahoma. He stated that he also briefly glanced into the outside shed, and that he did not request fingerprint examinations "for any of this."

Detective Dana Jackson testified that he took down appellant's personal information and that appellant told him that he lived at 3103 Zion Street. He remembered observing at least two other people that were there and some small children. He stated that other "civilians" also claimed 3103 Zion as their residence. In addition, another person who showed up hours later claimed the residence.

Detective Michael Terry testified that he searched the southeast bedroom of 3103 Zion, and that he found a .22 caliber, loaded pistol in a briefcase in the bedroom. He stated that he also found a box containing three syringes and two spoons with residue in the headboard, and items of mail that he recovered from the dresser in the bedroom. Officer Terry proceeded to state that he found three or four items of correspondence addressed to appellant at the 3103 Zion Street address, one of which was a bill from Entergy. Another item of correspondence was a final notice from Comcast Cable, addressed to appellant at 3103 Zion. Officer Terry testified about a receipt from Entergy that was found in the room and that had appellant's name on it, but no address. Terry finally stated that he found a box of syringes in the closet of the same bedroom, and that he did not fingerprint any of the items he recovered.

Officer Ken Blankenship testified that he searched the kitchen and southwest bedroom of 3103 Zion; that in the kitchen area, he found a glass bottle containing a bi-layer liquid with an organic smell; and that in the southwest bedroom, he found two cans of starter fluid and a quart-sized milk jug, about half full of muriatic acid.

Detective Greg Siegler testified that when he and other officers first arrived at 3103 Zion, he noticed that a black 280-Z was backing out of the driveway, and that he got in an unmarked vehicle and pursued the 280-Z at high speed to a stop light, where he made contact with the driver and passenger. He testified that he found a radio and drug paraphernalia (two syringes and a smoking pipe) in that car. He then returned to 3103 Zion and saw that Detective Jackson had stopped some individuals in the front yard. He said thathe also saw the appellant open the front door of the residence partially. He and other detectives asked appellant to step out on the porch.

Siegler stated that he searched the shed that was behind and to the right of the house. He said that he found a one-gallon jug, tincture of iodine with 7% solution; a plastic bottle of peroxide; a plastic bag or a plastic jug that was about a quarter full of a clear liquid; and a glass jar containing a two-layer solution. He turned the items over to a chemist from the State Crime Lab, and they were destroyed after testing.

On cross-examination, Siegler stated that he did not fingerprint any of the items taken from the shed, and that he did not find any of "these chemicals or anything" on appellant. He stated that he knew that at least one other person had claimed 3103 Zion as their residence at a later date. On redirect, he stated that the radio he found in the 280-Z was identical to one found in the house and that "you could talk to each other on the radios."

Detective Barry Flannery testified that when he pulled up to 3103 Zion, he noticed two white males and a white female standing out front; that he went to the front door of the residence, knocked, and appellant opened the inside wooden door. He asked appellant to step outside.

Flannery stated that he searched the shed with Siegler; that he found a plastic jug on the ground between the house and the shed; that in the shed, he found a glass jar containing a two-layered solution, one gallon of Liquid Fire, one quart of drain opener, another quart of Liquid Fire, a container of salt, a metal pot, a can of denatured alcohol, a can of Naptha paint thinner, a roll of plastic tubing, and three mason jars with residue.

Flannery testified that he recovered a loaded, .38 caliber Taurus revolver from behind the front door of the residence. He stated that none of the items were fingerprinted; that none of their fingerprint technicians are certified by the DEA; and that it is against OSHA regulations to have anybody that is not certified at a lab site once it is secured. He testified that the State Crime Lab stopped sending fingerprint technicians with the chemists because they had so much of a backlog.

Norman Kemper testified that he is a forensic drug chemist and that he went to 3103 Zion to "process a lab." He then generally described what he has found to be the most common method to manufacture methamphetamine in Arkansas, explaining how the various items recovered from 3103 Zion would be used in the process. He stated that in his opinion manufacturing was happening at that location. He also explained that an earlier administrative decision had been made to discontinue the practice of bringing a latent-prints examiner to such crime scenes because of a tremendous backlog in the Latent Prints Section of the Crime Lab.

Detective Barry Flannery was recalled and testified that when he went to the front door and appellant walked outside, he could smell a chemical odor that he associates with a methamphetamine lab emitting from inside the residence. He further testified that he found no one else in the house.

During closing argument, the State made the following argument:

I'm going to go through the evidence with you now during closing argument just to kind of close things up. You heard today that on June 7th of 1999, LRPD went out to 3103 Zion Road. You heard that from Officer Dana Jackson that theDefendant here today told him that was his residence. That was actually the address that he gave. He gave consent. He signed a consent form for them to search the residence, his residence. You also heard from the officers in the bedroom on the nightstand were bills that had his name, had that same address on those bills, one from Entergy, one from the cable company.

(Emphasis added.)

For his first point of appeal, appellant contends that "the trial court erred in allowing into evidence [photographs of] items that were destroyed without regard as to whether exculpatory evidence was systematically lost." His basic contention is that because the evidence was destroyed as hazardous materials, he was never afforded the opportunity to examine it in order to find possible evidence that could be used in his defense, for example latent fingerprints or independent lab-test results. Citing Brady v. Maryland, 373 U.S. 83 (1963), he argues that the State's policy of destroying this type of evidence violates his due process rights because it results in the systematic destruction of potentially exculpatory material, constituting bad faith on the part of the State. He further contends that the policy denies him equal protection because similarly situated defendants have access to the physical evidence against them. We disagree.

In Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001), the appellant made a similar argument that the State had destroyed evidence, and that if it had not done so there was a reasonable probability that fingerprint evidence would have proved exculpatory, thus violating his due process rights under Brady and other cases. We rejected the argument, reasoning that "we do not view his bare allegation as rising to a reasonable probability that impeachment or exculpatory evidence would have been favorable to his defense." Id. at 119,47 S.W.3d at 901. The same situation is presented here. Appellant has provided nothing beyond a bare allegation.

Moreover, in Kenyon v. State, 58 Ark. App. 24, 946 S.W.2d 705 (1997), the appellant's failure to show bad faith on the part of the State was an important factor in our decision that test-result evidence was properly admitted. Here, the State presented testimony explaining the hazardous nature of the materials and the need for its proper, quick disposal. Appellant, on the other hand, did not convincingly present any evidence of bad faith.

For the equal-protection portion of appellant's argument, he contends that because of the State Crime Lab's policy of not fingerprinting evidence and immediately destroying the evidence gathered at the scenes of methamphetamine-manufacturing offenses, defendants in methamphetamine cases are not afforded the right to test for exculpatory evidence while other similarly situated defendants have access to the physical evidence against them. We merely note that appellant has not presented any authority for his equal-protection argument and it is not apparent to us without further research that the argument is well-taken. Our appellate courts have long held that we will not consider arguments on appeal where it is not apparent without further research that the argument is well-taken. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001).

For his second point of appeal, appellant contends that "the introduction of mail and its publication to the jury was in error." Additionally, he argues that the introduction of the items of correspondence was harmful error because the house was jointly occupied and themail evidence provided "an additional factor to satisfy a claim of constructive possession." We disagree.

At trial, appellant raised a hearsay objection to the introduction of items of correspondence, addressed to him, that were recovered from one of the bedrooms. He cites United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992), in arguing that the trial court erred in allowing the admission of these items of mail. In Patrick, the federal court found that the admission of a television sales receipt to prove a defendant's home address constituted error. The appellate court determined that the "receipt so used constituted a statement, namely Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay." Id. at 1000. The court also found that as presented, the receipt did not fit within an exception.

The District of Columbia Court of Appeals then had to decide whether the error was harmless. They concluded that it was not, even though "the receipt, when properly redacted, was admissible for the non-hearsay purpose of showing that a document bearing Patrick's name was recovered from the bedroom." Id. at 1003. The reason they found it was not harmless was because of the "otherwise thin trial evidence against Patrick," and the fact that the prosecutor made more than one reference to the receipt in his closing argument. Id.

It is not necessary for us to decide whether we agree with the District of Columbia court's hearsay analysis because even if the items of correspondence were erroneously admitted into evidence, we find the error to be harmless under the circumstances of this case. Here, appellant was present at the scene, and unlike the situation in Patrick, supra, appellanthimself signed the consent-to-search form. It was introduced into evidence, and it authorized the police officers "to conduct a complete search of my premises located at 3103 Zion." (Emphasis added.) In addition, Officer Jackson testified that he took personal information from appellant and that appellant told him that he lived at 3103 Zion Street. Furthermore, the Entergy receipt recovered from the same bedroom did not show an address, but it did show appellant's name. In Patrick, supra, the court stated that "the receipt, when properly redacted, was admissible for the non-hearsay purpose of showing that a document bearing Patrick's name was recovered from the bedroom." Finally, the prosecutor only mentioned the items of correspondence once in his closing argument, also noting the consent form and appellant's comments to Officer Jackson.

Affirmed.

Pittman and Griffen, JJ., agree.