James M. Rogers and Brenda D. Rogers v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

JAMES M. ROGERS and BRENDA D. ROGERS

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-458

April 16, 2003

APPEAL FROM THE HOT SPRING

COUNTY CIRCUIT COURT

[CR 2000-119-1]

HONORABLE JOHN W. COLE,

CIRCUIT JUDGE

AFFIRMED

James and Brenda Rogers were both convicted by a Hot Spring County jury of the offenses of attempted manufacture of a controlled substance (methamphetamine) and possession of methamphetamine. On appeal, they contend that the trial court erred in denying their motion to suppress and by allowing the testimony of a rebuttal witness. We find no error; therefore, we affirm.

The evidence in this case was obtained when officers executed a search warrant for appellants' residence and premises for methamphetamine and paraphernalia used in the illegal distribution of controlled substances. When the warrant was issued, officers found not only methamphetamine, but some of the components used to make methamphetamine, as well as over $14,000 in cash. Appellants moved to suppress the evidence found upon the

execution of the search warrant, contending that there was no probable cause to issue the search warrant and that the scope of the warrant was exceeded when the officers took the cash found in the house; after a hearing on appellants' motion, it was denied. At trial, appellants renewed their motion to suppress and added as an additional ground that the officers violated the "knock and announce" rule. These motions were denied. Appellants now raise these same issues on appeal.

When reviewing the trial court's denial of a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances and reverses only if the trial court's ruling was clearly against the preponderance of the evidence. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000).

When obtaining the search warrant, Officer Pat Mahoney took his informant, Scott Bennett, with him to see District Judge Chris Williams. Subsections (b) and (c) of Rule 13.1 of the Arkansas Rules of Criminal Procedure provide:

(b) The application for a search warrant ... shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer.... If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained.... Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

(c) Before acting on the application, the judicial officer may examine on oath the affiants or witnesses, and the applicant and any witnesses he may produce, and may himself call such witnesses as he deems necessary to a decision. He shall make and keep a fair written summary of the proceedings and the testimony taken before him, except that if sworn testimony alone is offered in support of the application, such testimony shall be recorded pursuant to subsection (b) hereof.

Appellants argue that the reliability of the information provided in the search warrant by Bennett was not established by Mahoney, and the fact that Mahoney added the sentence "the informant is known by the Court in providing truthful information" in his affidavit before Judge Williams signed it does not cure this defect. The State counters that Bennett was not a confidential informant whose reliability had to be established because his identity was known when he appeared before the judge and was questioned under oath by him. We agree with the State.

In Stanton v. State, 344 Ark. 589, 594-95, 42 S.W.3d 474, 478 (2001), our supreme court held that "an affidavit for a search warrant need not contain facts establishing the veracity and reliability of nonconfidential informants such as police officers, public employees, victims, and other witnesses whose identity is known .... This is true even when the informant is not a model citizen." (Emphasis added.) In that case, although the informant was referred to in the affidavit for the search warrant as "CI-CCSO-007," her signed written statement was also presented to the judge at the same time as the affidavit. The statement contained the informant's name, address, date of birth, and social security number; due to this information, the supreme court held that she was not acting as a confidential informant whose identity was to be protected.

In the present case, the facts are even more compelling than those presented in Stanton that the informant was not acting as a confidential informant whose identity was to be protected. Here, the judge issuing the search warrant was not merely presented with a written statement containing the informant's identity; rather, the informant was present inperson for the judge to question prior to the issuance of the warrant. In accordance with Stanton, we hold that Bennett's reliability and veracity were not required to be established because he was not a confidential informant.

Appellants further complain of the fact that the judge who issued the search warrant took judicial notice of the informant's truthfulness, and they also contend that the good-faith exception to an invalid warrant is inapplicable in the present case. However, we need not address these contentions in light of our holding that Bennett was not a confidential informant.

Appellants further contend that the officers exceeded the scope of the search warrant when they took over $14,000 from the house because nothing linked the money to methamphetamine or paraphernalia used in its distribution. It is common knowledge that large sums of money are ordinarily found in the illicit drug trade. Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996). Furthermore, it is a rebuttable presumption that all moneys, coin, and currency found in close proximity to forfeitable controlled substances and to forfeitable drug manufacturing or distributing paraphernalia, are presumed to be forfeitable under this paragraph; the burden of proof is upon claimants of the property to rebut these presumptions by a preponderance of the evidence. Ark. Code Ann. § 5-64-505 (a)(6) (Repl. 1997). We find no error on this point.

Appellants also contend that the officers violated the "knock and announce" requirement of the Fourth Amendment when they executed the search warrant. Based upon the testimony presented in the abstract, we cannot agree. At trial, State Trooper MikeThomas testified that he assisted in the execution of the search warrant on appellants' house; that he was the first person inside the door of the house; that Officer Kirk McClenahan had knocked on the door, opened the door, and stood to one side and held the door open for him; and that he announced himself before he entered the house. There is no indication in the abstract that any witness testified as to the length of time between the knock and the officers' entry into appellants' house; therefore, this court cannot determine if there was in fact a violation of the "knock and announce" requirement.

Appellants also assert that the trial court erred in allowing the State to call Doug Hughes as a rebuttal witness. At trial, appellants both testified in their own defense. During her direct testimony, Brenda Rogers testified that she had never before seen the methamphetamine that was found in her house. She also said that the people who worked for her husband were allowed inside her house without supervision, and in hindsight she should not have let them have "free reign" of her house. Likewise, James Rogers testified on direct examination that his employees had complete and unfettered access to his house. He also stated that the drugs found in his house did not belong to him; that he did not know how the drugs got into his house; that he did not do drugs; and that he had never made methamphetamine. On cross-examination, the State asked James Rogers if he and Doug Hughes were in the dope-cooking business together, a question that Rogers denied. On redirect, Rogers again denied ever having knowingly been around methamphetamine.

After appellants' testimony, the defense rested, and the State called Doug Hughes as a rebuttal witness. Hughes testified that he had worked for James Rogers in his concretebusiness and that Rogers usually paid his employees in cash, but he had told Rogers that he would rather have methamphetamine or beer. Hughes testified that Rogers paid him one time with one gram of methamphetamine. Hughes also denied ever putting methamphetamine inside any of appellants' cabinets or in their refrigerator. After Hughes's testimony, James Rogers took the stand again and testified that although he had paid Hughes once with beer, he had never paid him with methamphetamine.

Appellants contend that the trial court erred in allowing Hughes's testimony because it was not true rebuttal testimony and could have been introduced by the State in its case-in-chief. Genuine rebuttal evidence is evidence offered in reply to new matters; evidence is still categorized as genuine rebuttal evidence even if it overlaps with the evidence-in-chief so long as it is responsive to evidence presented by the defense. Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). Our supreme court has held that the prosecution cannot elicit evidence during cross-examination and then seek to rebut that evidence with rebuttal testimony; however, the scope of a rebuttal witness's testimony is accorded wide latitude and will not be restricted merely because it could have been presented on direct. See Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). It is within the trial court's discretion to determine the propriety of rebuttal evidence, and the appellate court will not reverse that determination absent an abuse of that discretion. Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996).

Appellants contend that Hughes's testimony was improper because it was not responsive to testimony elicited during the defense's case. They argue that neither of themsaid anything about distribution of methamphetamine during their testimony, and Hughes's testimony did not contradict anything either of them said on the witness stand. Appellants argue that Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), is not applicable to their case; however, we hold that an analogy can be drawn between Pyle and the present case. In Pyle, the appellant was convicted of possession of cocaine and drug paraphernalia and delivery of cocaine; at trial, he had testified in his own defense that he had no prior knowledge of cocaine being in his house and that he had never sold drugs. The State called a rebuttal witness who testified that he had given auto parts to Pyle in exchange for cocaine and had used cocaine with him. The supreme court held that since the defense was lack of knowledge, the testimony was proper rebuttal testimony. Likewise, in the present case, both appellants testified that they did not know how methamphetamine was found in their house. However, Hughes testified that James Rogers had once paid him with methamphetamine. This testimony certainly rebuts the defense claim of lack of knowledge with regard to the question of possession of methamphetamine. We find no abuse of discretion in allowing Hughes's testimony as a rebuttal witness.

Affirmed.

Griffen and Roaf, JJ., agree.