591 S.W.3d 347
Ark. Ct. App.2019Background
- Law-enforcement officers executed a search warrant at Rodney Harmon’s Vilonia home on Sept. 17, 2015; an HBO documentary crew (Meth Storm) filmed the search but did not appear in the aired documentary.
- The prosecutor did not learn of the film crew’s presence until January 2017 and did not possess the HBO footage; she provided defense counsel with the contact information she had.
- Harmon sought production of the HBO footage and the identities of persons present; the trial court issued a general order to whoever possessed the video but denied a request to require the prosecution to obtain HBO’s footage and denied a last‑minute continuance.
- The court granted the State’s motion in limine excluding mention of HBO personnel at the search and permitted a non‑AMI jury instruction on trafficking that added six factors (imported from a different AMI instruction) for proving purpose to deliver.
- A jury convicted Harmon of trafficking methamphetamine (within 1,000 feet of a school‑bus stop), simultaneous possession of drugs and firearms, possession of drug paraphernalia, and maintaining a drug premises; Harmon received an aggregate 40‑year sentence and appealed.
Issues
| Issue | Harmon’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether the prosecution was required to obtain and produce HBO’s video (discovery/Brady/State‑actor theory) | HBO filmmakers were effectively State agents; the State cannot accept benefits of a law‑enforcement arrangement and disclaim related disclosure obligations; footage could be exculpatory | State did not possess the footage and made reasonable efforts to obtain it; defense failed to show State had access or that footage existed or was favorable | No reversible error — prosecution had no duty to obtain footage; Harmon failed to show a discovery/Brady violation or that filmmakers were State actors |
| Whether the trial court abused its discretion by denying a continuance to obtain the video and HBO personnel identities | Continuance was necessary to obtain potentially exculpatory evidence and to relitigate suppression | Defense had ample time, did not subpoena HBO, already received a six‑month continuance, and there was little likelihood obtaining the film would be successful | No abuse of discretion — denial of last‑minute continuance was proper |
| Whether exclusion of testimony about HBO crew and missing footage was improper (motion in limine) | Presence of undisclosed persons and an unproduced recording could create reasonable doubt; exclusion prevented defense from making this point | Testimony about nonexistent/unlocated footage would confuse jury and waste time | No abuse of discretion — court properly excluded testimony about unproduced/unknown footage as potentially confusing under Rule 403 |
| Whether the court erred by giving a non‑AMI trafficking instruction that added factors for "purpose to deliver" | Harmon: AMI trafficking instruction accurately states the law and should not be modified; added factors are in the lesser‑included AMI instruction anyway | State: model trafficking instruction lacked helpful factors; importing factors from AMI 64.420 clarified purpose to deliver | Reversed trafficking conviction and remanded — court abused discretion by deviating from the model instruction; factors were intentionally omitted from AMI trafficking instruction and the court had no discretion to add them |
| Whether admission of recorded controlled buys (informant not present) during penalty phase was prejudicial | Admission was more prejudicial than probative and prejudiced sentencing | Recordings were relevant; defense made a Rule 403 objection only and failed to show substantial prejudice | No reversible error — admission over Rule 403 objection was not an abuse of discretion; sentence not reduced on this ground |
Key Cases Cited
- Wilson v. Layne, 526 U.S. 603 (media ride‑alongs and Fourth Amendment limits on police inviting media into private searches)
- Brady v. Maryland, 373 U.S. 83 (suppression of favorable evidence violates due process)
- Pointer v. Texas, 380 U.S. 400 (Confrontation Clause requires opportunity for cross‑examination)
- Barrow v. State, 377 S.W.3d 481 (Ark. Ct. App. 2010) (prosecution imputation of third‑party information requires a showing State had access)
- Pokatilov v. State, 526 S.W.3d 849 (Ark. 2017) (non‑model instructions permitted only when model instruction is inaccurate or silent)
- Napier v. State, 46 S.W.3d 565 (Ark. Ct. App. 2001) (erroneous jury instruction: prejudice generally presumed unless harmless)
- Foreman v. State, 945 S.W.2d 926 (Ark. 1997) (State must produce witnesses to custodial statements or explain absence)