King v. State, CR
| Decision Date | 20 September 1993 |
| Docket Number | No. CR,CR |
| Citation | 314 Ark. 205,862 S.W.2d 229 |
| Parties | Everett Lawrence KING, Appellant, v. STATE of Arkansas, Appellee. 93-266. |
| Court | Arkansas Supreme Court |
Joel O. Huggins, Asst. Atty. Gen., Little Rock, for appellant.
Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Everett King was found guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced to 36 years in the Department of Correction. He appeals his conviction on two grounds: (1) the trial court erred in refusing to grant a motion to suppress evidence seized following a search of his home; and (2) the trial court abused its discretion by failing to grant a motion for continuance of the trial. Neither point has merit, and we affirm the convictions and sentences.
The facts are these. In December 1991, Jeffery Kragel, who later became a confidential informant, was arrested by the Fayetteville police for delivery of marijuana. Following the arrest, he agreed to cooperate with the Fayetteville police in making a drug buy in order to minimize problems for himself and his wife. He called the home of Everett King, spoke to him, and arranged to purchase one-quarter pound of marijuana. After Kragel completed the arrangements, the police searched Kragel and his car. Kragel was then given $500 of photocopied Drug Task Force funds and outfitted with a body mike. Detective Allen McCarty of the Fayetteville Police Department testified that Kragel was then kept under surveillance as he drove to a brown and white trailer in Sonora outside of Springdale. McCarty observed Kragel pull into the driveway and exit his car.
Kragel was met on the porch by an unidentified person, and the two entered the house. Detective McCarty testified that he heard the conversation inside by way of the body mike but admitted that parts of the conversation were inaudible. He testified that he overheard what appeared to be a drug transaction. McCarty stated that he and a companion officer, Scott McElveen, drove by the King residence as Kragel got into his car. They then followed Kragel a short distance away to Spe-Dee Mart where he stopped and turned over a quarter pound of marijuana to the officers. The officers then followed Kragel back to the Fayetteville Police Department where the body mike was removed. The police searched Kragel and his car and found no drugs or money.
The transcript of the tape resulting from conversations overheard by means of the Kragel body mike indicates that Kragel stated that he saw no other drugs in the King trailer. However, Kragel and McCarty testified at the hearing before the circuit court that Kragel told the officers at Spe-Dee Mart that he saw about 60 small-growing marijuana plants at the trailer. He also testified at the hearing that a woman named Charlotte and another man were present at the house as well as King. King, he stated, actually sold him the marijuana.
Based on this information Officer McElveen prepared a search warrant and affidavit in support of the warrant. At midnight, McElveen presented both documents to Springdale Municipal Court Judge Stanley W. Ludwig. Judge Ludwig signed the warrant for a nighttime search of the King trailer. The police executed the search warrant and found approximately five to seven pounds of marijuana, approximately sixty marijuana plants, and numerous items described as drug paraphernalia. Police also recovered a loaded 30/30 caliber rifle. King was arrested and charged with possession of a controlled substance with intent to deliver; manufacturing marijuana; delivery of a controlled substance; and felon in possession of a firearm.
A motion to suppress the evidence obtained pursuant to the search warrant was filed, and at the hearing before the circuit court Kragel, the participating officers, Judge Ludwig, and King's wife testified. The circuit court denied the motion.
Following a jury trial, King was found guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He was acquitted of drug manufacturing and the firearm charge. He was sentenced to consecutive terms totalling thirty-six years.
For his first argument, King challenges the sufficiency of the affidavit underlying the search warrant. Our standard of review for a denial of a motion to suppress evidence is well established. We make an independent examination based on the totality of the circumstances and reverse the circuit court's decision only if it was clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). On appeal we view the facts most favorably to the State as appellee. Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986).
King's argument for suppression is premised on his assertion that there were several statements contained in the underlying affidavit that were false and misleading. The alleged misstatements are these:
STATEMENT 1
On December 18, 1991, Detective McCarty was contacted by a confidential informant, who advised him that the resident of the aforementioned house, Everett King, had a quantity of marijuana for sale. [King argues that Kragel was arrested on a drug charge and agreed to cooperate only because of that.]
At approximately 10:55 p.m., the confidential informant met with Detective McCarty and Detective McElveen at the Fayetteville Police Department. [King disputes the word "met" because King was an involuntary informant.]
Detectives McCarty and McElveen ... overheard the confidential informant purchase approximately one quarter pound of marijuana from Everett King. [King argues that a precise marijuana buy could not be overheard since no mention of marijuana was made.]
The confidential informant was then interviewed and indicated that he/she had observed approximately sixty seedling marijuana plants in the living room of King's trailer. [King points out that on the tape Kragel said, "I didn't see any other than what he gave me," and that the plants were not found in the living room.]
[The confidential informant] was kept under constant surveillance by Detectives Lovett and Owens.... [King says the surveillance was intermittent.]
King continues that under the Supreme Court decision of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a hearing is required to be held on allegations of intentionally false statements, or statements made in reckless disregard of the truth, in the warrant affidavit. If falsity is established, then those items must be carved out of the affidavit, and the remainder of the information must suffice to establish probable cause.
The State takes issue with the appellant's argument under Franks and vigorously contends that King did not follow the correct procedure under that decision. Specifically, the State argues that King never presented the circuit court with preliminary proof of material falsity, as was his burden, or requested the court to discard misstatements of fact and then determine whether probable cause to search remained. Because of these lapses by King, according to the State, a Franks argument is not preserved for appeal.
We do not agree with the State on this point. A hearing was held before the circuit court in which the informant, the municipal judge, and the police officers all testified. All were cross-examined by defense counsel on the accuracy of statements in the affidavit and search warrant. Certain errors were admitted. The circuit court concluded, however, after hearing the testimony that based on the four corners of the affidavit it would deny the suppression.
The circuit court was correct. Here, the transaction between the informant and King was a controlled buy, and the informant's person and car were searched before contact with King. The informant...
To continue reading
Request your trial
-
Greene v. State
...prejudice before this court will consider a trial court's denial of a continuance to be an abuse of discretion. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). Sanders v. State, 317 Ark. 328, 340, 878 S.W.2d 391, 398 Although we, and the Court of Appeals, have acknowledged that a last-m......
-
Bowen v. State
...of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 Mr. Bowen has fai......
-
Sanders v. State
...prejudice before this court will consider a trial court's denial of a continuance to be an abuse of discretion. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). Here, apart from an assertion in his brief of hardship imposed by the State having provided, seventeen days prior to trial, a w......
-
Goins v. State
...abuse of discretion. Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994). That burden entails a showing of prejudice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993). Goins's attorney stated that Billy Johnson, a prospective alibi witness, could place Goins "in Camden or near Fordyce and......