Robert W. Schneider, Jr. v. State of Arkansas

ar02-771

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ROBERT W. SCHNEIDER, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-771

SEPTEMBER 3, 2003

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, FORT

SMITH DISTRICT, [NO. CR-201-373]

HONORABLE J. MICHAEL

FITZHUGH, JUDGE

REVERSED AND REMANDED

John B. Robbins, Judge

Appellant Robert William Schneider, Jr., was convicted by a jury of possession of drug paraphernalia with intent to manufacture methamphetamine, and sentenced to seven years in prison. He now appeals, arguing that there was insufficient evidence to support his conviction. Mr. Schneider also argues that the trial court erred in failing to grant his motion to suppress contraband seized during a search of his apartment. Finally, Mr. Schneider argues that the trial court erred in refusing to admit the testimony of two defense witnesses. We disagree with appellant's challenge to the sufficiency of the evidence, but reverse and remand on the basis that the trial court erred in disallowing the testimony of defense witness Danielle Fugate. In addition, we remand for the trial court to reconsider appellant's motion to suppress.

Linda Lane testified for the State at the suppression hearing. She stated that she manages the Orleans Townhouses in Fort Smith. In late February 2001, Mr. Schneider was in a moving truck with his four children and inquired about renting an apartment. According to Mrs. Lane, Mr. Schneider was allowed to move in to one of the apartments and paid $25 for the last two days of February, as well as a $250 deposit. On March 6, 2001, Mr. Schneider paid $375 in rent to cover the month of March.

Mr. Schneider was arrested on unrelated charges on March 27, 2001. Mrs. Lane testified that because his rent was not paid by April 6th, she went to the sheriff's office to serve an eviction notice and was informed that Mr. Schneider remained in jail and would be served the eviction notice there. Mrs. Lane indicated that, before Mr. Schneider's arrest, he had a constant stream of company coming and going from his apartment.

On April 7, 2001, Donna McGhee was looking for an apartment to rent, and Mrs. Lane showed her the apartment that was rented to Mr. Schneider. Mrs. Lane testified that the apartment was filthy and "stunk to high heaven." She further testified that while she was showing Ms. McGhee the upstairs bedroom, she opened the closet and found two burners, hot plates, several bottles, and other items. Ms. McGhee testified that her ex-husband is a police officer and that she thought they had found a methamphetamine lab. Mrs. Lane called the police and reported what she had found.

Officer Doug Brooks received the call from Mrs. Lane and arrived at the scene to investigate. He entered the apartment without a search warrant, and upon going upstairs he observed what appeared to be a methamphetamine lab. Officer Travis Watkins also found items that he associated with a methamphetamine lab, and thereafter obtained a search warrant. Officer Watkins testified that during the search the police found numerous items used to manufacture methamphetamine, including mason jars containing liquid, several other items containing residue, and all kinds of chemicals. Officer Watkins stated that most of the contraband was found in open areas, and some was found in the closet.

At the conclusion of the suppression hearing, Mr. Schneider moved to suppress the seized contraband, arguing that the police did not have the right to conduct a warrantless search of his apartment, and that any permission given to the police by appellant's landlord was invalid. The trial court denied the motion, and the case proceeded to trial.

Mrs. Lane testified again at appellant's jury trial, and her testimony was substantially the same as that given at the suppression hearing. She also testified that, from the time of Mr. Schneider's arrest on March 27, 2001, until she showed the apartment on April 7, 2001, she did not notice any traffic around the apartment and that "nobody came over there." Mrs. Lane's husband corroborated this testimony, and stated that after Mr. Schneider's arrest several people came by and asked him if they knew where Mr. Schneider was.

Officer Watkins's testimony was similar to his testimony at the suppression hearing. He stated that he was the evidence custodian in charge of collecting evidence. Officer Watkins testified about numerous items of seized contraband, including burners, mason jars and other containers with residue, bottles of acid, tubing, scales, a funnel, syringes, and other paraphernalia.

Gene Bangs, a chemist with the Arkansas State Crime Lab, received and tested the seized items. Some of the items were found to contain phosphorous or organic solvents, and others tested positive for methamphetamine. Mr. Bangs described the ephedrine-reduction method of manufacturing methamphetamine, and stated that the items he received are commonly found in methamphetamine labs. Mr. Bangs stated, "After doing the analysis of all the evidence sent to me, everything needed to manufacture methamphetamine was present except for iodine, but the iodine had been present at some point in time."

Officer Luther Lonetree, a fingerprint examiner for the Fort Smith Police Department, conducted fingerprint analysis on the items of contraband. He testified that Mr. Schneider's fingerprints were found on a container of camp fuel, as well as a bottle, a glass, and a mason jar. The mason jar contained methamphetamine residue. Officer Lonetree acknowledged that he took fingerprints from numerous other items that did not match Mr. Schneider's prints, and stated, "There is no question that the items I just testified to have been handled by another person."

Officer Paul Smith testified that he was present during the search of the apartment and that during the search, Mr. Schneider's wife, Jill Schneider, approached and asked to get some personal items. Two days later, Officer Smith brought Mr. Schneider from the jail to the police station and conducted an interview. Mr. Schneider stated that his wife had stayed at the apartment and that his girlfriend, Billie Gravel, had a key. Mr. Schneider initially stated that none of his fingerprints would be found on any of the seized items. However, he later spontaneously stated, "My prints are the only ones on that stuff, you don't need to get Jill or Billie involved." Mr. Schneider also told Officer Smith that the officer was right about his earlier suggestion that Mr. Schneider had made the statement that the only way he could keep his family together was to provide his wife with methamphetamine.

Several witnesses testified for the defense. Appellant's cousin, Harry Schneider, testified that before appellant's arrest, the apartment was very clean. He stated he was there the night before the arrest and did not see any contraband. John Hunter, appellant's co-worker, corroborated the fact that the apartment was clean and free from contraband, and further testified that two days after appellant's arrest he went to the apartment and the back door was wide open. Eva Schneider, another cousin, stated that she had done appellant's laundry and never saw any contraband in the upstairs closet. Jennifer Todd, appellant's next-door neighbor, also stated that before the arrest the apartment looked clean. She further stated that before appellant went to jail she did not see an unusual amount of traffic near his apartment. However, the trial court sustained the State's objection to Ms. Todd's testimony that, beginning shortly after appellant's arrest, she observed the landlords, Mrs. Schneider, and several other people she did not know coming and going from the apartment.

There were two defense witnesses who were not permitted by the trial court to testify. The first was Danielle Fugate. In her proffered testimony, Ms. Fugate stated that in late March after appellant's arrest, she went to his apartment and Mike Fite answered the door. Ms. Fugate stated that she had seen Mr. Fite with appellant's wife several times before. She testified:

Mr. Fite opened the door. He had bug eyes. His eyes were big and he was acting weird. He was peeking out the door real slow and just weird, big ole eye balls. He was shaking like he was scared or something. While talking with him, I smelled something weird. I don't know what it was. It was making me sick to my stomach so I had to leave. I don't know what the smell was, it just stunk and made me sick. It was there at the front door.

The other witness was Jamie Rose. In his proffered testimony, he stated that he lived around the corner from appellant's apartment and on the day of appellant's arrest, Jill Schneider asked for help in retrieving items from the apartment. Mr. Rose stated that for the next few days the front door remained open and he saw people that he did not recognize in the area.

Mr. Schneider testified on his own behalf. He stated that his apartment was clean before March 27, 2001. He acknowledged having numerous mason jars, but explained that he used them to eat and drink from. He denied putting any of the suspicious liquids in the mason jars. Mr. Schneider stated that after his arrest, his back door remained unlocked, and that he had no control over the apartment. He stated, "I have never made methamphetamine in that apartment." Mr. Schneider admitted telling Officer Smith that they would find his fingerprints on the items, but explained that he was referring to the mason jars. He denied making the statement about providing his wife with methamphetamine to keep his family together, and testified that he only told Officer Smith, "I guess I could do something like that and get my wife back."

Mr. Schneider's first argument on appeal is that there was insufficient evidence to support his conviction for possession of drug paraphernalia with intent to manufacture methamphetamine. When the sufficiency of the evidence is challenged on appeal, we review this issue before addressing other alleged trial errors. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 68 Ark. App. 106, 2 S.W.3d 712 (1999). In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000).

In support of his challenge to the sufficiency of the evidence, Mr. Schneider asserts that most of the State's exhibits were common household items, and that many of them tested positive for fingerprints that were not his. Although Mr. Schneider's fingerprints were found on some of the items, he argues that this did not prove he was manufacturing methamphetamine because the fingerprints could have been there before the items were used for that purpose. Mr. Schneider had no access to the apartment from March 27, 2001, until the search on April 7, 2001, and there was testimony that the house was clean and contained no lab before his arrest. Mr. Schneider argues that under these circumstances there was no substantial evidence to support his conviction.

Pursuant to Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2001), it is unlawful for any person to possess drug paraphernalia with intent to manufacture methamphetamine. We hold that there was substantial evidence to support Mr. Schneider's conviction for this offense. There was evidence that items used in the manufacture of methamphetamine were found at the apartment rented by Mr. Schneider. There was also evidence that the apartment had frequent visitors prior to Mr. Schneider's arrest, but that the traffic ceased thereafter. Mr. Schneider's fingerprints were found on some of the contraband, and one of these items contained methamphetamine residue. Finally, there was evidence that Mr. Schneider made a statement that the only way to keep his family together was to provide his wife with methamphetamine. While Mr. Schneider denied making any such statement, the trial court is not required to believe the testimony of any witness, especially that of the accused because he is the one most interested in the outcome of the trial. See Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). Viewing the evidence in the light most favorable to the verdict, there was substantial evidence to support Mr. Schneider's conviction.

Mr. Schneider next argues that the trial court erred in failing to suppress the contraband seized from his apartment. A landlord does not have the right to consent to a search of his tenant's house or apartment. Grover v. State, 291 Ark. 508, 726 S.W.2d 268 (1987) (citing Chapman v. United States, 365 U.S. 610 (1961)). In the present case, the police conducted a warrantless entry based on consent given by Mr. Schneider's landlord, and Mr. Schneider argues that the search was illegal because the consent was unauthorized.

Although Mr. Schneider did not pay his monthly rent prior to the search, he relies on Ark. Code Ann. § 18-16-101 (1987), which provides:

(a) Any person who shall rent any dwelling house or other building or any land situated in the State of Arkansas and who shall refuse or fail to pay the rent therefor when due according to contract shall at once forfeit all right to longer occupy the dwelling house or other building or land.

(b) If, after ten (10) days' notice in writing shall have been given by the landlord or his agent or attorney to the tenant to vacate the dwelling house or other building or land, the tenant shall willfully refuse to vacate and surrender the possession of the premises to the landlord or his agent or attorney, the tenant shall be guilty of a misdemeanor. Upon conviction before any justice of the peace or other court of competent jurisdiction in the county where the premises are situated, the tenant shall be fined in any sum not less than one dollar ($1.00) nor more than twenty-five dollars ($25.00) for each offense. Each day the tenant shall willfully and unnecessarily hold the dwelling house or other building or land after the expiration of notice to vacate shall constitute a separate offense.

Mr. Schneider notes that Mrs. Lane posted the eviction notice on April 6, 2001, and contends that he had ten days to vacate pursuant to the above statute. He thus asserts that when the search occurred on April 7, 2001, he maintained a possessory interest in the apartment and Mrs. Lane had no authority to enter or give the police consent to enter. Mr. Schneider further asserts that there was no delinquency in rent when the search was executed because Mrs. Lane held his $250 deposit, which was more than enough to cover seven days' rent.

We agree with Mr. Schneider's argument that Mrs. Lane did not have the authority to consent to a police search of his apartment. The Fourth Amendment protects an individual's legitimate expectation of privacy against unreasonable searches and seizures, and entry into a dwelling in which an individual has a reasonable expectation of privacy must be viewed as illegal unless the State establishes the availability of an exception to the warrant requirement. Starks v. State, 74 Ark. App. 366, 49 S.W.3d 122 (2001). The fact that a rental period has expired or a person is in arrears on rental payments does not necessarily mean that an expectation of privacy in residential premises has terminated. 79 C.J.S. Searches and Seizures § 32 (1995). In other jurisdictions it has been held that where defendants are not evicted by legal process subsequent to expiration of their lease, the residence is still their home and the landlord is not permitted to invite the police to search without a warrant. See People v. Sedrel, 540 N.E.2d 792 (Ill. App. Ct. 1989); State v. Main, 764 P.2d 1155 (Ariz. Ct. App. 1988); Blanco v. State, 438 A.2d 404 (Fla. Dist. Ct. App. 1983).

In Arkansas, Act 615 of 1981 (codified at Ark. Code Ann. § 18-60-301 et seq. (1987)) describes the cause of action for unlawful detainer and prescribes the procedure for carrying out the rights and remedies of the affected parties. No entry by a landlord onto property occupied by another is authorized by Act 615, except after resort to legal process. Gorman v. Ratliff, 289 Ark. 332, 712 S.W.2d 888 (1986). Accordingly, self-help action is prohibited. Id. In the instant case, the legal procedures prescribed by Act 615 were not followed by Mr. Schneider's landlord, and under the facts of this case we hold that Mr. Schneider retained an expectation of privacy in the apartment.

Having decided that the initial entry by the police was illegal, we move to the question of that illegality's effect on the validity of the search warrant. The Fourth Amendment only limits the government; evidence obtained by private illegal searches need not be suppressed. Burdeau v. McDowell, 256 U.S. 465 (1921). The affidavit for the search warrant in this case contained not only observation by police officers as to what was seen in Mr. Schneider's apartment, but also accounts by Mrs. Lane and Ms. McGhee that they recognized what they found in the apartment was a methamphetamine lab. Because these individuals were private citizens, the police could rely on the information they provided in pursuing a warrant. Moreover, our supreme court has held that an affidavit for search warrant need not contain facts establishing the veracity and reliability of nonconfidential informants whose identity is known. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001).

Under these circumstances, Murray v. United States, 487 U.S. 533 (1988), requires application of the "independent source doctrine." The offending information must be excised from the probable-cause affidavit to determine whether the remainder of the affidavit nevertheless supports the issuance of a search warrant. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). The second prong of Murray focuses on the motivation of the officers in obtaining the warrant by determining the relative probative import of the information secured during the illegal search compared to all other information known to the officers. Williams v. State, supra at 221, 939 S.W.2d at 268. While the police officers should not profit from illegal activity, neither should they be placed in a worse position than they would otherwise have occupied. Id. We remand this case for the trial court to apply the standards set forth in Williams v. State, supra, and to reexamine the appellant's motion to suppress.

Mr. Schneider's remaining argument is that the trial court erred in refusing to admit the exculpatory testimony of Danielle Fugate and Jamie Rose. Mr. Schneider contends that the testimony of these witnesses was relevant to show that Michael Fite and Jill Schneider were at his apartment manufacturing methamphetamine and committed the crime during his incarceration.

The supreme court addressed this issue in Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997), and quoted two other jurisdictions as follows:

The Supreme Court of North Carolina stated: A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another's guilt is inadmissible. State v. Wilson, 367 S.E.2d 589 (N.C. 1988).

The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated: [T]he rule does not require that any evidence, however remote, must be admitted to show a third party's possible culpability ... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. People v. Kaurish, 802 P.2d 278 (Cal. 1990).

Id. at 80, 947 S.W.2d at 757. On appeal, we will not reverse a trial court's decision regarding the admission of evidence absent a manifest abuse of discretion. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).

We hold that there was no abuse of discretion in prohibiting the testimony of Mr. Rose because his testimony pertained to events that occurred after the police searched the apartment, and did not point directly to the guilt of a third party. However, we hold that the trial court erred in failing to allow Ms. Fugate to testify because her testimony linked Mr. Fite to perpetration of the crime.

Ms. Fugate testified that, while appellant was incarcerated, she knocked on his apartment door and Mr. Fite answered. According to Ms. Fugate, Mr. Fite had "bug eyes," was acting weird, was peeking out the door, and was shaking as if he were afraid. She smelled an odor that was so strong that it made her sick to her stomach and she had to leave. This evidence should have been admitted because it directly linked Mr. Fite to the methamphetamine lab and, if believed by the jury, was capable of raising a reasonable doubt about Mr. Schneider's guilt.

The State cites Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001), for the proposition that Ms. Fugate's testimony was inadmissible because it showed, at best, that Mr. Fite was an accomplice, and it did not exonerate Mr. Schneider. However, we disagree. In Cox v. State, supra, the appellant was charged and convicted as an accomplice to murder, and the trial court refused to admit a hearsay statement from appellant's accomplice that the accomplice shot the victim. This case is clearly distinguishable because the proffered testimony was not hearsay, and there was never any allegation by the State or evidence that Mr. Schneider acted in complicity with another person. Mr. Schneider's primary defense was that someone else must have taken control of his apartment and introduced the contraband while he was in jail, and the testimony of Ms. Fugate, if believed by the jury, could have helped establish this defense.

Reversed and remanded.

Pittman and Hart, JJ., agree.