Wilson v. State, CR

Citation878 S.W.2d 755,317 Ark. 548
Decision Date11 July 1994
Docket NumberNo. CR,CR
PartiesSharlene WILSON, Appellant, v. STATE of Arkansas, Appellee. 94-160.
CourtSupreme Court of Arkansas

John Wesley Hall, Jr., Little Rock, for appellant.

Kent C. Holt, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant Sharlene Wilson was tried and convicted of possession of marijuana, delivery of marijuana, delivery of methamphetamine, and possession of drug paraphernalia. The jury sentenced her to a total of thirty-one years imprisonment in the Arkansas Department of Correction and one year imprisonment in the Hot Spring County Jail. She was fined a total of $11,000. On appeal Ms. Wilson charges the trial court with two errors: (1) denying her motion to dismiss based upon outrageous police conduct and (2) denying her motion to suppress the fruits of the search of her residence. Finding no error, we affirm the judgment of conviction.

Ms. Wilson was incarcerated in the Malvern City Jail awaiting trial. She was represented by counsel at the time. Officers with the Seventh Judicial District Drug Task Force wired an informant and sent her into the appellant's cell. After a brief conversation with the informant, Ms. Wilson discovered the transmitter. At no time did Ms. Wilson incriminate herself or supply any information pertinent to her case.

Officer Roger Walls testified he had information that Bryson Jacobs, who had been living with Ms. Wilson, was planning an escape from the Hot Spring County Jail. According to Walls's testimony, the informant was sent into the cell to uncover the plans for escape. However, other officers testified to a dual purpose in the use of the informant: to obtain information which could be used against Ms. Wilson and to obtain information regarding the escape.

The appellant moved to dismiss the charges against her based upon a Sixth Amendment violation. Ms. Wilson contends the outrageous conduct of the officers warranted the extreme remedy of dismissal of the charges. Because we find that no prejudice occurred, we will assume, arguendo, that the Sixth Amendment was violated under the circumstances of this case.

In United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), the United States Supreme Court held that "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the [Sixth Amendment] violation may have been deliberate." (Emphasis supplied.) Factually, Ms. Morrison had retained counsel to represent her in the pending criminal proceedings. Thereafter, two agents of the Drug Enforcement Agency, aware that she had been indicted and had retained counsel, sought to obtain her cooperation in a related investigation. They met with her without the knowledge or permission of her counsel. The agents told her it would be to her advantage if she cooperated but she would face a stiff jail term if she did not. At no time did Ms. Morrison incriminate herself or supply any information pertinent to her case. Ms. Morrison moved to dismiss the indictment. In determining that dismissal of the indictment was not appropriate, the Court noted:

[W]hen before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted. In addition, certain violations of the right to counsel may be disregarded as harmless error. [Citations omitted.]

Similarly, in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Court held that where a Sixth Amendment violation has occurred the defendant's own incriminating statements could not constitutionally be used by the prosecution as evidence against him at his trial. Once again, Mr. Massiah had retained counsel. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. At Mr. Massiah's trial these incriminating statements were brought before the jury. The Court held that Mr. Massiah was denied the basic protections guaranteed by the Sixth Amendment when such evidence was used against him at his trial.

Ms. Wilson acknowledges the holdings in Morrison and Massiah; however, she submits we should reverse and dismiss under Ark. Const. Art. 2, § 8 and § 10. We find the cited provisions of the Arkansas Constitution do not provide for such relief. Further, the appellant fails to allege she suffered any prejudice as a result of the surreptitious actions. We have repeatedly held that an appellant must show prejudice, because this Court will not reverse for harmless error. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992).

It is troubling to find in this record a clear implication that public officials charged with enforcement of law would, in concert, pursue a course calculated to circumvent fundamental provisions thereof. Not the least of our concerns is the fact that had the plan succeeded, the prosecution of these offenses would have been seriously jeopardized.

Turning to the second point, officers with the Saline County Sheriff's Office and the Seventh Judicial District Drug Task Force executed a search warrant at the home of the appellant. Officer Henry Efird's affidavit in support of the warrant recited that a confidential informant had made purchases of marijuana and methamphetamine from the appellant at the residence. Further, Officer Efird observed Ms. Wilson leave her residence and proceed to a meeting with the informant. At that time, the officer observed a transaction between Ms. Wilson and the informant.

During the search of Ms. Wilson's home, the officers discovered an amount of marijuana, an amount of methamphetamine, and drug paraphernalia. The appellant moved to suppress the evidence seized in the search on the ground that the affidavit contained omissions of fact which were material to the finding of probable cause and on the ground that the officers failed to "knock and announce."

At the suppression hearing, Ms. Wilson contended three exculpatory items were...

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8 cases
  • U.S. v. Brown
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 12, 1995
    ...incorporated the 'knock and announce' rule as part of the reasonableness demanded of a search....") with Wilson v. State of Arkansas, 317 Ark. 548, 878 S.W.2d 755, 758 (1994) ("There is no authority for Ms. Wilson's theory that the knock and announce principle is required by the Fourth Amen......
  • Echols v. State
    • United States
    • Arkansas Supreme Court
    • December 23, 1996
    ...Moore and brought him back. Thus, the finding that Misskelley was a reliable informant was not clearly in error. See Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994), rev'd on other grounds, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); Watson v. State, 291 Ark. 358, 724 S.W.2d ......
  • Griffin v. State
    • United States
    • Arkansas Supreme Court
    • October 30, 1995
    ...v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 145 (1985), and Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994). As the jury was permitted to consider five statements in which Griffin admitted to committing the murder, we cannot co......
  • US v. Reece
    • United States
    • U.S. District Court — District of Kansas
    • April 26, 1995
    ...in Wilson v. Arkansas, No. 94-5707, 1995 WL 243487. See 57 Cr.L.Rptr. 3003 (U.S.L.W. Daily Edition, April 5, 1995). In Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994), cert. granted, ___ U.S. ___, 115 S.Ct. 571, 130 L.Ed.2d 488 (1994), the Arkansas Supreme Court held that the Fourth Am......
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