Head v. State, CACR 02-999.

• Court: Arkansas Court of Appeals
• Writing for the Court: John F. Stroud
• Decision Date: 27 August 2003
• Docket Number: CACR 02-999.
• Citation: Head v. State (Ark. App. 2003)
• Parties: TERRY DALE HEAD APPELLANT v. STATE OF ARKANSAS APPELLEE.

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TERRY DALE HEAD APPELLANT v. STATE OF ARKANSAS APPELLEE.

CACR 02-999.

Court of Appeals of Arkansas, Division III.

August 27, 2003.

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [CR01-2654], HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE.

AFFIRMED.

Chief Judge JOHN F. STROUD, Jr.

Appellant, Terry Head, was tried by a jury and found guilty of the offenses of manufacturing methamphetamine, possessing methamphetamine, possessing drug paraphernalia with intent to manufacture methamphetamine, possessing drug paraphernalia, and maintaining a drug premises. He was sentenced as a habitual offender to ten years' imprisonment in the Arkansas Department of Correction.

Appellant raises four points of appeal: (1) "request to rule that manufacture does not occur until usable product is obtained"; (2) the evidence is insufficient to support the verdicts; (3) the trial court erred in refusing to give the jury instructions on the lesser-included offenses of attempt to manufacture methamphetamine and possession of an instrument of a crime; (4) the trial court erred in refusing to suppress the evidence. We find no error and affirm.

Officer Greg Siegler, a meth-certified detective for the narcotics division of the Little Rock Police Department, testified that he and Detectives Flannery, Terry, Blankenship, and Pledger went to appellant's house on April 23, 2001. He said that he rode with Detective Flannery; that they pulled up into the driveway and to the back of the house by the garage; that he saw appellant and Mr. David Womack in the garage; and that he identified himself and began to talk to appellant. Siegler said that he read the consent-to-search form to appellant verbatim, that appellant said he understood it, and that appellant signed it. He denied threatening appellant in any way. He testified that Detective Terry was standing there at the time appellant signed the consent, and that Detective Flannery was talking to Mr. Womack while he, Siegler, was getting appellant's consent to search. He said that Detectives Blankenship and Pledger were at the front of the house talking to appellant's mother. He stated that he assisted in conducting a search of the garage.

Siegler explained the different steps involved in manufacturing methamphetamine. He then identified photographs of several of the items that were recovered from the scene and explained how those items could be used in the manufacturing process. Among the items were: a one-gallon can of paint thinner, numerous pieces of rubber tubing, zip-loc baggies, latex gloves, funnels, a pair of forceps, a glass jar containing a red powder residue, an aspirin bottle with boiling beads in it, coffee filters, and a plate containing a red powder residue. Also found were: two pie dishes with a metal jar lid containing a white powder, a metal ashtray with numerous coffee filters, and a piece of paper with white powder. He testified that he also found a "snorting tube" on the table in the garage, along with a piece of aluminum foil.

He stated that he could not smell any chemical odors outside the garage, but that he could inside the garage. He said he did not find a bed or cot or mattress or anything else to sleep on or any clothing in the garage.

Detective Michael Terry testified that he was present at the search; that Detective Siegler went over the consent form with appellant; and that during that time, they did not threaten, promise or coerce appellant. He stated that appellant and Womack were exiting the garage when he first saw them. He said that he helped in the search after the consent was obtained. He testified about other items that were found in the garage, including: two one-gallon cans of camp fuel, three bottles of hydrogen peroxide, two bottles of 7% iodine tincture, two cans of carburetor cleaner, a can of acetone, a can marked "No Sand," five gallons of muriatic acid, a container of salt, a container of HEET, an HCL generator, a jar of naval jelly, and matchbooks with the striker plates removed. He explained how these items are used in the manufacture of meth.

He said that he did not find a cot or folding beds, clothes, or "anything like that" in the garage. He said that there was not any type of cooking vessel in the garage, just chemicals and a generator. He said that they also found a book with photos, bills, and receipts in the garage. It contained bills and receipts for Womack's old residence, receipts made to Head Construction, deposit tickets for Terry Head, a credit-card payment with Head's signature, a receipt with the account name of Terry Head, and other similar items.

Detective Barry Flannery testified that he went to the scene with Detective Siegler; that appellant and Womack walked out as the officers walked up to the garage; that he talked with Womack; that Womack asked if he could leave and he told him that he could; that he asked Womack for consent to search his vehicle, which was granted; and that he found no contraband inside the vehicle. He said that he, Flannery, was the one who received information from the confidential informant that there was a meth lab located at the residence and that the person manufacturing meth was appellant. He said that the informant was not Womack.

Flannery testified about some of the photo exhibits, explaining what the items were, including acetone, mineral spirits, glass jars with residue, rubber gloves with reddish-brown stains, and coffee filters with reddish-brown stains. He explained how these items are used in manufacturing meth. He said that he did not find any evidence of anyone living in the shed, such as a cot, bed, or any food.

Detective Ken Blankenship testified that he was involved in the search. He, too, described several items that were recovered from the garage and explained how they were used in the manufacturing process. He explained that the vodka bottle containing a bi-layer solution "is used in a process after the cook when they start washing it. It separates into a bi-layer and the meth oil is on top." He said that he found the bottle hidden inside a wall, along with an alcohol bottle that had white sediment that he thought was for separating out the ephedrine from its binders. He stated that you could smell a chemical odor in the shop area. He said that he was not looking for clothing, bedding, and such, but that he did not see any either.

Detective Steve Pledger testified that he was part of the team that went to appellant's house. He said that upon arrival, he and Detective Blankenship approached the front of the residence and that Blankenship knocked on the door, waited a few minutes, and a lady came to the door. He said that she identified herself as appellant's mother; that they told her they had received information of a possible meth lab on the premises; and that she said there better not be a meth lab there and gave her verbal consent to search the area. He described the items that he found in the search of the garage and how they related to the manufacturing process. He said that he did not see any beds, clothing, blankets, or anything, but that he was not particularly looking for those type items, and that there was a strong chemical odor in the garage.

Chris Harrison, a forensic chemist, testified that he is certified to dismantle clandestine meth labs. He said that he was involved in the scene at appellant's house, and that he took representative samples. He described the vodka bottle with the bi-layer solution; said that the top layer was meth oil; that "this is now in the extraction phase"; that "the conversion takes place during cooking when you mix the phosphorus, iodine, and pseudo-ephedrine and the extraction takes place after the meth has been made"; and "[a]t that point, the manufacturing had occurred." Harrison said that the white powder found on the piece of paper, shown with the metal ashtray, weighed 0.575 grams, and that it was meth. He said that the snorting tube and aluminum foil contained meth residue. He said that in his opinion, on April 23, 2001, meth manufacturing was occurring at that residence, and that it was a working lab. He said that based upon his experience, a cook had taken place; that he could not find a reaction vessel, but that the process was not yet finished; and that they found evidence of a cooking lab and the extraction process. He said that the fact there was not a cooking pot did not make any difference in the manufacturing process because "the manufacturing process is conversion and extraction, not preparation or compounding." The State rested at this point, and appellant made his first motion for directed verdict, which was denied.

As part of appellant's case, David Womack testified that he planned to assert his rights under the Fifth Amendment if asked certain questions. The trial court determined that Womack's assertion of those rights made him unavailable as a witness and that therefore his testimony from the suppression hearing could be read into the record of the trial.

Womack testified at the suppression hearing that appellant had lived two houses down from him for over forty years; that he was present at appellant's shop on April 23 when the detectives arrived; that he and appellant were walking out of the garage with some parts to work on a water faucet when the detectives came; that he saw them talking to appellant; that they said they had information there was a meth lab on the premises; that they wanted to search the area; that appellant asked them if they had a warrant; that they said if he did not comply, they would confiscate everything on the premises; and that the officers told him, Womack, to leave. He said that he had been staying in the shed because he had been arrested at his house on the same charges and did not want to move back home because he knew the police would be there every night; that he did not tell anyone that he was living in the shed; that he had been staying in the...