Charles Tubby Wilson v. State of Arkansas

ar02-468

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

CHARLES TUBBY WILSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-468

May 7, 2003

APPEAL FROM THE POPE

COUNTY CIRCUIT COURT

[CR-2000-272]

HONORABLE JOHN S.

PATTERSON, CIRCUIT JUDGE

AFFIRMED

Appellant, Charles "Tubby" Wilson, was tried and found guilty of the offenses of manufacture of a controlled substance (methamphetamine), possession of paraphernalia with intent to manufacture methamphetamine, and possession of a controlled substance (methamphetamine) with intent to deliver. He was sentenced as a habitual offender to serve forty years in the Arkansas Department of Correction and to pay a fine of $25,000 on each of the first two convictions, and to serve thirty years and to pay a fine of $15,000 on the third conviction. The court ordered that the sentences run concurrently. We affirm.

For his first point of appeal, appellant contends that his conviction for manufacturing of methamphetamine was not supported by substantial evidence. He does not challenge the sufficiency of the evidence supporting the other convictions. In particular, he argues that the

evidence established that he lacked the present ability to manufacture methamphetamine because no anhydrous ammonia was proven to be at his house, and it was an essential ingredient for manufacturing methamphetamine under the lithium-ammonia method that was used to make the 10.4 grams found on site. We do not address the issue because it was not properly preserved for our review.

Rule 33.1(c) of the Arkansas Rules of Criminal Procedure provides in pertinent part: "A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." (Emphasis added.)

Here, after the State rested its case, appellant moved for a directed verdict on the charge of manufacturing methamphetamine "based upon the insufficiency of the evidence as produced by the State on that charge." The motion was denied. When the defense rested, the motion for directed verdict was renewed "as to the charge of manufacturing a controlled substance, methamphetamine. Defendant believes that the State has failed to put forth sufficient proof to sustain the charge." This motion was also denied.

Despite appellant's arguments on appeal, he did not specify at trial the respect in which the evidence was deficient. We are therefore precluded from addressing the issue. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997).

Appellant discusses his second and third points of appeal together because they are intertwined with respect to the granting of an earlier mistrial and its effect on his right to aspeedy trial. In his second point of appeal, appellant contends that "mistrial in this case was wrongfully ordered in that trial had not begun when the mistrial was granted; nor did appellant, who was acting pro se, ask for same." For his third point of appeal, he contends that "as a result of the earlier mistrial being granted he was brought to trial outside the bounds of the time frame specified by Arkansas Rules of Criminal Procedure 28.1 to 28.3."

As abstracted by appellant, the following colloquy occurred between the court, the State (Mr. Gibbons), defense counsel (Mr. Kirk), and appellant concerning appellant's request to represent himself and the mistrial:

The Court: Mr. Wilson, is Mr. Kirk representing you or assisting you?

Defendant: I have no idea. I hired him as an attorney to get me a bond reduction hearing on a different charge. I wasn't made aware of this charge until I hired him to get me a bond reduction and he come over to the courthouse here about a week ago or something like that and he discovered that there's a charge of manufacturing a controlled substance pending against me.

The Court: Well, we've had a motion to suppress on this charge, haven't we?

Gibbons: Yes, sir.

Defendant: I retained him after he come over here for my bond reduction.

The Court: How long had the motion to suppress been filed?

Kirk: Mr. Finley filed it a few days earlier.

The Court: Was Mr. Finley representing you previously?

Defendant: Yes, sir, he was, for the theft of Victor Wolfe's trailer, which has since been dropped.

Gibbons: Your Honor, he was also representing him on this case here.

The Court: That's what I was thinking that Mr. Finley represented you on this and filed a motion to suppress evidence and then Mr. Finley got out or ya'll fired him and hired Mr. Kirk.

Defendant: I never knew anything about these charges. I never hired Mr. Finley for this manufacturing charge. Like I said, I really wasn't aware of this charge until about two weeks ago.

The Court: Is Mr. Kirk going to be in this with you?

Defendant: I haven't retained him for this; and I'm sure he don't want to work for nothing.

The Court: Well, someone retained him because he's here and ready to go to trial this morning. Have you ever tried a case yourself?

Defendant: No, sir.

(A discussion follows of voir dire and challenges. .... Defendant is not aware of the ins and outs of procedure.)

Defendant: I feel that I'm at a severe disadvantage now because Mr. Kirk knows nothing of my case.

The Court: He's indicated to the Court that he's ready to go and prepared.

Defendant: It's not his life that's on the line, Your Honor. It's mine.

(Discussion ensues of the problems of self-representation. .... Prosecutors note that the charges may be enhanced by the habitual offender statute.)

Kirk: Are you saying you want to represent yourself?

Defendant: Yes, I am.

The Court: Completely or have Mr. Kirk there to help you maybe on some of these procedural things?

Defendant: Yes, I would like to have help on the procedural things. I want to take every precaution to protect myself and preserve the right to appeal.

The Court: Well, you're going to get that whether you represent yourself or with a lawyer; but I just think you're making a big mistake. .... (Court explains the possible problems.)

Defendant: Yes, sir, I understand. I appreciate the concern but I feel that I know and need to bring some issues or to protect some issues or whatever because I was there and I know what happened and what went on and what took place. .... I still feel that I need to protect myself - - can protect myself better than someone and I know he has a lot more experience and he's a lot more educated. But I know there was never no methamphetamine manufactured there. I know I've never manufactured any.

The Court: Why don't we do this? You know, I think you're making a mistake trying to play lawyer in this thing. I don't think you're capable of doing it completely by yourself.

Now I do think Mr. Kirk is versed in your case and I think probably what would be best is for him to assist you and be there to help you on the selection of a jury. Do you have any problem with doing it that way?

Defendant: No, sir, I don't.

The Court: You're satisfied with that arrangement?

Defendant: Yes, sir, I believe so.

The Court: Okay. Let's take up this other thing about his presence in this courtroom this morning.

Kirk: Your Honor, I think the jury would already be prejudiced against him.

The Court: I don't think there's any question about that and I didn't know he was sitting in the courtroom. The court clerk says the courtroom is basically full of the jury. There may be one or two out here in the hall, but they usually come into that courtroom by 9:00 because that's when we have roll call; and the Defendant has on a blaze orange prison apparel shirt and on the back of it in big black letter is Pope County Jail; and I assume if he was sitting at counsel table, the logo on the back of his shirt would be viewed by the jury.

Kirk: Five minutes is plenty of time.

The Court: Are you wanting to ask for a mistrial?

Kirk: Yeah, or for a continuance for another jury panel because of that exposure.

The Court: Well, I think the mistrial will probably be more appropriate. That gives the State up to a year to retry. I'm just afraid to go on.

Kirk: I would so move.

Defendant: I did sit down to the table and then when I got up I walked from the table.

The Court: I had no idea the sheriff's office would put a prison shirt on you.

Kirk: When they said a shirt was coming from the jail, I had no idea it would be this one.

Defendant: I asked them not to do that. They give me the wrong clothes and they give me a shirt that didn't fit. Mr. King sent after another shirt and the jail sent this over.

The Court: What does that do to us? The State has up to a year.

Gibbons: Jim, did you bring this shirt over.

Deputy Jim Davis: Yes, sir.

The Court: There are a lot of cases on things that give the appearance that they are already a criminal and have been convicted. You should just stay away from that.

Kirk: I don't think there would be a speedy trial issue and it would probably be beneficial regarding other issues of Mr. Wilson regarding preparation and so forth.

Gibbons: Your Honor, I would like it on the record that this mistrial wasn't forced by the State. It's being requested by the Defense. Is that right?

Defendant: No, it wasn't forced by the Defense either.

Gibbons: I understand that but I mean what I'm trying to say is - -

Kirk: It was requested by the Defense because of the circumstances.

Gibbons: Which did not have anything to do with the State.

The Court: In other words, the Prosecuting Attorney's office didn't tell them to put a prison garment on him.

Defendant: Oh, no, sir.

Kirk: Like I said, we are not trying to get under the speedy trial rule. The mistrial is requested by the Defense.

The Court: I don't know what else to do. I hate to waste time but I'd be scared to go to trial with it; and I'll declare a mistrial on Defense's motion and the Court will reset it.

(Emphasis added.)

Appellant argues on appeal that the counsel had no authority to speak conclusively for him and that in doing so, the counsel prejudiced his right to a speedy trial, which would have run on October 27, 2000, but because of the mistrial, it was allowed to start running again for another year. He further argues that the trial had not commenced, that a mistrial was therefore not appropriate, and that a continuance or transfer of the case was more appropriate. These arguments, however, were not raised below. We are therefore precluded from hearing them on appeal. Dulaney, supra. Moreover, even if we were to address appellant's argument that his counsel was not authorized to speak for him, which is hard to accept in light of appellant's expressed desire for his help on "the procedural things" and on jury selection, see Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001) (where our supreme court agreed with the State's position that once a defendant invokes his right to self-representation, he may subsequently waive that right when he invites or agrees to any substantial participation by stand-by counsel), appellant was present and did not object tothe mistrial nor to the attorney's handling of the issue. It is well-settled that a party cannot agree with a trial court's ruling and then attack it on appeal. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).

For his fourth point of appeal, appellant contends that "even if the original mistrial was granted on appellant's motion, actions of the minions of the State forced the necessity of the mistrial and therefore the subsequent untimely trial should be laid to the charge of the State." In particular, he argues that because of the State's actions in having him wear prison garb that was then seen by the jury panel, he was forced to choose between "his right to a fair and impartial finder of fact" and his speedy-trial right, and that a continuance should have sufficed with the time being charged to the State and not him. Again, the argument appellant raises on appeal was not raised below. Therefore, we are not able to address it. Dulaney, supra. The trial court granted a mistrial, with no objection from appellant or his counsel. That action started the clock running again, which negates appellant's argument of a speedy-trial violation.

For his final point of appeal, appellant contends that "the drug task force officers engaged in a warrantless pretextual search of his home and that the evidence obtained from it should have been suppressed." He argues that instead of arresting him at the front door and bringing him outside of the house, he was forced back inside and made to lie on the floor, which allowed the officers to see materials that were in plain view and to look behind a couch where someone might hide under the pretext that they were there to arrest two other men in addition to appellant. He further contends that eyewitnesses testified that the officers took other items from his house prior to the search warrant being issued. In conjunction withthis latter argument, he notes that the trial court described the matter as a "swearing match," which indicated that the evidence was evenly balanced and that the State did not meet its burden. We find no merit to his arguments.

In Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003), our supreme court clarified the appropriate standard for review of a suppression challenge: "Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court."

Here, Lieutenant Jim Frost of the Pope County Sheriff's Office testified at the suppression hearing that he was involved in executing the arrest warrant for appellant, Michael Flud, and David Smith on October 27, 1999. He said that he accompanied several other officers to appellant's residence to serve the arrest warrants; that he knocked on the front door and appellant came to the door; that he told appellant he was under arrest; that they were in the living room; and that he placed appellant on the floor and handcuffed him. He said that Officers Kelly and Harper were with him in the residence, a trailer; and that there was a couch to the right of them, a coffee table to their left, and another table in front of them about six to eight feet away. He said that once he got appellant into custody, he took him out of the trailer and another officer transported him to the detention center. He stated that he had his gun drawn when he went to the door because he was serving a felony arrest warrant and he knew the three suspects from the past. He stated that he did not see any areas in or around the residence being searched while he was there.

Task Force Coordinator Scott Harper testified that he and the other officers were there to arrest appellant and two other men. He said that he entered the residence along with Bill Kelly and Bill Glover and that other officers went to the back; that other individuals, including two small children were in the trailer; that while they were arresting appellant, he noticed a corner of the couch was pulled away from the wall "where you could get in behind it"; that one of the officers checked to see if anyone was behind the couch and found a Ruger pistol and a nylon shoulder holster on the floor behind the couch "in that open spot"; that on top of the kitchen table that was within five to six feet of them, was a liquid-wrench false can with the bottom removed; and that inside the can was a syringe cover cap. He said that they still believed Michael Flud or David Smith might be in the trailer, and that they therefore did a quick search of the other rooms in the trailer looking for the two men, but did not find them. He said that he prepared his affidavit for a search warrant that afternoon on the premises; that it did not contain any information other than what he saw in plain view in the immediate area where appellant was arrested; and that he obtained the search warrant later that day. He said no further search was made of the house or the surrounding area until the search warrant was obtained around four o'clock that afternoon.

Delane Hanson, one of appellant's neighbors, testified that he observed the officers approach appellant's residence on the morning of October 27, 1999; that he saw them search areas around appellant's house; that he saw the officers bring bags out of the house; that [the search] happened around one or two o'clock, but that he was not positive about the time; and that the police were still there at four in the afternoon and stayed on past that time.

Brenda Ingram, appellant's sister, testified that appellant called her after he was taken to the detention center; that he asked her "to go lock his house up"; that she got there about 12:30; that there were a lot of police there; and that they were searching the house, the surrounding area, and the vehicles. She stated that she knew the search lasted two days, but that she was there on the first day.

Susan Thompson, a friend of appellant's sister, testified that she was with the sister when she arrived at appellant's house; that they got there around 12:30 and "saw cops everywhere"; that the officers were coming out "with trash bags full of stuff"; and that she saw vehicles in the front yard being searched.

In rebuttal, Aaron Duvall, an investigator with the Pope County Sheriff's Office, testified that he was present on October 27 when the arrest warrant was executed on appellant. He said that he was present at appellant's residence the entire time between the time he was arrested and the time the warrant was executed, and that to the best of his knowledge, appellant's residence was not searched at anytime before the search warrant was obtained.

Our de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court, supports the trial court's denial of the motion to suppress. We find no clear error in the historical facts, and those facts give rise to a reasonable suspicion.

Moreover, the fact that the trial court characterized the evidence as a swearing match simply means that the evidence was sharply contradictory. The State's evidence showed thatno further search was conducted until after the search warrant was obtained, and defense witnesses testified that the officers were searching prior to the time that the search warrant was issued. The trial court obviously determined that the State's witnesses were more credible.

Affirmed.

Robbins and Crabtree, JJ., agree.