Edward Moore and Tammy Moore v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

EDWARD MOORE AND

TAMMY MOORE APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-724

April 9, 2003

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR2001-154]

HONORABLE EDWARD T. SMITHERMAN, JUDGE

AFFIRMED

Appellants Edward and Tammy Moore, who are husband and wife, were found guilty in a jury trial of manufacturing a controlled substance (methamphetamine) and simultaneous possession of drugs and firearms. As a consequence, they were both sentenced to concurrent terms of ten years in prison and fined $30,000. Appellants argue on appeal that the trial court erred in denying their motion to suppress evidence seized from their home pursuant to a warrant, and they also contend that the trial court erred in failing to either grant them a continuance or to exclude a document purporting to be a handwritten recipe for making methamphetamine because of an alleged discovery violation. We find no merit in either argument and affirm.

On February 15, 2001, officers executed a search warrant of appellants' home in Hot

Springs. The warrant was issued based on information provided by a confidential informantthat methamphetamine was being manufactured at the residence. The informant was later identified as Lori Johnson, who had been a house-guest of appellants.

After several continuances, the case was set for trial on April 24, 2002. On April 19, appellants filed a motion to suppress the evidence seized in the search; a motion for a continuance; a motion requesting handwriting analysis; and a motion in limine. The basis for the motions for handwriting analysis and continuance was an alleged discovery violation. Appellants argued that the State had disclosed the evidence seized in the search of their home just five days before trial and that the evidence included a handwritten document purporting to be a recipe for methamphetamine. Appellants contended that, because of the late disclosure, a continuance was needed because it was necessary for the handwriting to be analyzed to support their contention that neither one of them had written it. Appellants also argued that a continuance was in order because they wished to consult a chemist to ascertain if the writing was in fact a recipe for making methamphetamine. In their motion in limine, appellants sought to exclude, as not relevant, a letter that was among those items seized from their home. They also complained that the letter, like the purported recipe and other items, had not been turned over to them until five days before trial, and they also requested a continuance for the handwriting to be analyzed should the court not agree with their contention that the letter was inadmissible.

The trial court heard all motions the day before trial. The court granted appellants' motion in limine to exclude the letter, but the court denied the remaining motions.

Appellants first argue that the trial court erred in denying their motion to suppress. Appellants challenge the warrant by contending that the State failed to "validate" the statements contained in the affidavit that were made to establish the reliability of the informant.

Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides that 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. The search warrant in this instance was issued upon the affidavit of Officer Scotty Dodd, an investigator with the Arkansas State Police. In the affidavit, Officer Dodd stated:

The Affiant has developed a professional working relationship with a person whose identity must remain confidential for reasons of safety to his/her person. This individual, hereinafter referred to as C.I., has provided service in the form of information and assistance to the Affiant and other Investigators of the Arkansas State Police for approximately one (1) year. These services have resulted in the issuance of more than ten (10) search warrants, the arrest of at least an equal number of persons for narcotics and other criminal charges, as well as the seizure of substantial amounts of controlled substances.

At the hearing, Officer Dodd testified that he had been introduced to the informant by Investigator Arthur Rath and that this was the first occasion that he had worked with the informant. Dodd further testified that Investigator Rath had informed him about the assistance the informant had provided other officers in the past.

Appellants argue that the statements made by Officer Dodd in the affidavit were misleading because he had no personal knowledge about the services that the informant had rendered in the past and that it was thus incumbent on the State to offer evidence to "validate"or establish the truth of the statements regarding those past services. We find no merit in this argument. It has long been accepted that an officer is entitled to credit for the collective knowledge and information of other officers. See Brown v. State, 259 Ark. 449, 534 S.W.2d 213 (1976). Therefore, it is of no real consequence that Officer Dodd had no first-hand knowledge of the services that the informant had provided other officers in the past. In addition, appellants are mistaken in the belief that it was the State's burden to establish the veracity of the statements contained in the affidavit regarding the informant's past services. If a defendant considers such information to be false, it is his burden to establish by a preponderance of the evidence that the affidavit contains false information. See Franks v. Delaware, 438 U.S. 154 (1978); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996); Wyatt v. State, 75 Ark. App. 1, 54 S.W.3d 549 (2001). In reviewing a ruling denying a defendant's motion to suppress, we make an independent determination based on the totality of the circumstances, and we reverse only if the trial court's ruling is clearly against the preponderance of the evidence. Hudspeth v. State, 349 Ark. 315, 78 S.W.3d 99 (2002). We are unable to say that the trial court's decision is clearly against the preponderance of the evidence.

Appellants' second argument concerns an alleged discovery violation. They contend that the State failed to disclose in a timely fashion the handwritten document purporting to be a recipe for methamphetamine and that the trial court should have either ordered a continuance or excluded the evidence as a sanction for the State's noncompliance with discovery rules.

Rule 17.1(a)(v) of the Arkansas Rules of Criminal Procedure provides that the prosecuting attorney shall disclose to defense counsel, upon timely request, any books, papers, documents, photographs or tangible objects, which the prosecuting attorney intends to use at trial, or which were obtained from or belong to the defendant. The prosecutor must disclose such information in sufficient time to permit the defense to make beneficial use of it. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). However, a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999). When a party fails to comply with a discovery rule, the court may exercise any of the following options: order that party to permit discovery or inspection of materials not previously disclosed; grant a continuance; prohibit the party from introducing the material; or enter another order that the court deems proper under the circumstances. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). The standard of review for imposing sanctions for discovery violations is whether there has been an abuse of discretion. Id.

The record discloses that the evidence seized from appellants' home was kept by the police in an evidence locker. However, photographs of the evidence were taken and made available to appellants at least four months before trial. Five days before trial, the evidence was delivered to the prosecutor, who informed appellants' counsel that the evidence had been received. In arguing that the State had violated the discovery rules, appellants' counsel stated that he did not see the photograph of the purported recipe and was unaware of its existence until he inspected the evidence at the prosecutor's office five days before trial. We find noabuse of discretion in the trial court's decision because the record does not indicate that the State committed a discovery violation. Although the evidence was retained by the police, the State made available to appellants photographs of the evidence long before trial. We agree with the State that it is not a discovery violation simply because the original documents were not seen five days before trial, particularly where the defense makes no request for the State to produce the actual documents for inspection. See Marts II v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).

Affirmed.

Hart and Bird, JJ., agree.