Holloway v. StateHolloway v. State
Lead Opinion
The appellants, Brent Holloway and Ricky Delcamp, were tried together on charges arising from a police drug raid on a house where both lived. They were allegedly found to be in possession of drugs and drug paraphernalia. Both were found guilty. Holloway was sentenced to fifteen years imprisonment for possession of cocaine, and Delcamp was sentenced to thirty years imprisonment for possession of cocaine with intent to deliver. Both received seven year sentences and were fined $8,000 for possession of drug paraphernalia. Each appellant has filed a brief, and each raises some points which are the same as those raised by the other. Each also raises a separate point not raised by the other. We will discuss the points the appellants have raised in common and then discuss the matters raised individually by them. We find there was no prejudicial error, and thus we affirm.
About a week before the arrests in this case, the police had arrested for drug possession a person who became a confidential informant. The informant told the police that Delcamp was trafficking in drugs, and that he, the informant, had purchased drugs from Delcamp. The testimony showed that Delcamp’s residence had been the subject of complaints by neighbors with respect to the heavy traffic in and out, especially at night. The informant was “wired” with a body mike and sent by the police to make a “controlled buy” from Delcamp at the latter’s residence, using marked currency.
After being in the residence, the informant told the police he had seen quantities of cocaine in a box on the kitchen table and on a mirror on the kitchen table as well as drug paraphernalia throughout the house. He made the purchase as he had been instructed.
Based on the information given them by the informant, a warrant was sought by the police to search Delcamp’s apartment. Circuit Judge Don Langston issued the warrant at 9:00 p.m. on March 7, 1986. The search began at 9:20 p.m. that evening. When the police entered the apartment, Delcamp was in the dining room where, on the dining room table, a bag filled with packets of what was later identified as cocaine was found. Four of the marked $20 bills were found on Delcamp’s person. Delcamp’s bedroom, identified by the personal items found there, was searched, and under a chair officers found a box containing drug paraphernalia along with more cocaine.
A bedroom identified as Holloway’s was also searched, and a number of items of drug paraphernalia were found there along with a white powder identified by the testimony of a state chemist as cocaine residue. Holloway also admitted having used cocaine at Delcamp’s residence earlier in the evening.
1. Disqualification
The most troublesome issue in this case is whether the circuit judge who tried this case should have disqualified when, in the process of a suppression hearing to determine the validity of the search warrant, it became apparent he would have to rule on the propriety of the warrant he had earlier approved. Canon 3. C. of the Code of Judicial Conduct, which was adopted by this court by per curiam order found at
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ....
In Adams v. State,
This Canon applies even though no request to disqualify and no objection to the failure to disqualify is necessary. We think the rule applied in Adams is equally applicable to the present case. The trial judge was required to rule upon the validity of a search warrant which he had issued. We think the trial judge should have recused. . . .[282 Ark. at 321 ,668 S.W.2d at 940 ]
The Bliss case was retried and the convictions again appealed to this court. In our second opinion in the case, we said that in reversing the first judgment we “. . . held that the trial judge had erred in not requiring the prosecutor to file a bill of particulars and in not recusing with respect to a motion to suppress a search conducted on the authority of a warrant issued by the judge himself.” Bliss v. State,
We now conclude that our statement in the first Bliss opinion went too far with respect to recusal. Canon 3. C. (1) (a) does not require recusal when the judge has obtained knowledge of the facts of the case before him from previous judicial proceedings in that very case. State v. Thompson,
At least one court has said specifically, with reference to the canon, that participation of a judge in a probable cause determination does not necessarily disqualify him from trying the case on the merits. See State ex rel. French v. Hendricks Superior Court,
While we have no Arkansas case, other than the first Bliss opinion, interpreting the canon in this respect, we have earlier cases indicating that a judge is not disqualified as the result of participation as a judge in an earlier phase of the litigation. See Bates v. State,
We agree with the decisions of other jurisdictions holding that Canon 3. C. (1) (a) of the Code of Judicial Conduct is not meant to preclude participation of a judge who has obtained knowledge of a case through previous judicial participation in it.
2. The affidavit
The appellants argue that the affidavit upon which the search warrant was based misled the judge by not mentioning that the informant was a person who had been convicted of a previous drug offense and was under charges at the time he cooperated in this case. They rely on Ark. R. Crim. P. 13.1 and its provision that if the affidavit is based on hearsay the affiant shall “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.”
In United States v. Leon,
3. Nighttime search
The warrant form used by the judge contained alternative wordings, in some instances with the correct ones to be checked. In other instances the incorrect phrases were to be “lined out.” The judge checked the space indicating “the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.” However, he left unmarked these “line out” alternatives: “YOU ARE HEREBY COMMANDED to search the place... (at any time in the day or night) (between the hours of 6:00 A.M. and 8:00 P.M.) . . . .” The appellants contend the warrant was thus facially deficient as the basis for the search and that there was no necessity for a nighttime search even if the warrant had been sufficient to command it. Arkansas R. Crim. P. 13.2 (c) provides that a search must be conducted between the hours of 6:00 a.m. and 8:00 p.m. unless one of three special circumstances permitting a nighttime search can be shown.
The abstracts submitted by the appellants do not show that either of these matters was raised in the trial. The argument pointing out the allegation of an insufficient basis for a nighttime search was apparently raised for the first time in a post-trial motion for a new trial, and the appellants do not suggest the trial judge abused his discretion by refusing to grant a new trial. The court was given no timely opportunity to rule on an objection to the nighttime search, and no opportunity at all to rule on the question of the facial defect in the warrant. The failure to make an argument which might have been made at trial waives the argument for purposes of appeal. Campbell v. State,
4. Instructions
Arkansas Model Criminal Instructions 3304 and 3307 deal with the distinction between actual and constructive possession. Each contains the following:
[There are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person or persons. (If two or more persons share actual or constructive possession of a thing, either [or both] may be found to be in possession.)]
The appellants argue that the words, “of that thing” should have been added to the instruction, as they requested. They contend that without those additional words the jury could have found them guilty if it determined they shared possession of anything, as opposed to sharing possession of the prohibited items. We disagree with the appellants’ argument, as we are convinced that no jury would convict an accused charged with possession of prohibited drugs if it found only that he shared possession of an item, such as a piece of furniture, which was not contraband.
The appellants also wanted an additional sentence with the instruction, as follows: “However, where possession is shown by joint occupancy only, additional factors connecting the defendant to the object must be proven (established), or (shown),” citing Osborne v. State,
5. Failure to sever
The appellants asked the trial court to sever their cases, and their motion was refused. They contend there were three reasons the severance should have been granted. First, they claim to have had antagonistic defenses; second, they contend the state introduced evidence against them “en masse,” and that thus the jurors could have been indiscriminate in its application, and third, Holloway argues that the evidence of prior sales by Delcamp was prejudicial to his case.
There is nothing of record to support the allegation that the defenses of the appellants were antagonistic. Neither attempted to claim innocence at the expense of the other. Nor are we persuaded that either suffered by the introduction of evidence without sufficient additional evidence to show why it was relevant to one or the other. For example, when the evidence with respect to the drug paraphernalia was found, its location at the time of seizure was noted. Nor are we persuaded that Holloway was necessarily prejudiced in the eyes of the jury as the result of the evidence of prior sales by Delcamp. Holloway was convicted only of possession.
We will not disturb the decision of a trial judge refusing to sever unless we find there has been an abuse of discretion. McDaniel v. State,
6. Sufficiency of the evidence
Appellant Holloway contends there was insufficient evidence to sustain his conviction. The essence of his argument is that there was nothing in evidence to connect him with the sales of cocaine alleged against Delcamp. Again, it is enough to say that Holloway was not convicted of possession with intent to deliver, but of simple possession. Thus it does not matter that nothing connected him with the sales, as the evidence was clearly sufficient to show him to have been in possession of cocaine.
The paraphernalia found in Holloway’s bedroom, the cocaine residue found there, and Holloway’s admission he had used cocaine earlier in the evening while in Delcamp’s residence were sufficient to take the evidence above mere suspicion or conjecture and to compel a conclusion one way or the other. Williams v. State,
7. Prior drug sales
Appellant Delcamp argues it was error to have admitted the testimony of Karen Knox to the effect that he had, some nine to ten months earlier, told her if she knew anyone else needing cocaine she should refer that person to him.
Arkansas Rules of Evidence 404(b) permits evidence of prior bad acts for the purpose of proving intent. Delcamp was charged with possession with intent to deliver. The evidence was thus admissible for that purpose. Nor are we concerned with the fact that the evidence was of an indication of the intent to sell drugs nine or ten months before the events of this case. In Lincoln v. State,
The convictions are affirmed.
Lead Opinion
Supplemental Opinion on Denial of Rehearing
December 14, 1987
1. Search & seizure — search warrant — validity. — Where a search warrant showed that a nighttime search was authorized but the judge neglected to line out the appropriate alternative at another place on the face of the warrant, this technicality will not invalidate the warrant.
2. Search & seizure — search warrant should normally be executed during the day — exception. — A search warrant should provide for execution between the hours of six a.m. and eight p.m. unless the judge has reasonable cause to believe, among other things, that the objects to be seized are in danger of imminent removal. [Ark. R. Crim. P. 13.2(c).]
3. Search & seizure — nighttime search — justification. — A nighttime search was justified where the judge had been told of the heavy traffic and use of drugs during the evening hours at the place to be searched, and the affidavit stated that the controlled buy of cocaine earlier in the evening had been made with photographed bills and the chances that these same bills would be in the possession of the suspects would diminish with the passage of time.
Appellant Brent Kevin Holloway has correctly pointed out that our initial opinion was incorrect in stating that he had not given the trial court an opportunity to rule upon the facial validity of the search warrant which led to evidence used against him and upon his objection to the insufficiency of evidence to justify a nighttime search. Both were argued by him at a pre-trial hearing.
The Face of the Warrant
In our original opinion we discussed the fact that the warrant at one point showed that a nighttime search was authorized although the judge neglected to line out the appropriate alternative at another place on the face of the warrant. We are satisfied that the warrant showed that a nighttime search was authorized. This sort of technical attack on the warrant is not favored. Watson v. State,
Basis of Nighttime Search Order
We have no doubt that the judge could reasonably have concluded that a nighttime search was justifiable in the circumstances presented to him. The affidavit of Detective Robert Ross of the Fort Smith Police Department showed that he had learned, through information obtained in the process of making the controlled cocaine buy at the residence to be searched, that illegal drug sales were taking place there. The controlled buy had been made “during the evening hours” on the very evening the warrant was sought. It was then that the “additional quantities of cocaine” were observed. The affidavit stated that information had been obtained that “numerous vehicles [were] coming and going from this residence especially at night.”
According to Ark. R. Crim. P. 13.2(c), a search warrant will provide for execution between the hours of six a.m. and eight p.m. unless the judge has reasonable cause to believe, among other things, that “the objects to be seized are in danger of imminent removal.” In Murray v. State,
While we agree with the appellant that both these issues were presented to and ruled upon by the trial judge, we conclude his rulings on them were not erroneous. Therefore, the petition for rehearing is denied.
Dissenting Opinion
dissenting. There was no need for the majority to establish a new rule, not supported by case law, that a judge need not recuse when he is asked to determine the validity of a search warrant he had previously authorized before the case was filed by the state. The rules stated in Bliss v. State,
I agree that the first Bliss decision was not reversed solely on the issue of the judge subsequently ruling on the validity of a search warrant issued by him. We had other grounds for reversal and therefore did not have to place much emphasis on the search warrant issue. But the reasoning of the majority for overruling Bliss is unconvincing.
The cases from other jurisdictions which are relied upon by the majority are inapposite. The first case is State v. Thompson,
The majority cites State ex rel. French v. Hendricks Superior Court,
Reading v. Ball,
The only other foreign case relied upon by the majority is Stiles v. State,
The final case relied upon in the majority opinion is Bates v. State,
I agree with every case cited in the majority opinion on the disqualification issue. However, not one of them concerns the issue of a judge ruling on probable cause to issue a search warrant when the same judge issued the warrant. Bliss was and still is the better rule.
I would reverse this case for the trial judge’s prejudicial error in failing to recuse. Moreover, probable cause to support the search warrant was not shown. Without the evidence that would have been suppressed after a finding of no probable cause, Holloway could not have been convicted.
The “facial” defect in the search warrant referred to by the majority was that it did not authorize a nighttime search. That defect was fatal — not facial. Our rules of criminal procedure require that a search warrant must be served between the hours of 6:00 a.m. and 8:00 p.m., unless it is specifically authorized to be done in the nighttime. Thus, the search warrant in question should not have been served during the night. Such error is equivalent to serving a search warrant that does not contain an address or serving an arrest warrant that leaves off the name of the person to be arrested.
I am puzzled by the statement in the majority opinion that the court was given no timely opportunity to rule on an objection to the night time search or an opportunity to rule on the question of the facial defect in the warrant. A timely pre-trial motion to suppress was filed on March 26, 1986, alleging that the scope of the search exceeded that authorized by the warrant. The motion stated in part as follows:
[T]he seizure was based on the authority of the search warrant issued as aforesaid, and the scope of the search by which things were seized or discovered, exceeded that authorized by the warrant ....
This specifically brought the matter of the unauthorized nighttime search warrant to the trial court’s attention six months before the trial. Searches during the night must be specifically authorized. This one did not authorize such a search. How could the appellant have been more specific?
The most prejudicial error in the proceedings below, however, was the failure of the trial court to sever the defendants’ trials. Antagonistic defenses were apparent on the face of these charges and were evident throughout the trial. Holloway had never before been arrested. Severance should always be granted whenever either defendant is unduly jeopardized. McDaniel v. State,
Practically all of the evidence indicated that the person possessing and dealing drugs was either Delcamp or Francis R. Gallant. There was not the slightest effort to limit the evidence of prior drug sales by Delcamp solely to the question of his guilt. The record does not reveal any evidence linking Holloway to the sale or possession of drugs found in the house. Holloway simply rented a room in which he had used drugs on a couple of occasions in the past. Nothing uncovered in Holloway’s room established possession or sale of cocaine. The majority opinion seems to imply that usable quantities of cocaine were found in Holloway’s room. There was no such evidence.
I think this issue is governed by Osborne v. State,
In the interest of justice and fair play this case should be reversed and remanded with directions to grant Holloway a separate trial.