Sean William Starks a/k/a Shawn Starks v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

SEAN WILLIAM STARKS

aka SHAWN STARKS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-39

February 6, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-954]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

REVERSED AND REMANDED

Shawn Starks was found by a jury to be guilty of the crimes of possession of marijuana with the intent to deliver, possession of drug paraphernalia, and maintaining a drug premises. He was sentenced to serve a total of eighteen years in the Arkansas Department of Correction. Though Starks was also charged with possession of cocaine with the intent to deliver, the jury was unable to reach a decision on that count. Starks brought an appeal from these convictions, arguing that the trial court erred by denying his motion to suppress evidence seized during a warrantless search of his residence. On February 7, 2001, however, we ordered rebriefing of this case, which caused a delay in the disposition of this appeal.

In the interim, this court received appellant's appeal from his retrial and convictionon the charge of possession of cocaine with the intent to deliver. See Starks v. State, 74 Ark. App. 366, 49 S.W.3d 122 (2001). In Starks, we reversed his conviction, concluding that because the police unlawfully searched the residence, the trial court erred in refusing to suppress items the police seized in the residence.

In the current appeal, appellant again challenges as error the court's denial of his motion to suppress. The State, however, contends that the challenge was not preserved for appellate review with regard to some of the contraband found in the residence because Starks did not specifically refer to that contraband at the suppression hearing. We think, however, that the State frames the issue too narrowly. This appeal involves a challenge to the legality of a presumptively unreasonable warrantless entry into a private home, with the burden being on the State to prove that the warrantless activity was reasonable. McFerrin v. State, 344 Ark. 671, 678, 42 S.W.3d 529, 534 (2001). That issue was squarely presented to the trial court.

Starks controls the issue raised here, and consequently we likewise hold that the search of the residence was unlawful. The State, however, argues that our earlier decision does not require this court to reverse and remand Starks's convictions in this case. Citing Chambers v. Maroney, 399 U.S 42 (1970), the State notes that a court's error in admitting evidence seized in violation of a defendant's Fourth Amendment rights may be rendered harmless beyond a reasonable doubt. The Arkansas Supreme Court has often cited Chapman v. California, 386 U.S. 18 (1967), for the proposition that some constitutional errors are subject to a harmless-error analysis and has held that, to conclude that a constitutional erroris harmless, the appellate court must excise the improperly admitted material and determine whether it is beyond a reasonable doubt that the error did not contribute to the verdict. See, e.g., Criddle v. State, 338 Ark. 744, 749-50, 1 S.W.3d 436, 439-40 (1999). The State, without addressing the charge of maintaining a drug premises, directs us to Starks's testimony at trial and asserts that his remarks amounted to a judicial confession to the charges of possession of marijuana with the intent to deliver and possession of drug paraphernalia. Thus, the State reasons that, even after excising the improperly admitted evidence, this court should conclude beyond a reasonable doubt that the error did not contribute to the verdicts on these two charges. We disagree.

The crime of maintaining a drug premises requires proof that Starks knowingly kept or maintained a dwelling that is resorted to by persons for the purpose of using, obtaining or keeping controlled substances. Ark. Code Ann. § 5-64-402(a)(3) (Repl. 1997). The crime of possession of drug paraphernalia requires proof that Starks used, or possessed with the intent to use, drug paraphernalia to introduce into the human body a controlled substance. Ark. Code Ann. § 5-64-403(c)(1)(A)(i) (Supp. 2001). For the final charge, the State had to establish that Starks possessed a controlled substance, marijuana, with the intent to deliver. Ark. Code Ann. § 5-64-401(a) (Supp. 2001).

A fair reading of Starks's testimony at trial does not permit this court to conclude that the illegally obtained evidence did not contribute to the verdicts. The illegally obtained evidence included approximately four ounces of marijuana, several ounces of cocaine hydrochloride, a set of digital scales with cocaine residue, and some plastic baggies. ThoughStarks admitted that he possessed an amount of marijuana, he did not admit to possessing the large quantity of illegally seized marijuana presented to the jury. The amount he admitted he possessed was far less than the amount necessary to establish the rebuttable presumption that he intended to deliver the marijuana, Ark. Code Ann. § 5-64-401(d) (Supp. 2001), and he did not admit that he intended to deliver that marijuana. Hence, we cannot say that, beyond a reasonable doubt, the court's error did not contribute to the jury's verdict on this charge. Further, while admitting ownership of the baggies and the scale, Starks did not admit to possessing drug paraphernalia with the intent to use it, and because he did not admit to possession of the large quantities of marijuana or cocaine, we again cannot say that, beyond a reasonable doubt, the court's error did not contribute to the jury verdict on this charge. Finally, given that Starks did not confess to the crimes of possession of drug paraphernalia or possession of marijuana with the intent to deliver, and given his denial of ownership of the cocaine and the lack of an admission that he possessed the large quantity of marijuana found in the residence, we cannot say that the court's error did not contribute to the jury verdict on the charge of maintaining a drug premises. Thus, we conclude that the trial court's error in admitting the illegally obtained evidence was not harmless beyond a reasonable doubt, and we reverse and remand this case for a new trial.

Reversed and remanded.

Vaught, J., agrees.

Griffen, J., concurs.

Wendell L. Griffen, Judge, concurring. I agree with the decision to reverse. However, I write separately to express my concern regarding the shifting and disingenuous arguments asserted by the State in the course of appellant's appeals.

The State initially charged appellant with 1) simultaneous possession of drugs and firearms, 2) possession of a controlled substance with intent to deliver (to wit cocaine), in an amount greater than 400 grams, 3) possession of a controlled substance with intent to deliver (to wit marijuana), 4) possession of drug paraphernalia, 5) maintaining a drug premises, and 6) possession of a firearm by certain persons. The charges of possession of a firearm by certain persons and simultaneous possession of drugs and a firearm were nolle prossed before trial. As the principal opinion states, appellant challenged the legality of the search and seizure that resulted in his prosecution by moving to suppress all evidence seized. At the suppression hearing, the State argued that the warrantless search was justified as an exigent circumstance. Relying on Rule 14.3 of our Rules of Criminal Procedure, the State asserted that the officer's second entry into the home was justified because the officer was attempting to locate the 40-caliber weapon to secure the scene.

At trial, appellant moved for a directed verdict on the offense of maintaining a drug premises. He argued that Crystal Starks testified that the home belonged to her and that it was leased in her name. As such, he contended that his periodic presence in the home did not rise to the level of evidence needed to convict him of maintaining a drug premises. The State countered that appellant testified that he stayed with Crystal Starks, and that the officer testified that the house belonged to appellant. The court denied appellant's motion, and appellant was convicted of maintaining a drug premises, possession of marijuana with intentto deliver, and possession of drug paraphernalia. The court declared a mistrial regarding the possession of cocaine with intent to deliver.

On appeal, appellant argued that no exigent circumstances justified the officer's re-entry into the residence. Notwithstanding its prosecution of appellant for maintaining a drug premises at the residence and its argument at trial that Crystal Starks's testimony, as well as Officer Tyrell's testimony, demonstrated that the house "belonged" to appellant, the State asserted for the first time on appeal that appellant lacked standing to question the validity of the search.1 In remanding the case for rebriefing, we observed that certain aspects of the case were troubling. In particular, we noted that the State was raising standing for the first time on appeal although the testimony of the State's own witness appeared to establish that appellant had a reasonable expectation of privacy in the residence.

Appellant was subsequently re-tried and convicted of possession of cocaine with intent to deliver. In the interim between our order for rebriefing and now, appellant's companion case concerning his conviction for possession of cocaine with intent to deliver was brought before our court. Again, the State raised standing for the first time on appeal. We reached the merits of the appeal and held that the State's argument was not persuasive, given the fact that the State prosecuted appellant for maintaining a drug premises. We notedOfficer Tyrell's testimony that the residence belonged to appellant, and Crystal Starks's testimony that appellant was a frequent overnight guest as evidence that appellant had a reasonable expectation of privacy. We then held that the search was not justified under Rule 14.3, and reversed and remanded to the trial court. See Starks v. State, 74 Ark. App. 366, 49 S.W.3d 122 (2001).

In the present appeal, the State has abandoned its standing argument as well as the argument that Rule 14.3 provided justification for Officer Tyrell to re-enter the residence. However, it now asserts that appellant's motion to suppress did not specify the particular evidence that appellant sought to have suppressed and, consequently, that the motion did not challenge the suppression of all the evidence seized from the house. For good measure, the State includes an argument that any error was harmless.

Perhaps some observers will view the State's course of conduct throughout this appeal as commendable and consistent with the notion of zealous advocacy. I do not. There is nothing commendable about a party advancing one position at trial and then asserting an altogether inconsistent position on appeal. That is what the State did when it argued that appellant lacked standing to challenge the search by Officer Tyrell on appeal after prosecuting appellant for maintaining a drug premises and arguing that the house "belonged" to him.

Further, there is nothing commendable about the State's position that appellant's suppression motion did not cover the drug paraphernalia and marijuana upon which his conviction was based. Appellant's suppression motion plainly stated that he sought tosuppress all evidence seized. The State never questioned the clarity or specificity of the suppression motion before the trial court, nor did the State even hint that it viewed the suppression motion as covering some seized items but excluding others. There was but one suppression motion. It explicitly challenged the search and seizure of all evidence. Any suggestion that it was intended to cover a fraction of the seized items is more than a fiction, it is a falsehood.

The Comment appended to the Arkansas version of Rule 3.8 of the Model Rules of Professional Conduct - the ethical code promulgated by our supreme court to govern how law is practiced - begins with this sentence: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. I hold the view that disingenuous arguments are never consistent with advocacy. I am even more convinced that they are abhorrent to any notion of justice when advanced by a "minister of justice." One need not torture the truth to be a zealous prosecutor. Waging a "war on drugs" is no excuse for waging a war on truth and justice.

1 I recognize that our decisions in Richard v. State, 64 Ark. App. 177, 983 S.W.2d 438 (1998) and Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998), allow the State to argue standing for the first time on appeal. However, I refer to the State's standing argument to emphasize the argument's inconsistency with the State's position at trial, i.e., that Starks had a significant connection to the residence such as to sustain a conviction for maintaining a drug premises.