Parks v. State, CA

• Decision Date: 23 May 1984
• Docket Number: No. CA,CA
• Citation: 11 Ark.App. 238,669 S.W.2d 496
• Parties: Jackie PARKS, Appellant, v. STATE of Arkansas, Appellee. CR 83-188.
• Court: Arkansas Court of Appeals

Page 496

669 S.W.2d 496

11 Ark.App. 238

Jackie PARKS, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 83-188.

Court of Appeals of Arkansas Division II.

May 23, 1984.

John A. Buckley, Jr., Texarkana, for appellant.

Steve Clark, Atty. Gen. by Alice Ann Burns, Deputy Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

Jackie Parks was found guilty of two counts of violation of the Controlled Substances Act. He was sentenced to a term of six years in the Department of Correction on one count and was fined $1000 on the second one. He appeals only from the first conviction.

The appellant first contends that the trial court erred in denying his motion to sever the offenses and subjecting him to one trial on both counts. We do not agree.

Appellant was charged in separate informations with having violated the Controlled Substances Act by selling marijuana on October 20, 1982 and on October 29, 1982. The record does not contain the Information or any earlier pleadings concerning the charge growing out of the October 20th transaction which might have been filed prior to the date of arraignment on April 15, 1983. Although the record does contain the order of consolidation of the two cases it is clear that at least by the date of arraignment the cases had been consolidated and set for trial on May 9, 1983.

On the morning of trial, after the jury had been qualified and sworn, the appellant orally moved to sever the offenses. The court ruled that in its discretion it had consolidated the cases for trial and denied the motion to sever as untimely made. The appellant contends that this was error because there was no evidence that the two offenses were part of a single scheme and that they had been joined for trial solely on the ground that they were of the same or similar character. This argument was not made to the trial court, where no basis for the severance was asserted.

A.R.Cr.P. Rule 22.1(a) requires such a motion to be made before trial, or at the close of all the evidence if based upon a ground not previously known, and further provides that severance is waived if the motion is not made at the appropriate time. The record reflects that the fact that these two cases had been consolidated for trial was known to the appellant at least thirty-four days before the date of trial. He had full access to the prosecuting attorney's files on both counts. No pretrial motion for severance was made. Appellant did not make his motion until the morning of the trial and after the jury had been qualified and sworn. It is well settled that the trial court's action with regard to matters of severance lies within the sound discretion of the trial judge and will not be reversed absent a showing of abuse. Brown v. State, 5 Ark.App. 181, 636 S.W.2d 286 (1982); Hallman & Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

Furthermore, A.R.Cr.P. Rule 22.1(b) provides that if a pretrial motion for severance is overruled the appellant may renew the motion on the same grounds before or at the close of all of the evidence and the argument is waived by failure to renew the motion. At the time the oral motion was made there had been nothing presented to the court on which a determination of whether the two offenses were or were not part of a single plan or scheme could have been made. After evidence was presented on which the court might have made the finding there was no renewal of the motion. We find no error or abuse of the trial court's discretion.

On April 15th the cases had been set for trial on Monday, May 9, 1983. On Friday, May 5 the appellant filed a motion to have the State disclose the identity of the confidential informant who had been working with the police officers in several transactions including those with the appellant. No action was taken on that motion until after the jury had been qualified and sworn. At that time the appellant presented his motion contending that the State should be required to disclose the identity of the confidential informant. The court noted that such matters should be taken up long before the day of trial and empanelling of the jury and denied the motion as untimely. Appellant did not move for a continuance on this basis.

The question of whether and under what circumstances disclosure of the identity of a confidential informant is required has been before the courts on many occasions. State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977); Hooper & Westlin v. State, 257 Ark. 103, 514 S.W.2d 394 (1974); West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Often this determination is based on whether the informant was present or participated in the illegal act or merely furnished information of criminal activity to law enforcement officers. The testimony of an informant who has been a witness or participant in the illegal activity may in most cases be the only means by which the accused can amplify, modify or contradict the testimony of a prosecuting witness and therefore may be essential to the preparation of a defense. Where the informant merely furnished information to the officers and has no knowledge of the facts and circumstances surrounding the arrest or illegal activity, his testimony in most cases may be neither relevant nor helpful to the defense.

The cases make it clear that there is no fixed or inflexible rule for determining whether disclosure should be required. That determination requires a balancing of the public interest in continued communication respecting illegal activities by preserving anonymity, against the rights of the accused to prepare an adequate defense. It must depend on the particular circumstances of each case and generally disclosure is required when those circumstances reveal that the informant's testimony may be relevant and helpful to the defense.

In the particular circumstances of this case we would find no error in the court's determination that this informant possessed no knowledge which was vital to the appellant's defense and that he was not a participant in or witness to the illegal activity. The record reflects that the police officer who testified was engaged in an undercover narcotics operation in the Texarkana area utilizing information from a confidential informant paid by the Miller County Sheriff's Office. He made contact with persons suspected of engaging in illegal activities through Johnny Sams who did not know that the other two were involved in law enforcement.

On October 29, 1982 Sams "set up a buy" for the officer from the appellant which was to take place in appellant's apartment. The confidential informant was not present when Sams made these arrangements with the appellant but was informed of them by Sams. The informant then relayed this information to the officer by telephone. The officer and Sams went to appellant's apartment and negotiated the purchase of a quarter pound of marijuana for $140. Appellant then made a telephone call and informed the officer that the marijuana would be delivered to his apartment "right away." Sams and the officer waited for the delivery and when it did not arrive within a reasonable time they left and returned to the confidential informant's apartment to wait for a call from the appellant. After waiting there for a period of time the officer and informant left the apartment and drove downtown for purposes which were not shown to have been connected with the appellant. While en route they passed a vehicle occupied by three persons, one of whom was the appellant, who signaled to the officer to stop in a parking lot. On the parking lot the informant walked over to the other vehicle and engaged the two occupants in conversation. The appellant walked over to the officer's car, got in the back seat with the officer and delivered the marijuana in exchange for the agreed price.

The confidential informant was not present in appellant's apartment when the sale was negotiated. He neither witnessed nor participated in those discussions in that part of the transaction but merely furnished information about it to the officer by telephone. At the time the transaction was consummated the informant was not present but was engaged in conversation elsewhere. There was no evidence that he witnessed the transaction or participated in it in any way. In the particular circumstances of the case we find no error in the court's ruling.

At the same time the motion to disclose was presented, appellant orally moved for a continuance on the ground of inability to communicate with the appellant for preparation for trial. The appellant contends that it was error for the court to overrule that motion. We do not agree. Counsel stated that he had attempted to contact the appellant several times but had only been able to contact him on one occasion. He stated that he believed the appellant was reluctant to contact him because his fees had not been paid and that the first opportunity he had to discuss the case with appellant was on the morning of trial.

Whether to grant a continuance is a matter lying within the sound discretion of the trial court and will not be overturned on appeal absent a showing of clear abuse of discretion. The burden lies with the appellant to demonstrate both the abuse and resulting prejudice. Walls v. State, 8 Ark.App. 315, 652 S.W.2d 37 (1983), aff'd. 280 Ark. 291, 658 S.W.2d 362 (1983); Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). It is noted here that the failure of communication was brought about by the appellant himself. Nor did the appellant support his request for a continuance with any information regarding additional witnesses or evidence which might have been developed with more time. It has also been held that the fact that the motion is not made until the day of trial is an important consideration. Tyler v. State, 265 Ark. 822, 581...