Phillip Parmley v. State of Arkansas

ar03-071

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

CACR03-71

DIVISION IV January 14, 2004

PHILLIP PARMLEY AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CR01-529-I]

V. HON. JOHN HOMER WRIGHT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED and MOTION GRANTED

Wendell L. Griffen, Judge

This appeal arose from the criminal conviction of Phillip Parmley in Garland County Circuit Court. Appellant received a sentence of thirty years' imprisonment for possession of methamphetamine. His counsel filed a no-merit brief. Appellant filed pro se points for reversal, namely (1) that the trial court erred by allowing police testimony concerning his spontaneous statement; (2) that the police testimony should have been corroborated; (3) that it was error not to have a suppression hearing and that he had ineffective counsel; (4) that it was error to allow the chemist's testimony; and (5) that there was prosecutorial misconduct. We affirm and grant counsel's motion to be relieved as counsel.

On August 3, 2001, Hot Springs Police Officer Jerry Freeman saw a suspicious vehicle with a license plate attached that did not match the make or model of the vehicle. Freeman initiated a traffic stop. The driver of the car was appellant. The car was found to be stolen and appellant's driver's license had been suspended. Also, appellant had outstanding warrants for his arrest on file. Freeman accordingly arrested appellant and conducted an inventory search of appellant's vehicle. In the course of the search, Freeman found a small, acorn-shaped plastic container attached to the key ring appellant had given to Freeman. Inside that container Freeman found three small bags. Two of the bags contained a substance that the officer suspected was marijuana. The third bag contained a brown, sticky substance.

When another officer arrived at the scene, Freeman remarked, "Looks like we have some heroin here." At that point, appellant asserted that it was not heroin but methamphetamine. Freeman later testified that he had directed his remarks to the second officer, not to appellant, and that he did not question Freeman about the substance before or after his remark.

In addition to the suspected controlled substances, Freeman found a long-bladed knife near the driver's seat. In the trunk, Freeman found materials he suspected to be narcotics-related paraphernalia. The police transported appellant to the Garland County jail where he was detained until he was released on bond. Appellant gave his address to the jail personnel as 700 Detroit, Hot Springs, Arkansas.

Appellant was scheduled to appear before the Garland County Circuit Court on October 29, 2001, for arraignment. Notice had been provided to the address at 700 Detroit, Hot Springs, Arkansas. The notice was returned with a notation indicating that no such number existed. Appellant did not appear for his arraignment. The trial court consequently issued a bench warrant for his arrest.

On March 25, 2002, police arrested appellant in Panola County, Texas, and returned him to Arkansas. On April 8, 2002, appellant finally appeared before the trial court, received appointed counsel, and was arraigned on the charges of possession of controlled substance, theft by receiving, and failure to appear. The State later amended the charges to include habitual offender with four or more previous convictions. The State eventually requested and obtained a nolle prosequi order on the charge of theft by receiving. On September 25, 2002, a trial took place on the charge of possession of controlled substance. The trial on the charge for failure to appear was continued until a later date, as requested by appellant.

Prior to trial, appellant moved to dismiss the charges for lack of speedy trial. The trial court denied that motion. Appellant also moved to exclude a statement he had made to Freeman concerning the controlled substance found in a bag. The trial court denied that motion as well.

During trial, counsel for appellant objected to the introduction of two packets of marijuana found in the car along with the methamphetamine and to the introduction of the report from the Arkansas Crime Laboratory. He also objected to any testimony that appellant had simultaneously possessed marijuana and methamphetamine. He also objected to the introduction of the knife and the introduction of the suspected narcotics-related paraphernalia found in the trunk of the car. The trial court barred the admission of the marijuana, the knife, and the paraphernalia, but allowed testimony concerning the marijuana and the lab report. The trial court also instructed the jury that the presence of marijuana was not to be considered as proof of guilt on the charge of possession of methamphetamine. At the close of the State's case, counsel for appellant moved for directed verdict and renewed all previous motions at the end of the defense's case. The trial court denied the motion for directed verdict and maintained its rulings on all other motions. From the resulting conviction appellant now brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1) (2003), counsel for appellant filed a brief asserting that there are no meritorious issues to be raised in this appeal and requesting that he be relieved as counsel of record. Appellant filed a pro se brief, pursuant to Ark. Sup. Ct. R. 4-3(j)(2) (2003), raising the five points mentioned supra. In the following, we address all points relevant for this no-merit analysis.

Denial of Directed Verdict

Counsel for appellant argues that there was no error in denying appellant's motion for directed verdict. We address this argument first, even though counsel did not, because of double-jeopardy concerns. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). A motion for directed verdict is a challenge to the sufficiency of the evidence. Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002). We test the sufficiency of the evidence by asking whether the verdict is supported by substantial evidence. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Evidence is substantial if it is of sufficient force that it would compel a conclusion without speculation or conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). We review the evidence in the light most favorable to the State and only consider the testimony that tends to support the conviction. Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001). In so doing, we defer to the fact finder's determination of witness credibility. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000).

Our supreme court has stated in an extensive discussion on what constitutes possession of a controlled substance under Ark. Code Ann. § 5-64-401 (Supp. 2003):

The cases we have discussed all drive toward the same logical point, whether the rationale is that the amount of a controlled substance is either (1) sufficient to permit knowledge of its presence without the need for scientific identification or (2) sufficient to be useable in the manner in which such a substance is ordinarily used. The intent of the legislation prohibiting possession of a controlled substance is to prevent use of and trafficking in those substances. Possession of a trace amount or residue which cannot be used and which the accused may not even know is on his person or within his control contributes to neither evil.

Harbison v. State, 302 Ark. 315, 322, 790 S.W.2d 146, 150-51 (1990).

At trial, counsel for appellant moved for a directed verdict on the basis that the State had failed to prove appellant's knowledge of the substance's nature and on the basisthat the State had not proved that the amount possessed was useable. The trial court denied the motion on the basis that appellant's knowledge or lack of knowledge was a jury question, that appellant had admitted knowledge of the substance when he identified the substance to the investigating police officer, and that the lab technician had testified that the amount recovered was useable and measurable.

We hold that there was no error in the trial court's denial of the directed verdict. Officer Freeman testified that he had found a substance in a small container and that he suspected the substance to be heroin. He further testified that he remarked to another officer that he thought it was heroin and that appellant voluntarily explained that it was not heroin but in fact methamphetamine. In addition, the jury had available the testimony of the state crime laboratory technician who testified that the amount retrieved was a useable and measurable amount. She testified that she could weigh the substance, see it with the naked eye, and that she could separate the methamphetamine from the other substances in the sample provided. On this basis, we are unable to find error in the trial court's denial of the directed verdict because the jury could find that appellant knowingly possessed a useable amount of methamphetamine.

Speedy Trial

Counsel for appellant argues that there was no violation of the speedy trial rule. Arkansas Rule of Criminal Procedure 28.1(b)(2003) requires the State to try a criminally accused within twelve months from the time provided in Ark. R. Crim. P. 28.2. Rule28.2 generally provides for the twelve months to run from the time the charge is filed. Once the twelve-month period has passed without a trial, the State must prove that the delay was the result of the defendant's conduct or was otherwise justified. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

In this case, appellant was arrested on August 3, 2001. His trial did not take place until September 25, 2002. However, appellant was absent through his own fault from October 29, 2001-when he should have been present for arraignment-until March 11, 2002-when he was arrested in Panola County, Texas. Thus, appellant was absent in excess of four months. The trial court did not specifically note that the time delay was excluded for purposes of speedy trial considerations. See Smith v. State, 347 Ark. 277, 61 S.W.3d 168 (2001) (holding that a trial court must set forth excluded periods in a written order or docket entry). However, the trial court did establish a similar contemporaneous record when it immediately issued a warrant for appellant's arrest for failure to appear and when it set a hearing to determine whether bond should be forfeited. See Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002) (holding that contemporaneous records similar to the required written order setting forth excluded periods are sufficient for purposes of speedy trial considerations). We hold that the speedy trial rule was not violated because appellant received his trial on September 25, 2002, not quite two months after his initial twelve-month period from the date of his first arrest had passed and because appellant had caused a delay in his proceedings by staying absent for more than four months. Consequently, it is clear that he received his trial well within the allowable time, considering the four-months delay caused by his own fault.

Denial of Motion in Limine

Counsel for appellant argues that there was no error in denying appellant's motion in limine concerning appellant's statement identifying the substance found in one bag as methamphetamine. However, appellant argues in his pro se brief that the trial court erred by allowing police testimony concerning appellant's statement. We review a trial court's rulings on motions in limine by conducting 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. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).

The relevant facts are quickly related. When Officer Freeman saw the sticky, brown substance in one of the small plastic bags hanging in a container off the key chain appellant was using at the time, he remarked to another police officer that the substance appeared to be heroin. Appellant, at that time already in custody, had his back turned to Freeman. Appellant corrected Freeman and stated that it was not heroin, but methamphetamine. We find no error in admitting testimony concerning appellant's statement. A suspect's spontaneous statement, even if made in police custody, is admissible against him. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). The spontaneous nature of such a statement removes the issue from the usual Miranda-type analysis. Id. The spontaneous statement is admissible precisely because it is not the result of police compulsion or coercion. Id.

Here, appellant undertook to inform Freeman of the precise nature of the substance in question without having been asked to do so. There is no evidence before us that the police did anything coercive or otherwise compelling to obtain such information from appellant. One officer simply remarked on the substance in question to another officer. Appellant's admission came as a spontaneous statement. Therefore, it was not error to allow testimony concerning appellant's admission.

Appellant's Objection Concerning the Arkansas State Crime Laboratory Report

Counsel for appellant argues that there was no error in allowing the Arkansas State Crime Laboratory Report into evidence. During trial, counsel for appellant objected to the introduction of the report on the basis that it was cumulative because the lab technician had already testified regarding its content. In addition, the report also contained information concerning the marijuana found. The trial court allowed the report into evidence as part of the res gestae of the case.

On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). In Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000), our supreme court held that evidence of drug use and drug dealing was clearly part of the res gestae of the crime where it wasintermingled and contemporaneous with the commission of the crimes charged.

The circumstances of the present case indicate that a single container in the possession of appellant held two packets of marijuana as well as methamphetamine. Appellant was only on trial for possession of methamphetamine. However, the extremely close proximity of the two different substances as well as the fact that they were both illegal substances renders them strongly related. They were in the container at the same time. Moreover, the trial court admonished the jury that evidence of marijuana possession was not to be considered as evidence of appellant's guilt on the charge of possession of methamphetamine. In addition, as already discussed, the jury had before it strong evidence, particularly appellant's own identification of the substance determined to be methamphetamine, that appellant in fact was guilty of possessing methamphetamine-regardless of the lab report's reference to marijuana. Therefore, we do not find any error.

State's Objection to Testimony Concerning Theft by Receiving and Owner of Car

Counsel for appellant argues that there was no error in sustaining the State's objection to appellant's attempts to elicit police testimony concerning the status of appellant's charge of theft by receiving as well as police testimony concerning the criminal record of the owner of the car appellant was driving at the day of his 2001 arrest. During cross-examination, counsel for appellant tried to elicit testimony from Officer Freeman concerning whether the charge of theft of property by receiving had been nolle prossed, and whether the registered owner of the car in which appellant had been found had a history of drug possession charges. The State objected on the grounds that Freeman did not have personal knowledge of the status of the theft of property by receiving charge and that Freeman had previously testified that he had no knowledge of whether the registered owner of the car had a criminal history. The trial court sustained the State's objections.

We find that the trial court was not abuse its discretion in so doing. A witness must have personal knowledge of a matter in order to be allowed to testify accordingly. Ark. R. Evid. 602. It is clear that Freeman did not know whether other, related charges had been nolle prossed, or whether the registered owner of the car in question had a criminal history. In addition, both attempted elicitations appear irrelevant to the charge of possession of methamphetamine.

Appellant's Rule 803(1) Argument Concerning Freeman's Testimony

Appellant argues pro se that the trial court erred in allowing Freeman's testimony concerning his statement identifying the methamphetamine. According to appellant, Freeman should not have been allowed to testify about his spontaneous statement-the one identifying the substance in question as methamphetamine-because Ark. R. Evid. 803(1) somehow should preclude Freeman's testimony. Rule 803(1) states:

(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Appellant seems to argue that he could not have made a present-sense-impression statement because he had his back turned to Officer Freeman at the time that Freeman was investigating the contents of the bags in question. This argument appears nonsensical because the rule clearly provides for perception other than visual observations. There is nothing in the record suggesting that appellant was unable to perceive the event as it unfolded, regardless of whether he could actually see it or not. He overheard Freeman's remark to another officer that the substance before him might be heroin. Appellant then chose to inform Freeman of the correct nature of the substance.

In addition, the State is correct in pointing out that we cannot consider arguments raised for the first time on appeal. Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). As appellant's point is indeed one raised for the first time on appeal, we decline to further consider it.

Denial of Suppression Hearing and Ineffective Counsel

Appellant argues pro se that it was error to deny him the benefit of a suppression hearing and that he had ineffective counsel because his counsel failed to request such a hearing. A hearing is mandatory on a motion to suppress. Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001). Appellant never filed a motion to suppress, however. He simply submitted a motion in limine instead. While it is not wrong to use a motion in limine for such purposes, we cannot now say that it was error to deny appellant a proper suppression hearing.

In addition, appellant's apparent claim that his counsel was ineffective for not filing a suppression motion is barred. A claim of ineffective assistance of counsel may not be raised on direct appeal unless it was first considered by the trial court. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996). Appellant did not inform the trial court of his claim of ineffective counsel.

Qualification of State Crime Laboratory Chemist

Appellant argues pro se that the chemist was not qualified to give her opinion as an expert witness. Appellant makes this argument for the first time on appeal. Consequently, we cannot address it now. Rodgers v. State, supra. In addition, we point out that appellant stipulated to the crime lab technician's qualifications as an expert witness at trial.

Prosecutorial Misconduct

Finally, appellant argues pro se that there was prosecutorial misconduct warranting reversal. Appellant claims that the misconduct occurred when the prosecutor stated in his closing argument that the plastic bag seized from appellant was full of methamphetamine. Thus, the prosecutor allegedly misled the jury in that he gave the jury the impression that appellant actually possessed a useable amount of methamphetamine even though the crime lab technician was not qualified to testify as an expert. In the same vein, appellant argues, the prosecutor essentially gave his personal opinion that appellant's guilt was uncontroverted and that he appealed to the jury to act as the conscience of the community.

At trial, appellant objected to the State's characterization of the crime lab technician's testimony, but failed to make the specific prosecutorial-misconduct arguments he is now raising for the first time on appeal. Again, we cannot consider such arguments. Rodgers v. State, supra.

Affirmed and motion granted.

Gladwin and Roaf, JJ., agree.