Honea v. State, CA

• Decision Date: 11 September 1985
• Docket Number: No. CA,CA
• Citation: 15 Ark.App. 382,695 S.W.2d 391
• Parties: David M. HONEA, Appellant, v. STATE of Arkansas, Appellee. CR 85-57.
• Court: Arkansas Court of Appeals

Page 391

695 S.W.2d 391

15 Ark.App. 382

David M. HONEA, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 85-57.

Court of Appeals of Arkansas Division II.

Sept. 11, 1985.

Clark and Crabtree by Terry L. Crabtree, Bentonville, for appellant.

Steve Clark, Atty. Gen. by Joel O. Huggins, Assist. Atty. Gen., Little Rock, for appellee.

CLONINGER, Judge.

In this appeal of his criminal conviction, appellant raises two points for reversal. We are of the opinion that the trial court committed no reversible error, and we therefore affirm its judgment.

Testimony at trial revealed that on August 9, 1983, Officer Pete Adams of the Green Forest Police Department heard on a citizen's band radio appellant's voice asking whether any listener had some "smoking dope" they wished to trade for some "road dope." No one responded; Officer Adams answered the second call, indicating that he would prefer to buy some "good pills." Appellant replied that he had about thirty to forty "good pills" to sell or, preferably, trade. The two men arranged to meet at the Tyson plant where appellant was employed as a truck driver. Appellant identified his truck by its tractor number, H85, and said he would be sitting in the parking lot by scales facing a road. He then asked Officer Adams if he were a police officer. Adams evaded the question by asking whether the pills for sale were "good pills." Appellant said that he had "good pills" to sell if Adams was not a police officer and told him he would be waiting at the Tyson plant. Once again he identified his tractor number as H85.

When Officer Adams arrived at the rendezvous, he parked his patrol car and approached appellant's truck on foot. Appellant got out of the vehicle and produced, upon request, his driver's license, saying, "I thought you said you weren't a police officer." After searching, handcuffing, and placing appellant in the patrol car, Officer Adams read him his Miranda rights. Appellant then said, "I guess when you find the dope in the truck I'll be going back to the cotton patch." Officer Adams asked him for what he had been imprisoned, and appellant responded that he had been involved in "some activities" in Fort Smith. Adams radioed a request for information on appellant's criminal record.

As the truck was the property of Tyson Foods, Officer Adams sought permission from the assistant manager at the plant, Bill Webb, to search the vehicle. Upon obtaining consent, Adams went into the truck and found in the cab "a black plastic briefcase that was unlocked, not closed totally, and in that briefcase I found a white, small plastic bottle that contained some pills." Appellant was subsequently charged with possession of a counterfeit substance which purported to be amphetamines with intent to deliver and with being an habitual criminal. A jury found him guilty on both charges and he was sentenced to fifteen years imprisonment with five years suspended. From that conviction, this appeal arises.

In his first point for reversal, appellant contends that the trial court commented on a matter of fact in violation of Article 7, § 23 of the Arkansas Constitution. After the jury had begun its deliberations, the members returned to the courtroom seeking, on behalf of one of their number, clarification of the term "counterfeit substance." The judge offered the following explanation:

[T]his law makes it a violation of the law, makes it a crime to sell what is not a controlled substance and to sell it under circumstances where you allege or you represent that it is a controlled substance, and so that's what this man is charged with, selling a substance that's not amphetamine and representing it to the people he is selling it to, that it was amphetamine. The Legislature has made that against the law, and that's the reason why that this charge was brought and is being tried, is to determine whether he is guilty or not guilty of exactly that. Now, that's what it is about. Another way of putting it in terms of what the trial was about here is whether this, whether the Defendant represented what he sold to the officer as road dope and whether it was not, and if he did represent it and it was not, then the next question is whether he had it in order, for the purpose of selling it or delivering it and if he did then those are the elements that have to be proven.

Appellant argues that the judge commented on the evidence by equating "road dope," the meaning of which was at issue during the trial, with "amphetamine," a controlled substance. Moreover, appellant urges, the judge assumed the jury's fact-finding function by determining the question of intent to deliver through his incorrect statement that appellant had "sold" a substance to Officer Adams.

We have quoted the judge's remarks at length because it is our opinion that, when viewed in the broader context, the challenged language amounts merely to harmless error. See Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980).

Appellant did not object to the court's remarks at the time they were made. We believe that if an objection had been made, an explanation and admonition to the jury would have removed any possible misconception. In Bradley v. State, 8 Ark.App. 300, 651 S.W.2d 113 (1983), we held that the failure of the appellant to object to the judge's comment on the evidence precluded our consideration of the matter as a basis for reversal on appeal. We now reaffirm that ruling.

Appellant's second point is that the trial court erred in overruling his ...