Biggers v. State

• Decision Date: 27 June 1994
• Docket Number: No. CR,CR
• Citation: 878 S.W.2d 717,317 Ark. 414
• Parties: James Henry BIGGERS, Appellant, v. STATE of Arkansas, Appellee. 93-913.
• Court: Arkansas Supreme Court

Page 717

878 S.W.2d 717

317 Ark. 414

James Henry BIGGERS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-913.

Supreme Court of Arkansas.

June 27, 1994.

Jeff Rosenzweig, Little Rock, for appellant.

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

MARCELLA J. TAYLOR, Special Associate Justice.

James Henry Biggers was convicted of two counts of delivery of a controlled substance for which he received a sentence of 40 years imprisonment and a fine of $25,000 on each count. Appellant raises six points of error on appeal. None has merit, and we affirm the trial court's ruling.

Appellant's arrest and subsequent conviction stemmed from his sale of cocaine to Robert Thomas, an undercover agent of the First Judicial District Drug Task Force, on the evenings of September 20 and 21, 1991. Appellant was arrested pursuant to an arrest warrant dated November 7, 1991, and charged by prosecutor's information in January 1992. During the discovery phase of the trial, appellant found, inter alia, that Thomas was not a certified law enforcement officer, that Thomas had not been truthful with the First Judicial District Drug Task Force during the hiring process, that Thomas had previously been suspended by other law enforcement agencies for misconduct which included instances of lying and an investigation for theft of property, and that the First Judicial District Drug Task Force had failed in several respects to comply with the regulations of the Commission on Law Enforcement Standards and Training ("the Law Enforcement Commission") in the hiring of Thomas.

At trial, Officer Thomas testified that he purchased cocaine from appellant for $100 on the evening of September 20, 1991, at Augusta and that he returned to Augusta the following evening and made a second $60 purchase of cocaine from appellant. Thomas also testified that an individual named Buster Driver had taken him to appellant's residence for the purpose of purchasing cocaine on both occasions. During cross-examination, Thomas was asked about and admitted to the prior instances of lying and the investigation of him for theft of property. Appellant was not allowed to present extrinsic evidence of Thomas's prior misconduct.

Officer Timothy McMahon, another undercover officer, testified that he and Thomas were in separate vehicles on the evenings of the undercover operations, but that he witnessed the drug buy between appellant and Thomas on September 20. McMahon also testified that although he saw Thomas and appellant in close proximity to each other, he was not able to see the actual purchase on September 21, 1991.

The first two assignments of error raised by appellant are that the trial court erred in failing to dismiss the prosecution against him because: (a) the hiring of Thomas was in violation of the regulations of the Law Enforcement Commission; (b) the arrest was illegal because the magistrate who issued the arrest warrant was misled by the officer who swore out the affidavit of probable cause; and (c) there was prosecutorial misconduct during the discovery phase.

Appellant points to numerous errors in the hiring of Thomas. Thomas was not a certified law enforcement officer. Although there was testimony by the officer in charge of hiring Thomas that he spoke twice with Thomas's former Chief of Police about Thomas, no written documentation of the background check was maintained in the file as required by the regulations of the Law Enforcement Commission. Thomas was not required to have a psychological examination prior to hiring as required by the regulations. The initial employment report was not filed with the Law Enforcement Commission within ten days of hiring as required by the regulations.

Appellant cites Ark.Code Ann. § 12-9-108(a) (Supp.1989), which states: "Actions taken by law enforcement officers who do not meet all of the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards and Training shall not be held invalid merely because of the failure to meet the standards and qualifications." That section, according to appellant, does not save the lack of adherence to the regulations by the First Judicial District Drug Task Force because the regulations are requirements placed upon the hiring agency, not the individual officer. In this assertion, appellant is correct. But appellant also asserts that the prosecution against him was invalid because Thomas was not hired in compliance with the minimum standards set by the Law Enforcement Commission. In that assertion, appellant is not correct.

Ark.Code Ann. § 12-9-108(a) (Supp.1989) is inapplicable to the facts of this case. Thomas was not the arresting officer. He was the person who made the purchases from appellant and who served as a witness against appellant. He is not disqualified from testifying because he was not a certified law enforcement officer. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990). His role in this matter was not substantially different than that of a confidential informant and the trial court did not abuse its discretion in refusing to dismiss the prosecution against appellant because Thomas was not hired in compliance with the regulations of the Law Enforcement Commission.

Appellant also asserts that the prosecution against him should have been dismissed because the arrest was illegal. The alleged illegality stems from the fact that the officer who swore out the affidavit did not reveal to the magistrate who issued the arrest warrant that Thomas was not a certified law enforcement officer, that the First Judicial District Drug Task Force failed to adhere to the regulations of the Law Enforcement Commission in the hiring of Thomas, that Thomas had been suspended from another law enforcement agency for lying to his supervisors, and that Thomas's written report of the cocaine purchases from appellant differed from his written report of his cocaine purchase from Buster Driver.

An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or an absolute argument against a valid conviction. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Pipes v. State, 22 Ark.App. 235, 238, 738 S.W.2d 423 (1987). An invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle a defendant to be discharged from responsibility for the offense. O'Riordan v. State, 281 Ark. 424, 426, 665 S.W.2d 255 (1984); Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).

Appellant raises a Franks v. Delaware argument in asserting that the officer who swore out the affidavit of probable cause willfully misled the magistrate. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, the Court addressed the issue of the validity of a search warrant issued pursuant to an affidavit which contained a false statement, knowingly and intentionally made, or made with reckless disregard for the truth. The issue of omissions, rather than false statements by the affiant, was recently addressed by this court in Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), in which we noted that the standards articulated in Franks require a knowing intent to deceive, or a reckless disregard of truth. Pyle, 314 Ark. at 175, 862 S.W.2d at 828. Matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit and which render what is in the affidavit effectively false because of their nondisclosure. Id.

Appellant presented no evidence of a knowing intent to deceive the magistrate or reckless disregard for the truth. Officer Birchler, the affiant, testified that he was unaware of Thomas's uncertified status, of any irregularities in the hiring of Thomas, or of any instances of prior misconduct on the part of Thomas. Additionally, we cannot say that this information is a material circumstance which contradicts the incriminating factors in the affidavit or renders what was in the affidavit effectively false because of its nondisclosure.

Appellant's argument with regard to the differences in the reports made by Thomas following the cocaine purchases from appellant and from Buster Driver presupposes that Driver was charged with the same sale as was appellant. There is no evidence in the record to support that supposition; the proffered evidence (Thomas's reports) tends to show that Thomas made two buys the night of September 20--one from Driver and a later one from appellant. The arrest was not illegal and the trial court did not abuse its discretion in denying appellant's motion to dismiss the prosecution.

Appellant also argues that the prosecution should have been dismissed because of prosecutorial misconduct in the discovery phase. Appellant's discovery requests centered around gathering information about Thomas, who, by the time of appellant's arrest, had left the employ of the First Judicial District Drug Task Force and was apparently residing in Louisiana. Appellant points to the slowness with which the prosecutor complied with discovery requests and misstatements by the prosecutor regarding Thomas's status as a certified officer, the existence of a video tape of the purchases, and the representation that notes from a 1986 background check of Thomas made by the El Dorado Police Department were notes from the 1991 background check of Thomas made by the First Judicial District Drug Task Force.

The key in determining if a reversible discovery violation exists is whether the defendant was prejudiced by the prosecutor's failure to disclose. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). Appellant demonstrates no prejudice. Prior to the trial appellant was fully aware that Thomas was not a certified law enforcement officer, that no video tape existed, and that the notes of the background check on Thomas were generated in 1986 by the El Dorado Police...