Houston v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBBINS
• Citation: Houston v. State, 848 S.W.2d 430, 41 Ark.App. 67 (Ark. App. 1993)
• Decision Date: 24 February 1993
• Docket Number: No. CA,CA
• Parties: Beatrice HOUSTON, Appellant, v. STATE of Arkansas, Appellee. CR 92-653.

Page 430

848 S.W.2d 430

41 Ark.App. 67

Beatrice HOUSTON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 92-653.

Court of Appeals of Arkansas Division I.

Feb. 24, 1993.

James H. Phillips, Craig Lambert, John Wesley Hall, Jr., Little Rock, for appellant.

Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.

ROBBINS, Judge.

Appellant Beatrice Houston was convicted of delivery of a controlled substance. She was sentenced to fifteen years in the Arkansas Department of Correction, fined $5,000, and recommended for drug rehabilitation while incarcerated. Appellant contends on appeal that the trial court erred in denying her motion to suppress evidence from the nighttime search, in denying her motion for mistrial due to an ex parte communication, and in permitting a State's witness to testify about prior criminal acts. We affirm.

Since sufficiency of the evidence is not argued, we will give only a summation of the facts. At 4:15 p.m. on March 5, 1991, Detective Lane of the Pulaski County Sheriff's Department fitted informant Pettit with a body microphone and provided her $60.00 to make a drug purchase from appellant. Informant was observed entering appellant's residence, where she gave appellant the $60.00 for one Dilaudid pill. Informant inquired about obtaining more Dilaudid, and appellant replied that she would have more later. The detective used this information to file his affidavit for a warrant along with the fact there was only one entrance to the apartment building; that appellant sells primarily in the late hours; that appellant was very secretive about where the drugs were kept; and that the informant had dealt with appellant on previous occasions. The affidavit stated that the request for a nighttime search was due to a need for safety, speedy access, and to prevent any objects from being removed before entry. The judicial officer issuing the warrant found there was probable cause to search appellant's home for the reasons set forth in the detective's affidavit. The search of appellant's home was executed at 10:45 p.m. on the same day as the informant's purchase, at which time the $60.00 from the earlier purchase was seized from appellant's purse.

Appellant first contends that it was error for the trial court to deny her motion to suppress the evidence obtained from her home. Specifically, appellant argues that it was unnecessary to execute the search at nighttime. Arkansas Rules of Criminal Procedure 13.2(c) provides that:

Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or

(ii) the objects to be seized are in danger of imminent removal; or

(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;

the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

In reviewing a trial court's decision to deny an appellant's motion to suppress evidence, the appellate court makes an independent determination based on the totality of the circumstances and reverses the decision only if it is clearly against the preponderance of the evidence. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). Even if the issuance of the search warrant was in violation of Ark.R.Crim.P. 13.2(c), a motion to suppress will not be granted unless the violation is substantial. Martinez, id. Our cases have consistently held that a factual basis must be stated in the affidavit before a nighttime search warrant may be validly issued. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992). The affidavit here clearly showed drugs had been purchased at appellant's residence that day; there was a danger and difficulty because of the one-door entrance; the drugs were in danger of removal or disposal due to the small size of the pills; and the appellant primarily sells late at night. The issuing judge stated in the search warrant that he was satisfied that, based on all the information in the affidavit, there was probable cause to issue a search warrant that could be executed at any time, day or night. We cannot say the trial judge erred in its denial of appellant's motion to suppress.

Appellant next contends the trial court erred in denying appellant's motion for a mistrial based on an ex parte communication between the trial judge and the jury that occurred during jury deliberations. Ark.Code Ann. § 16-89-125(e) (1987) provides:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

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