William C. Swanigan v. State of Arkansas

Annotate this Case
ar03-581

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-581

MARCH 31, 2004

WILLIAM C. SWANIGAN AN APPEAL FROM THE MONROE

APPELLANT COUNTY CIRCUIT COURT

v. [CR2001-130]

STATE OF ARKANSAS HONORABLE HARVEY LEE YATES,

APPELLEE JUDGE

AFFIRMED IN PART; REVERSED

AND REMANDED

Olly Neal, Judge

On October 23, 2001, police officers executed a search warrant on a 2002 Oldsmobile van driven by appellant William Swanigan. During the execution of the search warrant, the officers seized 230 grams of crack cocaine, 14 grams of marijuana, $6,096 in cash, a computer and two cell phones. Appellant was subsequently charged with possession of crack cocaine with intent to deliver and possession of marijuana with intent to deliver. A jury found appellant guilty of all charges. Appellant was sentenced to thirty years in the Department of Correction. On appeal he does not challenge the sufficiency of the evidence to support his convictions. Instead, appellant raises the following points on appeal: (1) the trial court erred when it failed to grant his motion to suppress; (2) the trial court erred when it allowed the drug laboratory supervisor to testify in lieu of the chemist who performed the actual tests on the evidence; (3) the trial court erred when it granted the State's motion to remove an African-American juror during the course of the trial. Because we believe that the State failed in its duty to produce the chemist, we reverse and remand.

In his first argument on appeal, appellant asserts that the trial court erred when it denied his motion to suppress the evidence seized during the search. He argues that the search warrant was defective because the affidavit in support of the search warrant listed an informant by the wrong name and there were no indicia of reliability of the confidential informants. When reviewing a trial court's denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact 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 Arkansas Supreme Court has recognized that, under Franks v. Delaware, 438 U.S. 154 (1978), a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement that was made knowingly, intentionally, or recklessly by the affiant; and (2) the false statement was necessary to a finding of probable cause. Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). The defendant must show that, with the false material set to one side, the remaining content fails to establish probable cause. See Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). The burden of showing that an affiant knowingly and recklessly included a false statement is upon the challenger of the affidavit. Id. Even if this statement was misleading, the remaining content of the affidavit, after exclusion of this statement as required by Franks, supra, is sufficient to establish probable cause. Id.

The affidavit reads:

In the past several months, this Agent has received information from a confidential informant in reference to W.C. Swanigan. CI who has been closely associated with Swanigan said that he knew that W.C. Swanigan was making regular trips to Texas to pick up large volumes of Cocaine and Marijuana. CI further stated that a Cynthia Broadway aka Cynthia Girl, was selling the drugs from her apartment in the housing authority on South Chicago Street. CI stated that W.C. was living with Broadway at that location and he was having her to sell the drugs to keep the heat off of him. CI stated that W.C. has approached him within the last month to purchase (a big one) which is 4.5 ounces of Cocaine. CI stated that Swanigan would go to Texas and would be gone two to three days and when he returned he would have plenty of Cocaine and Marijuana.

Approximately two weeks ago Sarah Johnson met with Sheriff Billy Joe Morris and Lt. Randy Julian. Johnson stated that she was in business with W.C. Swanigan and a celluar [sic] phone business located on First Street in Brinkley. Johnson stated she knew of Swanigan's drug activity and she knew he was dealing drugs from the business from time to time. She stated that she had seen the drugs along with large amounts of money. Johnson said that she had a child by Swanigan and therefore he trusted her. Swanigan told her that he purchased the drugs from a mexican [sic] in Texas because he could get the drugs so much cheaper than he could in Michigan. Johnson stated Swanigan could go get the drugs and supply his connections in Brinkley and in Michigan. Johnson further stated that Swanigan was living with Cynthia Broadway at her apartment on South Chicago Street. She stated that Broadway was selling drugs for Swanigan from her apartment.

[At] [a]pproximately 7:00pm [sic] on 10-22-01, Sheriff Morris received a phone call from a CI that is closely associated with W.C. Swanigan. The CI stated that Swanigan had a load of drugs and he was going to take them to Michigan on 10-23-01. The CI stated they believed Swanigan would be leaving between 4 and 5 AM on 10-23-01 but could not be absolutely sure of what time he would depart from Brinkley. CI stated that Swanigan would be driving a gray mini van with Texas license plate N44L WH. The license plate was ran [sic] through NCIC and returned to a 2002 Oldsmobile van, gray in color being owned by Alamo rent-a-car [sic].

Due to my past experience dealing with drug couriers, I have learned that they transport large quantities of drugs and money in rental vehicles. The purpose of doing this would allow drug couriers to transport drugs and money to avoid law enforcement seizures of their personal vehicles.

W.C. Swanigan was convicted in 1988 of Violation of Uniform Controlled Substance Act in Pulaski County. Swanigan is Currently facing charges in Monroe County Circuit Court for the Sale and Delivery of Crack Cocaine.

At the suppression hearing, special agent Barry Roy of the state police testified that he received the name "Sarah Johnson" from Sheriff Billy Joe Morris. He said that Sheriff Morris had actually talked to Christine Tyson. Roy said that he had mistakenly listed Tyson as "Sarah Johnson." Roy went on to explain that Tyson and appellant co-owned a cell phone business and that Tyson had expressed to Sheriff Morris her concerns that appellant was dealing drugs from the business.

Sheriff Morris confirmed the fact that, in addition to providing Roy with Tyson's name, he also passed along the name Sarah Johnson. He said that he had received the name Sarah Johnson from Tyson. However, during her testimony, Tyson denied passing along the name Sarah Johnson to Sheriff Morris. Tyson did admit that she and appellant have a child and that they co-owned a cell phone business.

Appellant fails to establish that Roy knowingly, intentionally, or recklessly inserted the wrong name. Furthermore, we defer to the trial court on matters of credibility. See Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

Appellant also argues that there was no indication that the informants were reliable. Rule 13.1 of the Arkansas Rules of Criminal Procedure provides:

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. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. 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.

A search warrant is flawed if there are no indicia of the reliability of the confidential informant. Abshure v. State, supra. Furthermore, the conclusory statement, "reliable informant" is not sufficient to satisfy the indicia requirement. Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (2002). There is no fixed formula for determining an informant's reliability. Id. Factors to be considered when determining the reliability of an informant include whether the informant's statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. See Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Additionally, facts showing the informant has provided reliable information to law enforcement in the past may be considered in determining the informant's reliability in the present case. Id. Failure to establish the bases of knowledge of the informant, however, is not a fatal defect if the affidavit 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." Id. at 594, 42 S.W.3d at 478 (quoting Rule 13.1(b)).

The affidavit in the case at bar makes reference to a citizen informant and two confidential informants. It has been consistently held that an affidavit for a search warrant need not contain facts establishing the veracity and reliability of non-confidential informants. Stanton v. State, supra. Therefore, in regards to the citizen informant, the affidavit did not need to contain additional facts tending to establish the citizen informant's reliability.

However, as to the two confidential informants, there needed to be some indicia of their reliability. On its face, the affidavit fails to mention the reliability of the informants. This omission of any indicia of reliability of the confidential informants is not a fatal defect. When we view the affidavit as a whole, a substantial basis exist for finding reasonable cause. The information provided by the first confidential informant corroborated the information provided by the citizen informant in that both said that appellant was living with Cynthia Broadway and that Broadway was selling drugs for appellant. They also said that appellant was obtaining drugs from Texas. In addition, the information provided by the second confidential informant was corroborated by the officers. The second confidential informant said that appellant was driving a gray mini van with Texas license plates. After receiving this information, the officers later observed a gray mini van parked outside Cynthia Broadway's apartment. Thus, when we view the affidavit as a whole, there was a substantial basis for a finding of reasonable cause to believe that the officers would find contraband. Based upon our de novo review of the totality of the circumstances, the trial court did not err when it denied appellant's motion to suppress.

Appellant next argues that the trial court erred when it allowed a drug laboratory supervisor to testify in lieu of the chemist who performed tests on the evidence. Appellant points out that pursuant to Ark. Code Ann. § 12-12-313 (b) and (d)(2) he filed notice of his intent to cross-examine the chemist that analyzed the drugs seized during the execution of the search warrant. Arkansas Code Annotated section 12-12-313 provides:

(a) The records and reports of autopsies, evidence analyses, drug analyses, and any investigations made by the State Crime Laboratory under the authority of this subchapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the executive director or his assistants, associates, or deputies.

(b) Nothing in this section shall be deemed to abrogate a defendant's right of cross-examination if notice of intention to cross-examine is given prior to the date of a hearing or trial pursuant to the applicable rules of criminal procedure.

(c) The testimony of the appropriate analyst may be compelled by the issuance of a proper subpoena, in which case the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his counsel, either in person or via two-way closed-circuit or satellite-transmitted television pursuant to subsection (e) of this section.

(d)(1) All records and reports of an evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the analyst who performed the analysis.

. . . .

(2) The defendant shall give at least ten (10) days' notice prior to the proceedings that he requests the presence of the analyst of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.

(3) Nothing in this subsection shall be construed to abrogate the defendant's right to cross-examine.

(e) In all criminal trials, except trials in which the defendant is charged with capital murder, § 5-10-101, or murder in the first degree, § 5-10-102, upon motion of the prosecutor, after notice to the defendant and upon proper showing of good cause and sufficient safeguards to satisfy all state and federal constitutional requirements of oath, confrontation, cross-examination, and observation of the witness's demeanor and testimony by the defendant, the court, and the jury, and absent a showing of prejudice by the defendant, the court may allow the prosecutor to present the testimony of the appropriate analyst by contemporaneous transmission from a State Crime Laboratory facility via two-way closed-circuit or satellite-transmitted television which shall allow the examination and cross-examination of the analyst to proceed as though the analyst were testifying in the courtroom.

The purpose of § 12-12-313 is to remove these reports from exclusion under the hearsay rule and make them admissible when certain requirements designed to establish their trustworthiness have been met. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992).

The State argues that appellant's rights under § 12-12-313 were not triggered because the chemist report was not offered into evidence. The State reads § 12-12-313 to mean that the State's duty to produce the chemist only arises when the State intends to offer the report into evidence. We disagree with the State's reading of §12-12-313. Furthermore, while the written document was not introduced, the contents of the report were admitted through the testimony of the laboratory supervisor.

Our supreme court previously explained that the state official who actually performed the test must appear at the trial for cross-examination if the defendant gives notice at least ten days prior to trial. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999) (citing Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993)) (emphasis added). Arkansas Code Annotated section12-12-313 (b) provides that if a defendant gives proper notice of his intent to cross-examine, §12-12-313 does not abrogate a defendant's right to cross-examine.

Appellant filed his notice on October 7, 2002, and his trial occurred October 25, 2002. This was within the statutory period. Upon appellant's compliance with §12-12-313, the State had a duty to produce the chemist for cross-examination.

The State further argues that because the laboratory supervisor was an expert witness, he was allowed to testify as to the contents of the report.1 Rule 703 of the Arkansas Rules of Evidence provides that:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

If we allow the State to rely on Rule 703, we abrogate appellant's right to cross-examination. The Confrontation Clause provides two types of protection for a criminal defendant (1) the right physically to face those who testify against him, and (2) the right to conduct cross-examination. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). The main and essential purpose of the Confrontation Clause is to secure for the opponent the opportunity to cross-examination. See id. Condoning the State's behavior would provide the State with an avenue to circumvent its duty to produce a chemist every time a defendant asserted his §12-12-313 right to cross-examination.

We hold that upon appellant's compliance with the ten-day notice provision in § 12-12-313, the State had an absolute duty to produce the chemist for cross-examination. Because the State failed to produce the chemist for cross-examination, we reverse and remand this issue to the trial court.

In his last argument on appeal, appellant asserts that the trial court committed reversible error by granting the State's motion to remove an African-American juror during trial. We have held in the past that an appellant must show prejudice when the trial court removes a juror and seats an alternate in the juror's place. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). We review such matters under an abuse of discretion standard.

After the commencement of appellant's trial, the State made a motion to remove a juror because the State learned that during voir dire the juror had failed to disclose that in 1997 he had been convicted of theft and hindering apprehension. During questioning by the trial court, the juror admitted to having the convictions. The trial court then removed the juror and seated the alternate. Appellant fails to demonstrate any prejudice; therefore, we affirm as to this point.

Affirmed in part; reversed and remanded.

Robbins and Griffen, JJ., agree.

1 The parties failed to provide any evidence indicating that the laboratory supervisor was qualified by the court as an expert witness or that the parties stipulated that the laboratory supervisor was an expert witness.