Melvin Mayweather v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

MELVIN MAYWEATHER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-300

March 8, 2006

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2003-1305]

HON. TIMOTHY DAVIS FOX,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Melvin Mayweather appeals following his conviction in Pulaski County Circuit Court for possession of marijuana and possession of cocaine. He was sentenced as a habitual offender to 180 months in prison. He argues on appeal that the trial court erred in denying his motion to suppress and that his due process rights were violated because possible exculpatory evidence was destroyed by the State. We disagree and affirm.

Officer Denis Hutchins of the Little Rock Police Department (LRPD) stopped Mayweather, who was driving an older model, gold BMW, during the early morning hours of December 24, 2002, after receiving reports that suspects in a rape investigation were driving a similar vehicle. Although it was determined that Mayweather was in no way involved in the rape, a subsequent search of his vehicle produced marijuana and cocaine.

During a pretrial hearing on Mayweather's motion to suppress, Officer Hutchins testified that he noticed a strong odor of marijuana after approaching Mayweather's vehicle and requesting his license and registration. He also noticed an unopened box of ammunition in the back floorboard of the vehicle. He asked Mayweather to exit the vehicle, patted him down, asked him to sit in the patrol car, and searched the vehicle. Officer Hutchins found several rock-like substances in a toboggan on the front seat, a marijuana-filled cigar in the ashtray, and a marijuana bud in the console. Hutchins admitted that other officers were present during the search, but he could not remember exactly when they arrived. He noted that he may have been driving a patrol car outfitted with a videotape machine that night.

Officer James Jenkins also testified at the hearing and stated that he arrived on the scene as Officer Hutchins was approaching the BMW after having placed Mayweather in the patrol car. Jenkins stated that he was the first officer after Hutchins to respond. He stated that he never went inside the car and that he observed Hutchins find the cocaine inside the cap. He testified that he thought the patrol car he was driving that night was equipped with a videotape recorder; however, any videotape that may have recorded the events was destroyed pursuant to the LRPD's policy of discarding those tapes after thirty days.

In his own defense, Mayweather testified that he was not smoking marijuana in the car at the time the officers pulled him over but that the officers might have smelled residual marijuana smoke from when he had smoked in the car the day before. His rendition of what occurred that evening was similar to the testimony of Officers Hutchins and Jenkins, except Mayweather maintained that there were several other officers present, that one of the other officers approached the passenger side of his vehicle, and that the officer began searching the vehicle before Mayweather was ordered out of the car.

Mayweather argues that the trial court erred by denying his motion to suppress because the officers lacked probable cause to search his vehicle. Our standard of review with regard to a trial court's denial of a motion to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We also take care to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Id. at 412, 94 S.W.3d at 895. We defer to the credibility determinations made by the trial judge when weighing and resolving facts and circumstances. Swan v. State, __ Ark. App. __, __ S.W.3d __ (Feb. 1, 2006). In addition, a fact-finder is not required to believe the self-serving testimony of the defendant. McKenzie v. State, __ Ark. __, __ S.W.3d __ (May 12, 2005). Prior case precedent has established that when an officer approaches a vehicle after a valid traffic stop and smells marijuana, he has probable cause to search the vehicle. See McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999).

The trial court was free to believe the testimony of the officers rather than the testimony of Mayweather. Incidentally, Mayweather himself testified that his car may have smelled of marijuana. Officer Hutchins testified that he smelled the marijuana and searched the vehicle himself. Officer Jenkins's testimony was consistent with Hutchins's account. Therefore, we hold that the trial court did not err in finding there was probable cause to search the vehicle and correctly denied the motion to suppress.

Mayweather also contends that the State breached its duty under Brady v. Maryland, 373 U.S. 83 (1963), and Arizona v. Youngblood, 88 U.S. 51 (1988), to preserve potentially exculpatory evidence. In Brady, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87-88. However, the Supreme Court concluded in Youngblood that the State's failure to preserve potentially useful evidence does not constitute a denial of due process of law unless the defendant can show bad faith on the part of the police. Id. at 58. Arkansas case law has relied on the Youngblood holding in spoliation cases. See Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997) (holding that the trial court properly denied a due process claim where the defendant made no showing that blood evidence possessed any exculpatory value before it was destroyed or that the State in bad faith failed to preserve the blood sample); Threadgill v. State, 74 Ark. App. 301, 47 S.W.3d 304 (2001) (holding the trial court did not err where there was neither an allegation nor proof of bad faith).

In the present case, Mayweather has failed to provide any proof that the State acted in bad faith in destroying the videotape. It was the uniform policy of the LRPD to erase all tapes after thirty days, except those determined to be useful to the department or requested by a defendant, and Mayweather argues that the policy itself is the best evidence of bad faith. While the policy could be more precise in its language, no evidence has been presented that it required exculpatory evidence to be destroyed. Additionally, Mayweather has produced no proof that the videotape itself would have been potentially exculpatory even if it had been preserved. In fact, the main basis for probable cause provided by Officer Hutchins was that he smelled marijuana. It is doubtful that the videotape could have assisted the trial court in determining whether the odor was present. Without a showing of bad faith on the failure to preserve the tape, Mayweather's case must be affirmed.

Affirmed.

Roaf, J., agrees.

Hart , J., concurs.

Josephine Linker Hart, Judge, concurring. I agree that this case must be affirmed, but I write separately to state unequivocally that I do not believe that the Little Rock Police Department's policy of erasing its video tapes every thirty days-unless they contain inculpatory evidence that the prosecution desires-comports with a criminal defendant's due-process rights. It is worth noting that the State conceded as much during oral argument. Nonetheless, I vote to affirm simply because the record before us could not support Mr. Mayweather's argument.

In Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991) (quoting California v. Trombetta, 467 U.S. 479 (1984)), our supreme court stated that, even before it reached the bad-faith issue of spoliation of evidence, the State's duty to preserve evidence is limited to that which "might be expected to play a significant role in the suspect's defense," and that the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." I believe that the trial strategy employed at the suppression hearing by Mr. Mayweather's trial counsel prevented us from even reaching the issue of whether the Little Rock Police Department's tape- destruction policy constituted bad faith. At the hearing, he conceded to the trial court that it was "highly unlikely" that there would be any "audio" on the tape and it was "highly unlikely there's a real chance of a marijuana smell issue showing up on a videotape." Furthermore, Mr. Mayweather was called by his trial counsel to testify and Mayweather admitted that there "might" have been a residual odor of marijuana present. Accordingly, reversing this case would require us to put Mr. Mayweather in a better position than he would have been in had the tape not been destroyed, a position I simply cannot accept.

Turning back to the issue of the Little Rock Police Department's tape-destruction policy, I contend that destruction of any video that captures any stop or arrest should not be allowed until after the case is concluded. The simple reality is that in most circumstances a criminal-defense attorney would not even begin his or her investigation of the circumstances of his client's arrest before the tape would have been destroyed. While our adversarial legal system necessarily turns every trial into a competition of sorts, the purpose ultimately is to find the truth. Accordingly, while justice may be blind, due process cannot countenance imposing that condition on a criminal defendant's attorney.