Larry E. Niblett v. State of Arkansas
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DIVISION III
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
D AVID M. G LOVER, Judge
CACR06-17
August 30, 2006
APPEAL FROM THE SCOTT
COUNTY CIRCUIT COURT
[CR-04-58]
LARRY E. NIBLETT
APPELLANT
V.
HONORABLE PAUL E.
DANIELSON, CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant, Larry Niblett, was tried by a jury and found guilty of the offenses of
manufacturing methamphetamine and possession of drug paraphernalia.
He was
sentenced to forty years in the Arkansas Department of Correction on the manufacturing
charge and ten years on the possession charge.
sufficiency
of
the
evidence
to
support
his
In this appeal, he challenges the
conviction
for
manufacturing
methamphetamine, and he contends that the trial court erred in denying his motions to
suppress. We do not reach the merits of his arguments because they are not preserved for
our review. We, therefore, affirm.
Sufficiency of the evidence
Appellant contends that the trial court erred in denying his motion for a directed
verdict because there was insufficient evidence to support his conviction for
manufacturing methamphetamine. We treat a motion for directed verdict as a challenge
to the sufficiency of the evidence. Barnes v. State, ____ Ark. App. ____, ____ S.W.3d
____ (March 1, 2006). Preservation of appellant’s right against double jeopardy requires
that we consider his challenge to the sufficiency of the evidence first even though it was
not listed as his first point of appeal. Id. As mentioned previously, however, appellant’s
challenge to the sufficiency of the evidence supporting his conviction for manufacturing
methamphetamine is not properly preserved for our review.
Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be
made at the close of the evidence offered by the prosecution and at the close of all
of the evidence. A motion for directed verdict shall state the specific grounds
therefor.
....
( c) The failure of a defendant to challenge the sufficiency of the evidence
at the times and in the manner required in subsections (a) and (b) above will
constitute a waiver of any question pertaining to the sufficiency of the evidence to
support the verdict or judgment. A motion for directed verdict or for dismissal
based on insufficiency of the evidence must specify the respect in which the
evidence is deficient. A motion merely stating that the evidence is insufficient does
not preserve for appeal issues relating to a specific deficiency such as insufficient
proof on the elements of the offense. A renewal at the close of all of the evidence
of a previous motion for directed verdict or for dismissal preserves the issue of
insufficient evidence for appeal. If for any reason a motion or a renewed motion at
the close of all of the evidence for directed verdict or for dismissal is not ruled
upon, it is deemed denied for purposes of obtaining appellate review on the
question of the sufficiency of the evidence.
(Emphasis added.)
At the close of the State’s case the following colloquy occurred:
D EFENSE C OUNSEL:
I’d make a motion based on insufficiency first of the
affidavit for the search warrant. Had a chemist testify
what he was told was at the residence. He said there
was no way he could draw a conclusion that there was
manufacturing process going forth there. Also, there’s
been nothing testified to, to connect Mr. Niblett to any
of this activity.
P ROSECUTOR:
I assume he’s renewing his suppression is what he’s
going [sic].
D EFENSE C OUNSEL:
Yes, yes.
P ROSECUTOR:
I don’t think he’s correctly quoted the chemist. Again,
it’s — I believe the question that was asked was what
was muriatic acid used for and he said to clean bricks
and he goes, do you have some of this at your
residence and he said. He didn’t say there’s no —
there’s no evidence to connect the items listed in the
affidavit to manufacture of meth. I think his testimony
was directly opposite of that. He went how to cook it
and what was used.
D EFENSE C OUNSEL:
No I was talking about when I asked the chemist and I
named off —
T RIAL C OURT:
But the items specifically listed in the affidavit was
sufficient in itself. But it’s within the affidavit also to
indicate there’s some other things that if you found you
could arrest me for.
P ROSECUTOR:
That statement is contained in the affidavit.
D EFENSE C OUNSEL:
That’s not correct. To know with this items you would
arrest me — with these items that he listed.
T RIAL C OURT:
I thought he said there’s some things there that — we
can look at it. But of course we’re talking about a
directed verdict now.
D EFENSE C OUNSEL:
Yes.
T RIAL C OURT:
The record was made on suppression, but the affidavit
is going to say whatever it says. Of course it seems to
me it says something more than just that these items
were there. There’s some language in there to the
effective if —
P ROSECUTOR:
The search warrant should have been — the affidavit I
think was admitted as an exhibit in the suppression
hearing.
D EFENSE C OUNSEL:
Yes.
P ROSECUTOR:
The last line is that, which I read before we started the
trial today, said whenever Chief Helms asked for
permission to conduct a search of his home Mr. Niblett
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told me, “no, cause there’s stuff there, like I said, you
guys can charge me with.”
D EFENSE C OUNSEL:
An that’s the items that were listed. I mean, you’ve
heard —
T RIAL C OURT:
Your motion for directed verdict would be denied.
(Emphasis added.)
After careful review of the above colloquy, we cannot discern where appellant
made a motion for directed verdict, even though at the close of the discussion, the trial
court stated, “your motion for directed verdict would be denied.” We do recognize that
the State seems to accept that appellant moved for a directed verdict, but our review of
the above quoted colloquy that occurred at the conclusion of the State’s case simply does
not convince us that such a motion was made, and certainly not with the specificity
required by Rule 33.1. We conclude, therefore, that the issue is not preserved for our
review.
Motion to suppress
For his remaining point of appeal, appellant contends that the trial court erred in
denying his motion to suppress due to the false statements of the affiants in the sole
affidavit supporting the warrant.
Appellant is barred from raising this argument on
appeal because he did not make it below. It is true that he challenged the search warrant
several times during the proceedings below, but he never at any time argued that the
affiants made false statements in support of the warrant. Yet, that is the sole basis for his
point on appeal.
Below, appellant challenged the search warrant in the following ways:
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1) Written motion —
Appellant’s written motion, filed in November 2004,
contains no arguments about the affiants making false statements.
2) May 3, 2005 hearing — Appellant argued, “I am alleging that the stop and
interview was improper as a basis.”
3) July 5, 2005 hearing — Appellant argued, “The only suppression after what I’ve
learned today relayed to the prosecutor about the stop out in Oklahoma we were
challenging whether the search warrant was valid. Judge, I’d ask that you review the
search warrant one more time and make a ruling to that affect.”
4) July 5, 2005 hearing — Appellant also argued, “The search warrant is self
explanatory.
I’ll just say what the officer said.
Larry Niblett told him that he had
muriatic acid, maybe some Coleman fuel and jars. The officer put in the affidavit for
search warrant he knew that was used in the manufacture. I’d like you to review that
affidavit.”
5) August 12, 2005 in camera hearing before trial — Appellant argued:
I am renewing my motion to suppress based on the insufficiency for the affidavit
for the search warrant. It was signed by Allan Marx and Eric Helms. I don’t know
where Marx is from but it said he participated in the arrest in Oklahoma. Chief
Helms of the Pocola Police Department read through the affidavit said there were
several items he admitted were used in the clandestine manufacture of
methamphetamine. But, if you look at what he actually admitted having, he said
he had Coleman fuel, drain cleaner, glassware, muriatic acid, and there’s nothing
else to connect this affidavit that Mr. Niblett was manufacturing
methamphetamine. Those are common items in a lot of people’s houses. There is
not a CI that indicates that there was any manufacturing there. There’s no
admission, if you read through the whole case, by Mr. Niblett, no writings, nothing
that would indicate that there was manufacturing going on there. There was
nothing that the police knew other than these four things. We all know from being
involved in this that those items are used for methamphetamine, but without
something else, I think the affidavit for search warrant is deficient.
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6) At close of State’s case — The colloquy concerning the renewal of appellant’s
motion to suppress appears earlier in this opinion in its entirety. Therefore, it is not
necessary to repeat it again. The colloquy contains no mention of false statements by the
affiants.
Consequently, we also conclude that appellant’s challenge of the trial court’s
denial of his motion to suppress on these grounds is not preserved for our review.
Affirmed.
P ITTMAN, C.J., and G LADWIN, J., agree.
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