Wormley v. State
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Cite as 2010 Ark. App. 474
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR 08-1344
SHELTON WORMLEY
APPELLANT
Opinion Delivered June 2, 2010
V.
APPEAL FROM THE DREW
COUNTY CIRCUIT COURT
[NO. CR-2007-0184-1A]
STATE OF ARKANSAS
HONORABLE SAM POPE, JUDGE
APPELLEE
AFFIRMED
COURTNEY HUDSON HENRY, Judge
A jury in Drew County found appellant Shelton Wormley guilty of manufacturing
marijuana, possession of marijuana with intent to deliver, and possession of drug
paraphernalia. As a consequence, appellant received cumulative sentences totaling forty years
in prison. For reversal, appellant argues that the trial court erred in denying his motion to
suppress and his motion for a continuance.1 We find no error and affirm.
In an amended felony information, the prosecuting attorney of Drew County charged
appellant with the offenses of manufacturing marijuana, possession of marijuana with intent
to deliver, possession of drug paraphernalia, simultaneous possession of drugs and firearms, and
felon in possession of a firearm. The prosecuting attorney levied these charges following the
1
We previously ordered rebriefing because appellant’s abstract was deficient. Wormley
v. State, 2010 Ark. App. 166.
Cite as 2010 Ark. App. 474
execution of a search warrant for appellant’s trailer home on August 17, 2007. In this search,
the officers discovered several pots containing marijuana plants, two pistols with ammunition,
items of paraphernalia, and various amounts of marijuana found in the trailer, in appellant’s
vehicle, and on the ground near appellant, who was standing outside the trailer when the
officers arrived.
Supervisory Agent Jason Akers, a Monticello police officer assigned to the Tenth
Judicial Drug Task Force, provided the affidavit for the search warrant. In the affidavit, dated
August 13, 2007, Officer Akers related the following facts. In the past year, Kelly King, a
probation officer, informed officers that appellant was selling illegal narcotics at the college
campus in Monticello. During the week prior to August 13, 2007, a confidential informant
advised Akers and another task force agent, Steven Carter, that appellant was selling marijuana
from his residence. In speaking of this confidential informant, Akers stated that the informant
“has been proven reliable in the recent past and has led to numerous search warrants and
felony drug arrests and convictions, with countless seizures of large amounts of crack cocaine,
marijuana and methamphetamine.” The affidavit further recited that on Saturday, August 11,
2007, Agent Carter interviewed a woman named Tina Shaver, who was under arrest on drug
charges. During this interview, Shaver made incriminating statements admitting that she was
in possession of the marijuana found upon her arrest. She also stated that she had purchased
the marijuana within the past twenty-four hours from appellant at his residence. Shaver
further informed Agent Carter that she had been purchasing marijuana from appellant for
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three months. Shaver also provided directions to appellant’s home, and on August 13, 2007,
Officer Akers drove by the residence and observed appellant’s vehicle parked in the driveway.
The affidavit and ensuing search warrant contained the following description of
appellant’s property:
Located in Drew County, Arkansas, and inside the City Limits of Monticello, the
location is described as follows: From the intersection of East Jackson Street and Pine
Street, turn onto Pine Street and travel South just over .1 of a mile. Turn right into
Pines Trailer Park, also known as Pine Street Trailer Park and travel approximately .1
of a mile. The residence to be searched is located at the dead end of the drive and is
a white mobile home with what appears to be green trim.
Prior to trial, appellant moved to suppress the evidence seized in the search. Appellant
argued that the affidavit failed to establish probable cause, that the affidavit contained
insufficient facts showing the reliability of the informants, and that his property was not
described with particularity.
Appellant also questioned the impartiality of the issuing
magistrate, based on the allegation that Shaver was an employee of the magistrate.
At the hearing on appellant’s motion, Agent Akers repeated the information he
provided in the affidavit. Although Akers obtained the warrant, he did not participate in its
execution. He also testified that there were trailers on both sides of the road but that
appellant’s mobile home was the last trailer on the left at the end of the road. Agent Carter
testified that he and other officers executed the search warrant. He said that appellant’s trailer
was the last one on the left side of the road and stated that there was no trailer across from
appellant’s on the right side of the road. Carter testified that he knew the location of
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appellant’s trailer before the search because he and Agent Akers drove there to obtain the
mileages that were included in the description based on the directions provided by Shaver.
Appellant also testified at the hearing. He acknowledged that his trailer was white with
green trim, but he claimed that a trailer of similar coloring was located directly across the
street from his trailer.
The trial court denied the motion to suppress and subsequently entered a written order
reflecting its ruling. On the day of trial, appellant expressed dissatisfaction with his appointed
counsel, and he orally moved for a continuance. Appellant stated that he had one fiftyminute meeting with his lawyer and had not been able to communicate with him since then.
He said that he reached his attorney on election day but that his attorney, a candidate for state
representative, did not have time to speak with him. Appellant feared that his attorney was
not prepared for trial, and he said that he had a job prospect and wished to retain another
lawyer. When questioned by the court, appellant’s attorney stated that he was prepared for
trial. The trial court denied appellant’s motion to postpone the trial, finding that appellant
had not stated good cause for a continuance. Consequently, the case went forward.
At trial, the court directed a verdict on the charge of simultaneous possession of drugs
and a firearm. The jury acquitted appellant of felon in possession of a firearm but found him
guilty of manufacturing marijuana, possession of marijuana with intent to deliver, and
possession of drug paraphernalia. Appellant appeals the judgment and commitment order
reflecting those convictions.
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Appellant’s initial argument on appeal concerns the denial of his motion to suppress,
and he first argues that the description of his trailer was inadequate. Rule 13.1 of the Arkansas
Rules of Criminal Procedure sets forth the requirements for the issuance of a search warrant,
and subsection (b) of the rule requires the application for a search warrant to describe with
particularity the persons or places to be searched and the persons or things to be seized. Rule
13.2 concerns the contents of a warrant, and subsection (b)(iii) of this rule requires the
warrant to describe with particularity the location and designation of the places to be
searched. The requirement of particularity is to avoid the risk of the wrong property being
searched or seized. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). The test for
determining the adequacy of the description of the place to be searched is whether it enables
the executing officer to locate and identify the premises with reasonable effort and whether
there is any likelihood that another place might be mistakenly searched. Beshears v. State, 320
Ark. 573, 898 S.W.2d 49 (1995). Courts applying this test must use common sense and not
subject the description to hypercritical review. Id. Highly technical attacks are not favored
because their success could discourage law enforcement officers from utilizing search warrants.
Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).
When reviewing a 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 the
findings of historical facts for clear error and determining whether those facts give rise to
reasonable suspicion or probable cause, giving due deference to the inferences drawn by the
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trial court. Id. Determinations regarding credibility in suppression hearings are left to the trial
court. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007).
Here, aside from giving detailed directions to appellant’s residence, the affidavit and
warrant described appellant’s trailer as being “located at the dead end of the drive and is a
white mobile home with what appears to be green trim.” Appellant argues that the danger
of the wrong property being searched was great. He bases this argument on testimony that
the trailers in the park were similar, that one officer could not recall the color of the
neighboring trailer, that a car was parked in front of appellant’s trailer that neither officer
could associate with appellant, and that appellant’s vehicle was parked on the adjacent lot.
However, the evidence is clear that appellant’s trailer was white with green trim, as described
in the affidavit and warrant. Both officers stated that appellant’s mobile home was the last
trailer on the road as indicated in the affidavit and warrant, and Agent Carter testified that
there was no trailer across the street from appellant’s.
Although appellant offered
contradictory testimony, the trial court chose to believe the testimony of the officers.
Moreover, the likelihood that the wrong property would be searched was minimized by
Agent Carter’s execution of the warrant. Although he did not provide the affidavit for the
warrant, he obtained the directions to appellant’s trailer from the informant Shaver, and he
accompanied the affiant to the location in order to obtain the description of the property.
We have held that, where the officer who provides the description of the place to be searched
in the warrant also executes the warrant, the danger of a mistaken search is unlikely. Brown
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v. State, 55 Ark. App. 107, 932 S.W.2d 777 (1996). The trial court’s decision that the
affidavit and warrant sufficiently described appellant’s residence is not clearly erroneous.
In the suppression issue, appellant also makes the argument that the reliability of the
informants was not established. He contends that the information provided by King was stale
and that the statements regarding the confidential informant’s reliability were conclusory.
Appellant also argues that the information provided by Shaver should have been more closely
scrutinized because she was an employee of the issuing magistrate.
When an affidavit for a search warrant is based, in whole or in part, on hearsay, the
affiant must 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. Ark. R. Crim. P.
13.1(b). There is no fixed formula in determining an informant’s reliability. Stanton v. State,
344 Ark. 589, 42 S.W.3d 474 (2001).
Factors to be considered in making such a
determination include whether the informant’s statements are (1) incriminating; (2) based on
personal observations of recent criminal activity; and (3) corroborated by other information.
Id. Additionally, facts showing that an informant has provided reliable information to law
enforcement in the past may be considered in determining the informant’s reliability in the
present. Id. However, the affidavit for a search warrant need not contain facts establishing
the veracity and reliability of nonconfidential informants such as police officers, public
employees, victims, and other witnesses whose identity is known. Id. This is true even when
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the citizen informant is not a “model citizen.” Moore v. State, 323 Ark. 529, 915 S.W.2d 284
(1996).
Applying the law to these facts, the information in the affidavit that was provided by
the confidential informant and King merely laid the foundation for the revelations that came
from Shaver, whose statements alone established probable cause for the issuance of the
warrant. Because Shaver’s identity was known, it was not necessary for the affidavit to
contain additional facts establishing her reliability. Even so, the affidavit contained such
additional facts in that she incriminated herself by confessing that she was in possession of the
marijuana that was found when she was arrested. We also point out that, while appellant
alleged that Shaver worked for the issuing magistrate, the record contains no evidence to
support that allegation. The trial court’s decision was not clearly erroneous, and we affirm on
this point as well.
Appellant’s final argument is that the trial court erred in denying his motion for a
continuance so that he could hire a different attorney. We begin by observing that a
defendant’s right to counsel of choice is grounded in the Sixth Amendment to the United
States Constitution, and it is also guaranteed by Article 2, section 10 of the Arkansas
Constitution. Price v. State, 2009 Ark. App. 664, ___ S.W.3d ___. While constitutionally
guaranteed, the right to counsel of one’s choice is not absolute and may not be used to
frustrate the inherent power of the court to command an orderly, efficient, and effective
administration of justice. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Once
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competent counsel is obtained, the request for a change in counsel must be considered in the
context of the public’s interest in the prompt dispensation of justice. Wilson v. State, 88 Ark.
App. 158, 196 S.W.3d 511 (2004). The trial court may also consider such factors as the
reasons for the change, whether other counsel has already been identified, whether the
defendant has acted diligently in seeking the change, and whether the denial is likely to result
in any prejudice to the defendant. Hayes v. State, 2009 Ark. App. 663. Additionally, once
a defendant has accepted representation by an attorney, the fact that he is dissatisfied with
counsel’s efforts does not entitle him to appointment of a different attorney. Bullock v. State,
supra.
A motion for a continuance is addressed to the sound discretion of the trial court, and
its ruling will not be reversed on appeal in the absence of a clear abuse of that discretion.
Jackson v. State, 2009 Ark. 336, ___ S.W.3d ___. The burden of establishing an abuse of
discretion falls squarely on the shoulders of the appellant. Brown v. State, 374 Ark. 341, 288
S.W.3d 226 (2008). An appellant must not only demonstrate that the trial court abused its
discretion by denying a motion for a continuance, but he must also show prejudice that
amounts to a denial of justice. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003).
In this case, appellant sought a continuance on the very day of trial. Although
appellant desired to replace his attorney, he had not spoken to or hired another attorney to
represent him. Contrary to appellant’s protestations, his attorney stated that he was prepared
to proceed with trial. Based on the record before us, the attorney’s assertion is borne out by
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the record, as counsel interposed appropriate objections and succeeded in obtaining either an
acquittal or a directed verdict on two charges. Appellant has not demonstrated that the trial
court abused its discretion or that he was prejudiced by the trial court’s decision. We find no
abuse of discretion and affirm the denial of the continuance.
Affirmed.
ROBBINS and GRUBER, JJ., agree.
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