Cary v. State

• Decision Date: 22 March 1976
• Docket Number: No. CR75--159,CR75--159
• Citation: 259 Ark. 510,534 S.W.2d 230
• Parties: John Michael CARY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 230

534 S.W.2d 230

259 Ark. 510

John Michael CARY, Appellant, v. STATE of Arkansas, Appellee.

No. CR75--159.

Supreme Court of Arkansas.

March 22, 1976.

Don Langston, Fort Smith, for appellant.

Jim Guy Tucker, Atty. Gen., by Terry R. Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant John Michael Cary was convicted of possession with intent to deliver, heroin in violation of Ark.Stat.Ann. § 82--2617(a)(1)(i) (Supp.1975) Act 590 of 1971, as amended. It was alleged in the information that the offense occurred on January 10, 1974. Prior to trial, appellant filed a motion to suppress heroin seized in a search of premises at 1708 South 'R' Street, Apt. 6, in Fort Smith pursuant to a warrant issued by the Judge of the Municipal Court of Fort Smith. The warrant was issued upon an affidavit made by Sgt. Bill Reather. The affidavit read substantially as follows:

* * * On the afternoon of January 5, 1974, I received information from a confidential but reliable informant who has proved very reliable in the past. The informant told me that he had been in Apartment No. 6, 1708 South 'R', in Fort Smith, Arkansas, an apartment he knew was shared by John Michael Cary and Larry Williams. The Informant said while he was in the apartment the afternoon of January 5, 1974, he saw a large quantity of heroin that had been broken down into small packages called 'quarter-T's.' That on January 2, 1974, affiant as working with this same confidential and reliable informant. On that date informant told me that John Michael Cary had some heroin and was selling it from his apartment. On January 1, after talking with the informant I arranged for him to make a controlled buy of heroin from the above-described apartment. He went inside the apartment and then when he came back out he got into my car and gave me a small plastic bag containing a white powdery substance which was later field-tested and proved to be heroin. The informant told me that John Michael Cary and Larry Williams were both in the apartment at the time he made the buy. That on January 9, 1974, I received information from the same confidential but reliable informant that he had been in the apartment of John Michael Cary and Larry Williams that day and he personally observed a large quantity of heroin that had been broken down into small packages called 'quarter-T's.' That recently Captain Rivaldo of the Narcotics Unit of the Fort Smith Police Department interviewed John Michael Cary and Cary told him that he was living in Apartment No. 6 at 1708 South 'R' in Fort Smith, Arkansas. Based on the above the affiant has reason to believe that heroin and other dangerous drugs are now being stored on the premises known as Apartment No. 6, 1708 South 'R', Fort Smith, Arkansas, the residence of John Michael Cary.

Appellant contends that the affidavit was defective in that it contains no statement of facts from which the magistrate could conclude that the unidentified informant was reliable.

In testing an affidavit for a search warrant, the issuing magistrate must render a judgment based upon a common sense reading of the entire affidavit and great deference should be shown his determination. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968). The sufficiency of the affidavit might indeed be subject to question, were it not for the fact that the earliest report made by the informant to the police officer was the result of the 'controlled buy.' The officer's relating the facts pertaining to that incident certainly gave the magistrate advice of underlying circumstances from which the officer concluded that the informer was reliable, so that the magistrate did not have to depend only upon the officer's suspicion, belief or conclusion. The magistrate's determination then, not being based simply upon the officer's conclusion, was sufficient to support the issuance of the warrant. Jones v. United States, 122 U.S.App.D.C. 370, 353 F.2d 908 (1965).

Appellant also argues that the circuit court erred in admitting testimony showing his participation in sales of marijuana on November 22, 1971, May 3, 1972, and December 20, 1973. He first objects that the first two were too remote in time from the date he is alleged to have committed the crime for which he was charged. The matter of remoteness is addressed to the sound judicial discretion of the trial judge, which will be interfered with by a reviewing court only when it is clear that the questioned evidence has no connection with any issue in the case. Caton v. State, 252 Ark. 420, 479 S.W.2d 537; King v. United States, 144 F.2d 729 (8 Cir., 1944). We find no abuse of discretion, particularly in view of the fact that there was testimony tending to prove intervening instances during the two years between the first and the offense charged. See Wilson v. State, 184 Ark. 119, 41 S.W.2d 764; King v. United States, supra.

Appellant next asserts that evidence of sales of marijuana should not be admitted to show intention to deliver heroin, because the sale of marijuana is a relatively minor offense, by comparison, and that marijuana is not sufficiently similar to heroin to have any relevance. His principal reliance is upon Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913. But in Sweatt, intent was not an issue. The defendant was there accused of the sale of LSD and based upon Alford v. State, 223 Ark. 330, 266 S.W.2d 804, we held that the only relevancy of prior sales of marijuana would be to show that the accused, having previously sold drugs was likely to do so again. But it is clearly pointed out in Alford that evidence of previous offenses bearing on intent is admissible. The test is not the comparative seriousness of the offenses. It is only necessary that they be similar in nature to the crime charged. Wood v. State, 248 Ark. 109, 450 S.W.2d 537; Wilson v. State, supra. There was sufficient similarity here. See, People v. Tabb, 137 Cal.App.2d 167, 289 P.2d 858 (1955).

Another alleged error is the denial of appellant's motion for a mistrial when a witness called by him mentioned on cross-examination that appellant was on parole at the time of the alleged offense. The answer was not in any way responsive to the prosecuting attorney's question. The witness did not finish the answer before he was interrupted by the objection. The circuit judge admonished the jury not to consider the statement as evidence of appellant's guilt. Appellant relies on cases from other jurisdictions as authority that an admonition is not sufficient to eliminate prejudice to a defendant arising from an injection into the trial of evidence of his prior criminal record. We have left the matter of deciding whether prejudice of improper evidence may be removed by an admonition largely to the discretion of the trial judge. The only alternative to the admonition was the declaration of a mistrial, a drastic remedy to be resorted to only when the prejudice is so great that it cannot be removed by an admonition. Hathcock v. State, 256 Ark. 707, 510 S.W.2d 276. See also Yarbrough v. State, 257 Ark. 732, 520 S.W.2d 227; Hill v. State, 255 Ark. 720, 502 S.W.2d 649; Parrott v. State, 246 Ark. 672, 439 S.W.2d 924. We find no abuse of discretion in this connection.

The question of the sufficiency of the evidence to sustain the court's denial of appellant's motion for directed verdict has required us to examine the testimony rather closely because it was so cryptically abstracted, and there are many references to testimony in the state's brief not disclosed by appellant's abstract. The manager of the apartment where the heroin was found pursuant to the search warrant previously mentioned testified that he rented the apartment in which the heroin was found to Susan Walker on December 15, 1973 for six months, for occupancy by three persons, one of whom was represented to be her husband. ¹ The 'husband' was the appellant but he was known to the manager as John Walker. The manager saw him about the premises during the first week in January, 1974. He had collected rent from appellant on December 20, 1973. On December 21, 1973, appellant had told Capt. Rivaldo of the Fort Smith Police Department that he lived at this apartment. The other occupant of the apartment was Lawrence Williams. Williams, called as a witness by appellant, testified that this apartment was not his permanent residence and that he only stayed there 'off and on.'

When the search was conducted, only Williams and Susan Walker were present. The heroin was found in small plastic bags inside a small plastic box folded in a rug, blanket or tapestry on top of a bedroom closet shelf. Sgt. Reather, one of the searching officers, found a glove in the closet. This glove bore appellant's name. Personal papers belonging to appellant were found in other rooms in the apartment. When the officers entered the apartment, Susan Walker was in another bedroom. Williams told the officers that he had been sleeping on the couch in the living room.

Williams, called as a witness by appellant, testified that he was the owner of the heroin and that appellant has never possessed it. He said that appellant had used heroin from the supply in his (Williams') possession and had, on one occasion, 'picked up the money' paid for marijuana Williams had sold. He also testified that Cary had left for Fayetteville in the daytime just preceding the 'raid,' which took place after 1:00 a.m. Williams stated that he saw appellant after the search and that appellant, knowing that the police were looking for him, asked if Williams had been caught with any heroin and if Williams had charged the officers for the heroin sample used for analysis. Williams also testified that 'whenever John left he told me that he was not going to wait around to go to trial.' He stated that other purchased heroin from him at the apartment.

Of course, in determining whether the evidence of appellant's guilt...