Wilfred J. Vallien, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

WILFRED J. VALLIEN, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 04-985

November 2, 2005

APPEAL FROM THE CIRCUIT COURT OF SEBASTIAN COUNTY

[NO. CR-02-1256]

HONORABLE JAMES ROBERT MARSCHEWSKI,

JUDGE

AFFIRMED

Terry Crabtree, Judge

This is a revocation case.1 In July 2003 appellant pled guilty to possession of marijuana, second offense, for which the court suspended imposition of sentence for three years. The State filed a petition to revoke appellant's suspended sentence in March 2004, alleging that appellant had violated the terms of his suspension by committing the offenses of possession of marijuana with intent to deliver, possession of methamphetamine with intent to deliver, simultaneous possession of drugs and firearms, felon in possession of a firearm, and maintaining a drug premises. It was further alleged that appellant had failed to provide proof of attendance at Narcotics Anonymous meetings

as required by the terms of his suspension.

After a hearing, the trial court revoked appellant's suspended sentence and sentenced him to six years in prison. For reversal of that decision, appellant argues that the trial court erred by failing to suppress evidence obtained pursuant to what he claims was an invalid warrant. He alsocontends that he was denied the right of confrontation by the admission of hearsay testimony. We find no reversible error and affirm.

At the hearing, Travis Watkins, a Fort Smith narcotics officer, testified that on March 4, 2003, he was contacted by Mitch Carolan, a special agent with the Arkansas State Police. State troopers from Oklahoma had informed Carolan about a traffic stop of a vehicle that had taken place in their state during which three bundles of marijuana had been seized. Brent Lamar Iverson was identified as the driver of this vehicle, and Iverson told the Oklahoma officers that the marijuana was to be delivered to an address in Fort Smith to a man he knew only as "June." Carolan advised Watkins that Iverson had agreed to make a controlled delivery of the marijuana and that Iverson was being transported to Fort Smith for that purpose.

After he arrived in Fort Smith, Iverson directed the officers to the residence at 4310 Tilles, where he had made several previous deliveries of marijuana. In advance of the controlled delivery, the officers consulted with the prosecuting attorney and obtained an anticipatory warrant for the search of the home. The officers set up surveillance of the residence, observed Iverson enter the residence with a sack containing the bundles of marijuana, and they watched him leave the home empty-handed. Once the officers learned from Iverson that he had seen no weapons while he was in the home, they executed the warrant.

Contraband was found throughout the residence. In particular, Officer Donnie Ware found in the northwest bedroom two handguns, bullets, several bags of suspected marijuana, a bag of suspected crystal methamphetamine, digital scales, baggies containing residue, a glass smoking device with burnt residue, and marijuana roaches. There was also a wallet in that bedroom containing $1,260 in cash. Ware testified that appellant admitted to him that the northwest bedroom was his bedroom and that the marijuana, guns, and methamphetamine found there were his. Appellant also told Ware that he had purchased the marijuana found in the bedroom the week before, saying that he usually bought two pounds at a time for $600 for the purpose of sale.

The marijuana that was the object of the controlled delivery was later found at 1216 North47 Street. There was testimony that the marijuana had been taken there by Darla Creasey, who had left the residence on Tilles Street between the time of the controlled delivery and the execution of the warrant.

Appellant's first argument is that the trial court erred in not suppressing the evidence obtained pursuant to the warrant because the reliability of the informant was not sufficiently established. We are not convinced, however, that this argument is preserved for our review because appellant failed to object at the first opportunity. Appellant filed a motion to suppress the evidence on the ground that the affidavit failed to establish probable cause for the issuance of the warrant. This motion was filed on the day of the hearing, but the record does not reflect that appellant brought this motion to the attention of the trial court prior to the hearing. Likewise, the record does not disclose that the trial court agreed to entertain the suppression motion simultaneously with the revocation hearing. During the course of the hearing, appellant did object to the introduction of the evidence recovery report, which listed all of the items seized during the search. However, appellant stated no grounds for his objection, and the trial court overruled it. It was not until appellant objected to the officer testifying about the handguns recovered in the search that appellant raised a suppression argument. By then, evidence recovered in the search had already been admitted. Even in a revocation case, an appellant must raise suppression issues in a timely fashion. See Swanigan v. State, 336 Ark 285, 984 S.W.2d 799 (1999).

Even so, it has long been the law in this State that the exclusionary rule does not apply in revocation hearings. Deere v. State, 59 Ark. App. 174, 954 S.W.2d 943 (1997). An exception may exist if the probationer can prove a lack of good faith by the law enforcement officers. Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997). However, appellant has failed to demonstrate that the officers acted in bad faith. The officers were possessed of information that a delivery of a substantial quantity of marijuana was to be made. The informant agreed to cooperate with law enforcement by participating in a controlled delivery. After consulting with the prosecuting attorney, the officers obtained an anticipatory warrant, a measure that has been approved by our supreme court. See Mannv. State, 357 Ark. 159, 161 S.W.3d 826 (2004). We perceive no bad faith here, and thus conclude that there is no merit to appellant's argument.

As his second issue, appellant contends that he was denied the right of confrontation on two occasions when hearsay testimony was admitted. We have observed that although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses does apply. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998); Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989). When hearsay testimony is objected to at a revocation hearing based on the Confrontation Clause, the trial court must balance the probationer's right to confront witnesses against the grounds asserted by the State for not requiring confrontation. Goforth v. State, supra. In so doing, the court should assess the explanation the State submits as to why confrontation is undesirable or impractical, and the court should consider the reliability of the evidence which the State offers in place of live testimony. Id.

Appellant first complains about Officer Travis's testimony relating the information transmitted by the Oklahoma state troopers. In his objection at the hearing, appellant stated that he objected to the testimony being offered for the truth of the matter asserted but that he did not object to the testimony being offered to show the officer's basis for obtaining the search warrant. The prosecution responded that the testimony was not being admitted for the truth of the matter asserted, and the trial court allowed the admission of the testimony for the purpose "of showing why the officer did what he did, not for the truth of the matter asserted." We have recognized that the Confrontation Clause is not violated by the introduction of non-hearsay testimony. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). An out-of-court statement is not hearsay if it is offered, not for the truth of the matter asserted, but to show the basis for the witness's action. Id. Officer Travis's testimony was not hearsay; therefore, appellant was not denied the right of confrontation. Also, appellant received all the relief he requested. It is axiomatic that a party who has received the relief he requested has no basis for appeal. McClain v. State, ___ Ark. ___, ___ S.W.3d ___ (Mar. 10, 2005).

Appellant also argues under this point that the trial court erred in admitting Officer Watkins' testimony that he had learned from others that appellant's nickname was "June," who was identified as the person to whom the marijuana was to be delivered. We agree with appellant that this testimony was hearsay, as it was admitted to prove the truth of the matter asserted, and that the trial court did not follow the procedure enunciated in Goforth v. State, supra. The State counters, however, that there was no confrontation-clause violation because the testimony was not "testimonial hearsay," citing Crawford v. Washington, 124 S. Ct. 1354 (2004) (testimonial hearsay includes, at a minimum prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and police interrogations). We need not decide this issue because the right to confront witnesses is subject to harmless error. Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990)(citing Delaware v. Van Arsdall, 475 U.S. 673 (1986)). The testimony that appellant was known by the nickname of June had no bearing on the trial court's decision to revoke. The petition to revoke did not allege that appellant had engaged in the delivery of marijuana, and the trial court revoked appellant's suspended sentence based appellant's possession of the contraband that was found in the northwest bedroom. Appellant confessed that this was his bedroom and that the contraband found there belonged to him. In light of the overwhelming evidence supporting the allegations contained in the petition to revoke and the trial court's findings pertinent thereto, it is our conclusion that any error was harmless. See Caswell v. State, supra.

Affirmed.

Hart and Glover, JJ., agree.

1 This is the second time this appeal has been before us. Previously, we ordered rebriefing because appellant had failed to include the notice of appeal in his addendum as required by Ark. R. Sup. Ct. 4-2(a)(8). Vallien v. State, CACR 04-985 (April 13, 2005).