*1 Carroll Don NEAL v. STATE of Arkansas CR 94-1343 Court of Arkansas
Supreme delivered Opinion May *2 Ziser, J. for appellant. Andrew Gen., Raupp, Att’y DavidR. Asst. Bryant, Att’y by: Winston Gen., for appellee. Don Neal was Justice. Carroll convicted Newbern,
David with intent to of delivery marijuana, possession marijuana of deliver, He was drug sentenced and possession paraphernalia. Mr. Neal raises four years prison. as an offender to habitual 404(b) (1) Ark. R. vio- He contends Evid. was points appeal. of testimony lated into evidence about prior, admission by We hold the evidence was admissible drug sales. uncharged in a search of found negate drugs police (2) He had been thеre some other “planted” person. his home of a insuffi- an affidavit argues support it that evidence it sufficient because asserted cient. We hold was not conducted lost if the search were was in danger (3) Neal contends the misused immediately. Mr. We do not reverse on that argu- subpoena power. prosecutor’s (4) he Finally, contends is shown. ment because no prejudice the infor- amendment of Trial Court not have permitted should an habitual offender on charge mation him to against We hold the amend- Kansas of an conviction. basis expunged is affirmed. The judgment ment was improper. Shеriff’s County the Carroll early In late at the home drug illegal activity investigated possible Department 1992, a confidential informant pur- of Mr. Neal. In December On Mr. Neal and recorded transaction. chased cocaine from Lt. Sheriff’s evening Hyatt Depart- of April informants, Boyte Mitch arranged ment two other confidential Mr. Neal’s purchase at Randy attempt marijuana Wagner, $60 in marked bills buy money Lt. Hyatt Boyte home. gave *3 recorder. and outfitted him with a microcassette home, at Mr. Mr. that when he arrived Neal’s Boyte testified containing to the and safe he Mr. Neal bedroom accompaniеd $50, Mr. to marijuana. arranged buy marijuana gave Mr. Boyte bills, $20 received ten dollars Neal the three marked and items drug para- Mr. he observed various of change. Boyte said Mr. Neal sell to another man. marijuana saw phernalia and the Lt. tape Hyatt. to Boyte brought marijuana out an After Lt. made аffidavit seek- tape, Hyatt to listening it Berryville warrant and to ing nighttime search affidavit, In the Lt. set forth Municipal Coxsey. Hyatt Kent Judge transac- of both the December 1992 cocaine circumstances that and the that had occurred earlier tion transaction marijuana reliability He facts of the infor- еvening. showing also stated mants. In the final the reasons for his belief gave paragraph, nighttime justified: that a that are in
It is further believed the above described items removed from said or danger being premises destroyed. A needed the marked night time search warrant is because imminent being nature is in money by very danger its otherwise of. removed from premises disposed addition, to according the statements the informants there a number of at the who were individuals residence were Don Neal they buy marijuana. indicated that going informa- has indicated that he has sources of previously activities the Carroll tiоn which have alerted him to on these Office in relation to him. Based County Sheriff’s it is of the service any delay circumstances believed the evi- of the warrant result in the may destruction dence. that it issued a search warrant and indicated
Judge Coxsey was to be served at because the house to bе searched nighttime was difficult of access and the evidence to be seized speedy in imminent danger of destruction or removal.
Lt. and other officers executed the warrant about 9:00 Hyatt result, and various items p.m. 1993. As a April were seized. drug paraphernalia trial, Prior to the evidence that Mr. Nеal moved to suppress was seized as a result of the search. He stated that the affidavit search, did not the need for a adequately justify that the informants the basis for the testimony provided whose warrant were unreliable. The motion was denied. 404(b)
1. Rule trial, Prior to in limine the State Mr. Neal moved to prеvent offering they from of several witnesses who said had bought marijuana from him in the He the State past. argued sought to introduce that evidence his bad charac- prove ter and to commit this crime and that it was predisposition type 404(b). inadmissible Rule The State according responded other, the еvidence was offered for relevant independently *4 First, reasons. the State noted that Mr. Neal had made a statement in in claiming drugs recovered the search were his placed Indeed, home without his testified that knowledge. ultimately men two he did not know came into his home and insisted they $50 owed him and he money had one of them throw the down just to rid of him. get Accordingly, argued an acts would be used to that there was absence prior prove of mistake. The State could be argued also acts used to prior show method of The Trial Court denied Mr. Neal’s operation. motion in limine and testimony cоncerning marijuana allowed 3, 1992, after buys December “since can be used show they lack of operandi.” mistáke or modus
The argu State Mr. Neal failed to argues preserve ment for because he did not make an at trial appeal objection
493 objection- he considered with the cоntemporaneous When motion limine the matter. the merits of able. We treat denied, raised objection has evidence been seeking to exclude its been having without may appeal in the be pursued motion Massengale v. the evidence received. renewed when 743, (1995). 894 594 S.W.2d was admissi- that the evidence only now argues The State method of operation. ble because it showed 404(b) Rule provides: Crimes, Acts. Evidence of other
(b) or Wrongs, Other crimes, the char- wrongs, prove or acts is not admissible in order that he acted confor- acter of a to show person however, for other pur- It be admissible may, therewith. mity intent, motive, of opportunity, such as poses, proof of mis- identity, or absence plan, knowledge, preparation, or accident. take prior have whether the evidence of strong
We doubts See operation. to show a method of drug sales was admissible view, (1995). In 894 S.W.2d v. Diffee however, we have no hesi asserted defense evidence Sullivan was admissible. tancy holding State, (1986), we wrote: 404(b) if the evi- as meaning We Rule interpret the offense of acts is relevant to dence of bad show prior occurred, not thus accused which appellant character, we will not bad introduced to show evidence be able to tie the may exclude it. While we intent, “motive, opportunity, prepa- specifically proof ration, or absence mistake knowledge, identity plan, accident,” will regard if we relevancy an independent it has rule, one those words of the “such as” being, in the it proof. permissible objects Vernon App. See also claim, made in coun- which was In view of Mr. Neal’s knowledge had no that he jury, statement before opening sel’s *5 home, evidence of the the of the his the presence testimony. doubt to cast grievous upon was rеlevant sales prior limine, In Neal his motion included an argu ment that the introduction of the evidence would have a preju dicial effect which outweighed its value. Ark. R. Evid. probative We 403. the agree strong, effect was but in view prejudicial again asserted, defense Mr. we say Neal cannot prejudiсe discretion, was unfair. The was within the Trial decision Court’s State, (1993), Robinson we cannot say discretion was abused.
2. Nighttime search
Mr. Neal contends his motion to
suppress
evi
dence,
including bags marijuana
drug paraphernalia, found
in his home should have been granted because the search was
illegаl. He contends the affidavit
the warrant did not
supporting
a
justify
nighttime search.
such instances we make an inde
determination, based on the
pendent
totality
circumstances
and reverse
Trial
only if the
Court’s
is
ruling
clearly against the
of the evidence.
preponderance
512,
Richardson v.
(1993);
(i) access; be searched place to is difficult of speedy or (ii) to be objects seized are in danger imminent removal; or
(iii) the warrant can only be safely successfully exe- cuted at or under nighttime circumstances the occurrence of which is difficult with predict accuracy;. . . that,
Our is requirement serve as proper basis search, for a nighttime evidence to the magistrate from whom a search nighttime warrant sought must be of facts justifying such a warrant rather than mere cоnclusions. Hall
The of Lt. Hyatt affidavit revealed his chief reason for requesting warrant his concern marked money used confidential informants to purchase marijuana from Mr. would be removed from Mr. Neal’s *6 others pre- the said there were home. He stated that informants Judge marijuana. were to they going purchase sent who indicated doing in the course could have concluded that Coxsey easily from have been dispatched business the marked money might justified was Mr. Neal’s home. We hold the as quickly that conduct the search ground necessary the it was to the informants reported as after the confidential possible purchase had made Mr. Neal. they from subpoenas
3. Prosecutor A witnesses deputy prosecutor may subpoena inves- before him or with to matters appear respect to her 1994). tigated. Ark. Code Ann. 16-43-212 (Repl. § wit- defense argues statutory was violated because power charges were nesses were several months after the subpoenaed original argues filed and one month to the trial date. He prior for inves- strictly is reserved prosecutor’s subpoena power and late in tigative power use this so purposes, constitutes a clear abuse of that proceedings power.
A to prosecutor may prepare witnesses subpoena not trial after have as as the is charges long power been filed (1984). Mr. abused. Todd S.W.2d 345 an in give Neal does not us a there was abuse holding reason for out, he nor this case. As the State has neither alleged points of the resulting pros shown from misuse any prejudice alleged not ecutor’s In the absence of we do subpoena power. prejudice, (1987). reverse. Parker v.
4. Expunged conviction to and evidence allege, The information was amended show, convicted that Mr. Neal was previously Kansas, Subject to Douglas County, Property of Concealing Interest. Security information,
Mr. Neal the amendment to the argues trial, made It well settled that shortly untimely. before has State amend an to a after may up jury information point it, long been but as sworn before the case has been submitted degree as the amendment does not the nature or change crime if charged, Kilgore the accused is not surprised. Mr. Neal contends the Kansas conviction was subsequently and been expunged should have used enhance his sen- tence. In out the making argument, similarities points that, definitions contends “exрunge” “pardon,” we prohibit use of conviction to enhance a later pardoned *7 sentence, an conviction also be expunged should not used for that purpose. a
Although
conviction cannot be used to
pardoned
sentence,
State,
449,
enhance a later
v.
Duncan
494
(1973),
S.W.2d 127
оur
clearly
cases
the use of an
support
expunged conviction to enhance a sentence as an
offender.
habitual
166,
(1985);
Walters v.
Affirmed. JJ., and Dudley, Brown, dissent. Roaf, Brown, Justice, Robert L. The affirms dissenting. majority the introduction of myriad marijuana apart sales from charge at issue for the that they reason are relevant under independently 404(b). Rule I disagree. As defense in his argued counsel motion trial, in limine before “Mr. won’t Neal receive a fair trial if the jury hears other twenty incidents he’s tried on not we’re not to defend The denied prepared on.” trial court motion and stated that other be marijuana buys could used to prove lack of mistake or operandi. modus The majority opinion — discounts those rationales and affirms for reason different independent The relevancy. majority also refers to the opinion fact that Neal’s marijuana counsel denied in his selling opening statеment. I do not believe that such a denial state- opening ment should open the door to wholesale evidence of other crimes. Indeed, what defendant admits the crime in statement? opening
The following testimony by the prosecutor State’s case-in-chief: the of Mitch testimony Boyte (pur- chased marijuana from 20 or 25 times and others buy saw times), 10 or 12 Jamie Edmondson from (purchased marijuana him), Neal and buy saw others from Mike marijuana Bryant (pur- chased marijuana times), from Neal 8 or 10 Shawn John Bryant times). (purchased marijuana from Neal 30 or 40 Had case, Neal denied that he ever sold part Pyle rebuttal. See have been appropriate would (1993). Alternatively, sought these sales and Neal with have charged could prosecutor have The then would trial. the various counts for join or plan, of a scheme single were part had to show that sales 22.2(a). Ark. Crim. P. See R. if severance was rеquested. State, 223 The landmark decision Alford bad acts to (1954), using prove other addresses crime: exclusion, rule of the fundamental
No one doubts
the commis-
from proving
which forbids
prosecution
another.
crime
of the commission of
sion of one
proof
of other
to adduce evidence
Thе State is
permitted
of persuading
jury
for the
offenses
purpose
likely
be guilty
is a criminal and is therefore
accused
short,
of other
proof
investigation.
under
charge
*8
relevancy to show
only
never
when its
crimes is
admitted
character,
man of bad
addicted to
is a
prisoner
crime.
333,
In
with the same issue
dealing
had sold LSD Robbie relevancy had no except on other occasions dealt before hence was drugs that Sweatt had show done That is again. рrecisely type to have so likely that must be excluded. proof 913, 652, State, 650, 473 S.W.2d 914 Sweatt v. True, sales admissibility past drug we have approved limited of what the defen- in certain but in the context cases drug he had told witness about other sales dant the prosecuting State, 12, 598 74 v. S.W.2d night made that (Young (res sale (1980) drug or in the context of previous gestae)); v. Ark. witness 312 (Scroggins prosecuting made the same (1993) (intent)); in the a pre- 400 context of 848 S.W.2d made witness prosecuting comment the defendant vious (Holloway drugs about selling (intent)). (1987) me,
To what at this trial in happened the State’s case-in- chief was prejudicial. Had Neal mounted denial as a defense in case, the four witnesses would have been appropriate rebuttal. See Pyle But this is not supra. what transpired. I respectfully dissent.
Dudley Roaf, JJ., join.
Alge Ray WILLIAMS v. STATE of Arkansas CR 95-25
Supreme Court of Arkansas Opinion delivered May