Gass v. State, CACR
| Decision Date | 26 March 1986 |
| Docket Number | No. CACR,CACR |
| Citation | 17 Ark.App. 176,706 S.W.2d 397 |
| Parties | Gerland Lee GASS, A/K/A Gerl Gass, Appellant, v. STATE of Arkansas, Appellee. 85-95. |
| Court | Arkansas Court of Appeals |
Henry & Mooney by John R. Henry, Harrisburg, Crawford, Hays & Crawford by Robert H. Crawford, Chattanooga, Tenn., for appellant.
Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., for appellee.
Gerland Lee Gass appeals from his conviction of the crime of conspiracy to deliver a controlled substance for which he was sentenced to a term of thirty years in the Department of Correction and a fine of $15,000. We find no error and affirm the conviction.
At approximately 9:15 p.m. on August 2, 1984, L.C. Sandefer was travelling from Batesville to the Sulphur Rock community when he encountered a Lincoln Continental occupied by two men and being driven in an erratic manner. The Lincoln was being driven very slowly and crossed over the yellow line several times. He observed that the brake lights on the Lincoln came on several times for no apparent reason. By driving his truck very close to the rear bumper of the Lincoln he was able to ascertain that the car was licensed in Georgia and bore the license plate number GLK-310. Because of the behavior of the driver, Sandefer reported to the sheriff's office that the driver was probably intoxicated and ought to be checked out.
The next morning, David Aldridge, a deputy sheriff received a telephone call from an individual who stated that he and a companion, while driving along the highway, had seen a bank bag lying in a ditch by the side of the road. The officer went to the scene and obtained the bank bag. He described it as a zipper-type bag with a lock on the end of it and bearing the notation of "Hamilton County" and the name of a bank. The officer stated that he had no idea where Hamilton County was at that time, took the bag to the sheriff's office, and cut it open to determine what it contained. Inside he found a freezer bag containing a white powdery substance which was field tested and found to be cocaine. The persons finding the bag stated that they had found it at approximately 7:00 a.m. and delivered it to Officer Aldridge within an hour.
Charles Rutledge, an officer of the sheriff's department, stated that after learning the bag contained cocaine, he had the persons who found it take him to the location at which it was found. The bag was found in the area in which Sandefer had reported seeing the Lincoln the night before. Bryan Everett reported to the sheriff's office that on the morning of August 5, 1984, he and Sandefer observed the same Lincoln Continental on three occasions in the area where the bag had been found. He further reported that he again saw the same vehicle that afternoon parked on the side of the road and observed two people in the ditch who acted as if they "were looking for something." The sheriff's office then directed all of its officers to locate the Lincoln bearing the Georgia license number and apprehend its occupants. Later that afternoon the officers located the car, stopped it, and took its occupants into custody. An individual named Wofford was driving and the appellant was the only passenger. At the time of the stop the officers noticed mud on the trousers and shoes of both of the occupants and a "white powdery" substance on the appellant's shirt. No warrant had been issued for the arrest.
At the jail, the parties were required to disrobe and change into prison uniforms. Wofford emptied his pockets and the content disclosed two keys to Room 405 of the Powell Motel and a large sum of cash. A third key, bearing the inscription "No. ARCO7," was also discovered at that time. Wofford stated that the key was to a motel room in Mississippi where he had spent the night and had forgotten to return the key. It was later determined that this key fit the bag containing the cocaine. The powdery substance on appellant's shirt was determined to be cocaine. In the pocket of appellant's shirt was found a piece of paper bearing the name of Joseph McKinney and a Mountain View, Arkansas, telephone number.
Acting on what they then knew, the officers sought and obtained a warrant authorizing the search of the motel room and the Lincoln for controlled substances, weapons, and drug paraphernalia. Pursuant to the warrant the vehicle was searched and nothing was discovered. The officers found a number of weapons and other items in the motel room, but no cocaine or anything else linking the appellant to the conspiracy. None of the items seized in the motel room were introduced at the trial. The officers remained in the motel room for a period of time during which several incoming telephone calls for the appellant and Wofford were received and electronically recorded. These recordings were not used in the trial and did not lead to any other evidence of the appellant's guilt.
While in the motel room, one of the officers called Joseph McKinney at the telephone number found in appellant's shirt pocket, located his whereabouts, and subsequently took him into custody. McKinney testified with immunity at the trial as to his involvement with the appellant, Wofford, and others in a conspiracy to sell the 2.2 pounds of cocaine found in the money bag. McKinney also testified that he had received a telephone call from the appellant informing him that one of the co-conspirators had thrown the "stuff" out of the window while their vehicle was being chased by the police and the appellant asked him to go with them to Batesville to recover it.
On appeal the appellant does not contend that the evidence was insufficient to establish the conspiracy charge, but only that the evidence established that he had withdrawn from the conspiracy before the arrest and that the trial court erred in not suppressing much of the State's evidence which established the existence of the conspiracy.
The appellant asserts that the bank bag found in the ditch was either abandoned property or found property. He contends that if it be considered abandoned property he could not be convicted of conspiracy because, by throwing away the object of the conspiracy, he had renounced the criminal purpose. In the alternative, he contends that if it be considered found property, the opening of the locked container constituted an illegal search and seizure and that all evidence of it or flowing from it should have been suppressed as "fruits of the poisonous tree." We do not agree.
Ark.Stat.Ann. § 41-710 (Repl.1977) provides that renunciation of the criminal purpose is an affirmative defense to a prosecution for criminal conspiracy if a conspirator (1) thwarts the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, or (2) terminates his participation in it and gives timely warning to the police or makes a substantial effort to prevent the commission of the offense under circumstances manifesting a complete renunciation of the conspiracy. The appellant's argument presupposes that he was the person that discarded the bag and that he did so in an effort to thwart the conspiracy or terminate his participation in it. There is not a scintilla of evidence on which a finding that any of these requirements had been met could be based. Joseph McKinney, one of the co-conspirators, testified that the appellant was not the one who discarded the bag. He stated that the appellant told him that he had "sent a guy up here with the stuff and on getting to Batesville the guy had been chased or followed out of town and thrown the stuff out of the car." He further testified that on the date of the arrest the appellant and a companion came to his house and asked him to go to Batesville with them to look for the Unless a conspirator produces affirmative evidence of withdrawal, his participation in the conspiracy is presumed to continue until the last overt act by any of the conspirators. United States v. Panebianco, 543 F.2d 447 (2d Cir.1976). Our review of the record discloses no affirmative evidence of appellant's withdrawal. To the contrary, the evidence shows that until shortly before his arrest he and at least one other co-conspirator were seeking to regain possession of the cocaine in order to continue their criminal purpose.
Appellant next contends that the trial court erred in not suppressing evidence of the cocaine found in the locked container. He argues that the evidence was obtained as a result of an illegal warrantless search and seizure. We find no merit in this contention. Appellant's pretrial motion to suppress evidence made no mention of the content of the container or request that evidence of it be suppressed. That motion...
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