Richard Price v. State of Arkansas

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ar03-658

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RICHARD PRICE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-658

May 19, 2004

APPEAL FROM THE GRANT COUNTY CIRCUIT COURT

[NO. CR-2001-41-2]

HON. PHILLIP H. SHIRRON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Grant County jury found Richard Price guilty of manufacturing methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to ten years' imprisonment. He raises three points on appeal to this court: (1) the trial court abused its discretion in denying his motion to suppress evidence; (2) the trial court erred in denying his motion to dismiss for lack of a speedy trial; (3) the trial court erred in denying his motion for a directed verdict. We affirm.

At a suppression hearing held on December 11, 2001, Officer Steve Smith, an agent with Group 6 Narcotics, testified that, based on information he had received that methamphetamine was being distributed from a house on County Road 321, he arranged a controlled drug buy at the residence using an informant that he had worked with on previous occasions. Officer Smith stated that he searched the informant and his vehicle and gave him "buy" money to purchase drugs. He testified that he watched the informant go inside and come back out of the residence and that the informant gave him the drugs he had just purchased from appellant.

Officer Smith stated that he then sought a search warrant for the house where the controlled drug buy was made. In describing the residence in his affidavit for the search warrant, Officer Smith stated that it was located at Box 487, County Road 321, Grant County, Arkansas. He further described the residence as being a wood-frame house with entry gained from a door on the west side of the house. He stated that he was present when the search warrant was executed at approximately 5:00 a.m. and that there was no chance of searching the wrong house because he was familiar with the residence. Although the search warrant authorized a search at Box 487, which was indicated by the affidavit, it was later shown that the address for appellant's residence was Box 464. Nevertheless, Officer Smith insisted that he searched the residence that he had seen the informant enter and exit.

At the hearing, appellant disputed Officer Smith's testimony. According to appellant, his residence was clearly marked Box 464 as the numbers were on the left side of the door. He testified that several of the mailboxes in front of the residence had numbers on them. He also stated that there were other wood-frame houses in the vicinity.

Initially, the trial court granted appellant's motion because the court found that the warrant did not contain facts that justified the authorizing of a nighttime search and that the warrant did not describe the residence to be searched with particularity. The judge stated that it was not enough for the officers to say that, while they had the wrong address, they searched the right house. The judge also pointed out that it would have been easy for the officers to get the correct address through 911.

The State filed a motion on December 13, 2001, requesting that the court reconsider its earlier ruling granting appellant's motion to suppress in light of recent rulings by the appellate courts which have redefined the standards for searches, including nighttime searches. The trial court granted the State's motion, and another hearing was held on February 12, 2002. In explaining the purpose of the rehearing, the trial court stated that only one issue had been presented at the December 11, 2001, hearing, namely, the incorrect address in the search warrant. The court noted that "some collateral issues arose that the State was not aware of or prepared to argue at that point, including a nighttime search." Accordingly, because the motion was not presented in its entirety at the first hearing, the court elected to allow an entire rehearing of the earlier proceeding. Appellant objected to the rehearing, arguing that the State had waived the collateral issues by not objecting to them and that the State should not be permitted to have a second chance to be heard on the motion. Appellant moved that the court's earlier ruling be upheld. The trial court proceeded with the second hearing over appellant's objection.

Following the second hearing, the trial court denied appellant's motion to suppress. The trial court noted that the testimony at the second hearing was "complete and full and everybody was on the same playing field, which is the way it should operate." The judge found that, upon reexamining the affidavit, the facts were particularly strong in establishing that contraband would be found at appellant's residence. The trial court found that because Officer Smith had actually observed the controlled buy at appellant's residence, there could have been no mistake as to the search regardless of the incorrect address. In addition, the trial court found that the affidavit sufficiently established the reliability of the informant. Relying on Anhalt v. State, 70 Ark. App. 10, 13 S.W.3d 603 (2000), the trial court found that the warrant did not have to include the magistrate's conclusory findings as to the basis for permitting a nighttime search. The judge stated that he was not particularly troubled by the late return because case law suggested that it was not critical to the validity of the search. Appellant's trial was held on December 19, 2002. Prior to trial, appellant presented several motions, including a motion to dismiss for lack of a speedy trial that was filed on December 9, 2002. Appellant argued that there was no justification given on the docket sheet for tolling speedy trial from November 6, 2001, until November 28, 2001, during which time appellant's attorney had withdrawn and another attorney had been appointed to represent him. In addition he argued that the period from May 20, 2002, through October 10, 2002, was an unreasonable amount of time to hold against him and that it also was not noted on the docket sheet that the continuance was due to the unavailability of the State's witness. As for the first period, the court recalled that the reason for the continuance was because the newly appointed attorney had to be notified but that, in any event, appellant did not object. As for the second period, the trial court noted that it had coordinated its calendar with the crime lab's calendar to arrive at the date on which the chemist would be available to testify. The trial court also pointed out that appellant had likewise not raised any objection. The trial court denied appellant's motion because it was untimely and proceeded with the trial.

In addition to reiterating the testimony that was brought out at the suppression hearings, Officer Steve Smith testified that when the search warrant was executed, appellant was in the laundry room where officers found "practically everything" that could be involved in the manufacturing of methamphetamine, including hot plates, chemicals, pill soaks, acetone, and red phosphorus. According to Officer Smith, he and the other officers found digital scales, baggies, bi-layered solutions, syringes, and camp fuel. Officer Smith stated that he also found letters with appellant's name on them and a "meth recipe" as well.

Appellant testified that on the day the search warrant was executed, he was living at 153 Clevis Trail in Hot Springs and had been living there for approximately two months. Appellant testified that he and his wife Jeridee Smith, the other occupant of the house, were separated but that he had spent the night there. He stated that none of the evidence that was seized that day belonged to him and that it must have been Jeridee's because she was the only adult living there. Appellant testified that the weapons found during the search belonged to Jeridee and her son.

Directed-Verdict Motion

The preservation of an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.

Appellant contends that there was "absolutely no evidence other than the inconsistent and contradictory testimony from which the jury could have found Appellant guilty without resorting to suspicion and conjecture." Appellant's argument is barred. At trial, appellant moved for a directed verdict on the basis of constructive possession and has, thus, changed his grounds on appeal. A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). In any event, the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002).

Motion to Suppress

When reviewing the trial court's ruling on a motion to suppress evidence from a search, 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 while giving due weight to inferences drawn by the trial court. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). The task of the magistrate who issues the warrant is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001), citing Illinois v. Gates, 462 U.S. 213 (1983).

Appellant argues that the search warrant authorized a search at the residence for Box 487 and not at his residence at Box 464. Arkansas Rule of Criminal Procedure 13.1(b) provides that the application for a search warrant shall describe with particularity the persons or places to be searched. Although the affidavit incorrectly described the residence to be searched as Box 487 instead of Box 464, Officer Smith also described the house as being a wood-frame single family dwelling. According to Officer Smith's testimony at the hearings, appellant's residence was the only wood-frame house in the vicinity. He stated that the residence was on a gravel road with two trailer houses and one brick house and that it was the first house on the left after the wood line. In addition, Officer Smith testified that the residence had a row of mailboxes directly in front of it and that the only one that was marked was Box 487. Significantly, Officer Smith testified that he saw the informant enter and exit the residence for the controlled drug buy and that he executed the warrant at that residence. A technical error in a search warrant is minimized when the affiant is also the searching officer. See Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).

Appellant next argues that there were no specific findings in the affidavit that would justify a nighttime search. He further contends that the trial court erred in relying solely on Anhalt v. State, supra, and failed to consider the totality of the circumstances. A search warrant shall be executed between the hours of six a.m. and eight p.m. unless the judicial officer has reasonable cause to believe that (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. See Ark. R. Crim. P. 13.2(c). Pursuant to the rule, if any one of the exceptions are present, the issuing magistrate may, by appropriate provision in the warrant, authorize its execution at any time of day or night. See id. Here, the magistrate specifically authorized a search of the residence at any time of day or night. In Anhalt, supra, this court noted that Rule 13.2 does not require a written recitation of the judicial officer's finding that a nighttime search is justified and concluded that the judicial officer's failure to specifically state in the warrant that a nighttime search was justified did not substantially violate the defendant's rights. Citing Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977), the court in Anhalt held that the judicial officer's issuance of a search warrant specifically authorizing a nighttime search established his finding that a nighttime search was justified even more positively than the insertion of a conclusory finding to that effect would have. Here, the affidavit for the search warrant set forth facts to support the magistrate's conclusion that a nighttime search was authorized. Officer Smith stated that the informant had seen a loaded pistol on a night stand next to appellant's bed and that the informant knew that appellant kept the bulk of his controlled substances in the night stand. According to the informant, appellant said that he kept the contraband in the night stand because he could get rid of it quickly if necessary given that the bedroom was adjacent to a bathroom. Officer Smith also indicated in the affidavit that appellant had a violent criminal history. In addition, Officer Smith saw surveillance cameras positioned to view any approach from the roadway. Officer Smith stated that the informant also told him that appellant had said, "[T]o get me, they had better be good and I won't go down without a fight." We find no error.

Appellant contends that the affidavit contained hearsay from the confidential informant when there was no indicia of reliability. Rule 13.1(b) 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. In the affidavit, Officer Smith stated that the confidential informant had made four previous controlled drug buys and that the informant had provided law enforcement with information that had been proven reliable by separate and independent sources. In any event, Rule 13.1(b) also provides that the 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.

Appellant argues that the search warrant was not returned within five days in that it was executed on July 3, 2001, and the return was made on July 10, 2001. Rule 13.2(b)(v) provides that the warrant shall state the period of time, not to exceed five days after execution of the warrant, within which the warrant is to be returned to the issuing judicial officer. Officer Smith admitted that, although the warrant instructed him to make a return of the warrant within five days, he did not make a return until seven days later. The return was due on July 8, 2001, which was a Sunday, meaning that the time for making the return would have been extended to July 9, a Monday, pursuant to Ark. R. Crim. P. 1.4. Thus, the return was one day late. Pursuant to Ark. R. Crim. P. 16.2(e), a motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal or state constitution. We cannot say this violation was substantial and, in any event, appellant has not alleged that he was prejudiced by the late return. See Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).

Appellant maintains that the trial court abused its discretion in not upholding its first ruling granting his motion to suppress and further erred by granting the State a rehearing. Although appellant objected below, he advances his current argument on appeal without any citation to authority. We do not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that the arguments are well-taken. Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000).

Viewing the totality of the circumstances, we conclude that the magistrate had a substantial basis for finding probable cause existed to issue the warrant. We thus cannot say that the trial court's denial of appellant's motion to suppress was clearly erroneous.

Speedy Trial

Any defendant charged in circuit court shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months from either the date the charge is filed or the date of arrest, whichever is earlier. See Ark. R. Crim. P. 28.1(c) and Ark. R. Crim. P. 28.2(a). Certain periods of time are excluded in computing the time for trial. See Ark. R. Crim. P. 28.3. Once a defendant makes a prima facie showing that he was brought to trial beyond twelve months, the burden shifts to the State to show the reasons for the delay. See Bowen v. State, 73 Ark. App. 240, 42 S.W.3d 579 (2001).

Appellant argues that it was the State's burden to prove that the delay in getting him to trial was justified after he showed that there were 528 days between his arrest and trial. He maintains that speedy trial should not have been tolled from November 6, 2001, to November 28, 2001, because his newly appointed lawyer had not requested a continuance. He also argues that there was no justification for tolling the period from May 20, 2002, until October 10, 2002. He contends that the time should not have been counted against him because it was the State's witness, forensic chemist Linda Burdick, who was out of town following her mother's death. Appellant argues that from October 21, 2002, when a bench warrant was issued for his arrest, until November 8, 2002, when it was served, no continuance was granted.

The State maintains that appellant's arguments are barred because he failed to timely object to the excluded periods. We agree. A contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The reason for requiring a contemporaneous objection is to inform the trial court of the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. Id. As the trial court noted, appellant failed to object to the first two excluded periods until the day of trial, and we cannot discern that he raised any objection at all to the third period he complains of on appeal. Accordingly, appellant's arguments are not preserved for review.

Affirmed.

Bird and Roaf, JJ., agree.