Eastin v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: John B. Robbins
• Citation: Eastin v. State, 97 Ark. App. 81, 244 S.W.3d 718 (Ark. App. 2006)
• Decision Date: 06 December 2006
• Docket Number: No. CA CR 05-1324.,CA CR 05-1324.
• Parties: Max C. EASTIN, Appellant, v. STATE of Arkansas, Appellee.

244 S.W.3d 718

97 Ark. App. 81

Max C. EASTIN, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 05-1324.

Court of Appeals of Arkansas.

December 6, 2006.

Hurst, Morrissey & Hurst, PLLC, by: Q. Byrum Hurst, Hot Springs, AR, for appellant.

Mike Beebe, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., Little Rock, AR, for appellee.

JOHN B. ROBBINS, Judge.

Appellant Max C. Eastin was convicted in a jury trial of manufacturing methamphetamine, use of paraphernalia to manufacture methamphetamine, possession of methamphetamine, and simultaneous possession of drugs and firearms. Mr. Eastin was sentenced to consecutive terms totaling forty years in prison, and now appeals. Mr. Eastin raises the following four points for reversal: (1) The incriminating evidence should have been suppressed because the search warrant was based on a confidential informant whose reliability was not established; (2) The trial court erred when it refused to require the State to disclose the identity of the confidential informant; (3) There was insufficient evidence to support appellant's convictions; (4) The trial court erred in admitting a transcript of appellant's statement when the original tape no longer existed. We agree with appellant's first and fourth points, and we reverse and remand.

This case began on October 5, 2004, when Officer Pete Dixon obtained a warrant to search a houseboat on Lake DeGray where Mr. Eastin lived with his girlfriend, Teresa Holder. In support of the search warrant, Officer Dixon swore out the following affidavit:

1. Affiant states that on or about July 22, 2004, this Affiant was contacted by an individual that wished to cooperate with the Group 6 Narcotics Enforcement Unit, in that the individual wished to provide information to further felony drug investigations.

2. That this Affiant met with the aforementioned confidential informant and received numerous items of information including information on the informant in lieu of prosecution.

3. That, included in the information provided, the informant stated that Teresa Holder was living with her boyfriend, Max Easton on a houseboat docked at Iron Mountain Marina on Lake DeGray and that methamphetamine was being manufactured on the boat.

4. That the informant described the houseboat as being light in color with a maroon stripe, that the boat was named the "Not Yet", that it was docked on C Dock at the marina, and that the boat is owned by Max Easton's father, who lives in Hot Springs, Arkansas.

5. That on or about July 24, 2004, this Affiant confirmed through the marina employees that Max Easton did indeed live on the "Not Yet", which is in fact docked on C Dock at the marina, and that a female, presumed to be Teresa Hoder, is commonly there.

6. That on or about October 5, 2004, this Affiant was contacted by Clark County Investigator Will Steed and advised that he was investigating the theft of a personal watercraft and personal watercraft trailer, and that Max Easton and Teresa Holder were somewhat involved in the investigation. Investigator Steed stated that the watercraft and trailer were both stolen from Iron Mountain Marina and that the watercraft had been recovered in Hot Springs, Arkansas. During the course of the investigation Investigator Steed learned that the theft suspect is a friend of Max Easton's and commonly at Iron Mountain Marina to visit.

7. That this Affiant agreed to contact the aforementioned informant to see if any other information could be obtained with regards to the watercraft theft. This Affiant contacted the informant by phone and learned that the informant has been to the houseboat within the past seventy-two (72) hours. The informant stated that while in the houseboat a glass jar containing a pill soak was seen in plain view. The informant further stated that Teresa Holder possessed methamphetamine for personal use, and that they were undocking the boat at night and going out onto the lake to manufacture the drug.

8. That this Affiant contacted Investigator Steed and advised of the information. Investigator Steed confirmed through marina employees that the "Not Yet" has been going out onto the lake during nighttime hours lately.

When the search was conducted on October 5, 2004, Ms. Holder was the only person present at the boat, and she was injecting methamphetamine when the police arrived. The search of the boat uncovered various items of paraphernalia that are used to manufacture methamphetamine, as well as the finished product. The police also found a loaded handgun in a drawer in the master bedroom, along with coffee filters containing methamphetamine residue and a receipt bearing Mr. Eastin's name.

A pretrial hearing was held on Mr. Eastin's motion to suppress the evidence and his motion to reveal the identity of the confidential informant. At the hearing, Officer Dixon stated that he had not used the informant before, and that the informant had criminal charges pending and contacted the drug task force wanting to give information in exchange for leniency. Officer Dixon stated that the informant advised him that he had been on the boat within the past seventy-two hours and had observed methamphetamine. The informant further advised that the boat was being undocked at night to cook methamphetamine on the lake, although he did not personally observe it because he could not be on the boat while Mr. Eastin was there. The trial court announced at the hearing that it was denying both of appellant's motions.

At the jury trial, Officer Dixon described the methamphetamine manufacturing process and testified that it was being manufactured on the boat. During Officer Dixon's testimony, the State moved to introduce the transcription of a taped statement taken from Mr. Eastin the day after the search. Appellant objected arguing that the tape was the best evidence, but the prosecutor explained that the tape was destroyed in a fire in his office. Appellant's transcribed statement was admitted by the trial court over objection.

In Mr. Eastin's statement, he acknowledged that he lived on the boat, which was owned by his father, and that Ms. Holder had been living with him. While nobody else lived on the boat, he stated that a woman named Holly would come there to cook methamphetamine. Mr. Eastin admitted that he smokes methamphetamine, and that he provided matches and pills for Holly to use in the manufacturing process. Mr. Eastin also indicated that he would sometimes trade the pills for the finished product. He stated that he personally does not know how to manufacture methamphetamine. Mr. Eastin admitted that the handgun found during the search belonged to him. Ms. Holder also gave a statement to the police, and she too informed them that she and appellant provided matches and Sudafed to help Holly manufacture methamphetamine.

There were two other witnesses at trial. Charles Garner testified that he smoked methamphetamine and was on the boat during a cook. He stated that Mr. Eastin was standing next to Holly at the stove while she cooked, so he assumed Mr. Eastin was helping her. Ms. Holder testified that "Holly cooked and Max and I both assisted her. We would get up and get something if she needed it."

Although listed as his third point on appeal, we must consider appellant's sufficiency arguments before any alleged evidentiary errors in order to protect his right to be free from double jeopardy. See Cook v. State, 77 Ark.App. 20, 73 S.W.3d 1 (2002). In conducting our review, we examine all the evidence, including the evidence allegedly admitted erroneously, and review the evidence in the light most favorable to the State. Willingham v. State, 60 Ark.App. 132, 959 S.W.2d 74 (1998). We will affirm a conviction if there is substantial evidence to support the verdict. Cook v. State, supra.

Mr. Eastin has failed to preserve any of his challenges to the sufficiency of the evidence because his directed verdict motions were general in nature. After the State rested, appellant argued "the State had not made a prima facie case," and at the close of the evidence he argued for a directed verdict "based on lack of proof." Rule 33.1(a) and (c) of the Arkansas Rules of Criminal Procedure provide that a motion for directed verdict in a jury trial shall state the specific grounds therefor, and a defendant's failure to do so constitutes a waiver of any question pertaining to the sufficiency of the evidence. See Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). Because Mr. Eastin made no specific motion, all of his sufficiency arguments are waived.

Furthermore, even if appellant's sufficiency challenges had been preserved, none would have merit. Mr. Eastin argues that his convictions were not supported by substantial evidence because there was no evidence that the drugs or paraphernalia in the boat belonged to him, and because the evidence showed that it was someone else doing the manufacturing. He also contends that there was insufficient evidence to corroborate the incriminating testimony of his accomplice, Ms. Holder, as required by Ark.Code Ann. § 16-89-111(e)(1)(A) (Repl.2005). Mr. Eastin further challenges the simultaneous possession of drugs and firearms conviction on the grounds that there was no evidence of any connection between the handgun and controlled substances.

An accomplice's testimony is sufficiently corroborated if the remaining evidence independently established the crimes and tended to connect the accused with their commission. Tate v. State, 357 Ark. 369, 167 S.W.3d 655 (2004). In this case, Ms. Holder indicated that appellant was an accomplice in the manufacturing process by providing matches and pills, and by getting things for Holly during the cook. Other independent evidence clearly showed the crimes were committed given that the search uncovered a methamphetamine lab. And Mr. Eastin was connected to the crimes given that he lived there, admitted to the police that he smoked methamphetamine, and told...