Smithey v. State, CR80-51

• Decision Date: 07 July 1980
• Docket Number: No. CR80-51,CR80-51
• Citation: 602 S.W.2d 676,269 Ark. 538
• Parties: J. B. SMITHEY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 676

602 S.W.2d 676

269 Ark. 538

J. B. SMITHEY, Appellant, v. STATE of Arkansas, Appellee.

No. CR80-51.

Supreme Court of Arkansas.

July 7, 1980.

Rehearing Denied Aug. 25, 1980.

Vincent E. Skillman, Jr., of Skillman & Durrett, West Memphis, for appellant.

Steve Clark, Atty. Gen., by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

ALLEN W. BIRD, II, Special Chief Justice.

J. B. Smithey was convicted in Mississippi County Circuit Court of public servant bribery in violation of Section 41-2703 (Ark.Stat.Ann., 1977 Repl.). He was sentenced to serve five years in the state penitentiary. His appeal raises three issues. First, he argues that the trial court should not have allowed the State to introduce tape recordings of conversations between himself and H. P. Cash or himself and John Cash. Second, he argues that the information filed against him in using the word "conspire" allowed the State to use evidence against him which otherwise would have been inadmissible. Third, Smithey argues that the testimony of a police officer who overheard statements made by him with the use of radio transmission should not have been admitted at the trial.

The testimony introduced at the trial tended to show that in August, 1978, H. P. Cash was charged with two felonies in Mississippi County. After his arrest, H. P. Cash went to see a deputy prosecutor and agreed to cooperate for a lenient sentence. He was told to keep in touch with the local authorities and help whenever he could. Sometime later, H. P. Cash was told by Smithey that what Cash needed was a "fixer". Smithey explained that Cash needed to go see "the man" and Smithey could arrange it. Smithey explained to H. P. Cash that "the man" was Henry Swift, who at that time was deputy prosecuting attorney for the Osceola District of Mississippi County, Arkansas. Several days after the meeting with Smithey, H. P. Cash returned to the grocery store and was told that "the man" wanted $25,000 to go along with the arrangement that H. P. Cash had already made with the deputy prosecutor in another county.

Later after entering a plea of not guilty, Cash was advised by Swift to go see Smithey who would tell him what to do. Subsequently, H. P. Cash went to see the deputy prosecutor for Crittenden County and told him of the conversations with Smithey and Swift. The deputy prosecutor called in police officers who made arrangements to place a microphone on Cash and in his truck. Following other conversations between Cash and Smithey, it was agreed that $10,000 would be paid in November, 1978, and $15,000 in January, 1979.

Subsequently, H. P. Cash changed his plea to guilty, was sentenced and placed in jail. John Cash went to see Henry Swift and asked why H. P. Cash was placed in jail. Swift told John Cash not to worry that he, Swift, would have him out the next day. A microphone was placed on John Cash's body by the state police and he went to the defendant's store. The defendant told John Cash that he, Smithey, would speak to Henry Swift to find out what was going on. John Cash offered $5,000 then and the defendant replied that would help. This conversation was recorded and the tape admitted into evidence at the trial.

Several days later there was another meeting at the defendant's store. John Cash had a microphone placed on his body again and the conversation between him and the defendant was recorded. During this conversation, the defendant told John Cash to bring $5,000 in a sack to the store. Before going to the store, John Cash called Henry Swift on a phone that was tapped. He asked Swift if dealing with the defendant was alright. Swift assured him it was, and said to go ahead and arrange for the $5,000. He said he would go easy on the rest until he could get H. P. Cash paroled into John Cash's custody. John Cash, with a microphone on his body, went to the store and handed the defendant the sack which the defendant put on a counter behind him. Moments later the state police came into the grocery store, arrested the defendant and picked up the cash.

The defendant claims that the tape recordings of conversations between himself and John and H. P. Cash should be suppressed as having been obtained in violation of his right against unreasonable search and seizure as guaranteed in the Fourth and Fourteenth Amendments to the United States Constitution and in support of this claim, he relies on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz the FBI had attached an electronic listening and recording device to the outside of a public telephone booth from which Katz made telephone calls. The government claimed that since there was no physical penetration of the booth the defendant had no constitutional protection. The Supreme Court said that the Constitution protects people, not places, and the fact that there was no physical penetration was no longer relevant. The Court held that wherever a man may be, he will remain free from unreasonable search and seizure and that the attaching of the microphone to the phone booth violated his constitutional expectation.

The question of electronic eavesdropping was again presented in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). In that case, the trial court admitted the testimony of agents who conducted electronic surveillance. The testimony was of conversations overheard by warrantless electronic eavesdropping by government agents by means of a transmitter which an informer consented to wear during his meetings with the defendant. The Court of Appeals had reversed the lower court in holding that the testimony was not admissible relying on Katz. The Supreme Court disagreed saying that it could see no constitutional difference between a government informant writing down his conversations with a defendant for official use in testifying concerning them as had been approved in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and transcribing his conversations with the defendant by either simultaneously recording them on his body or transmitting them to a recording device or other agent. The Court said:

One contemplating illegal activities must realize (the) risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on one hand and probable informers with transmitters on the other (p. 752, 91 S.Ct. p. 1126).

We believe that White states the rule to be followed and that the testimony of H. P. Cash, John Cash and the police officers concerning tape recorded conversations with the defendant and the recordings and transcripts were properly admitted by the trial court. When Smithey chose to have conversations with H. P. and John Cash, he had no constitutional right to protection of these conversations under the circumstances. Our state Constitution requires no different result. See Kerr and Pinnell v. State, 256 Ark. 738, 512 S.W.2d 13 (1974).

The defendant further claims that there was not a proper foundation laid by the testimony of the police officer who heard conversations between the defendant, H. P. Cash or John Cash as well as conversations between Henry Swift and H. P. Cash or John Cash to introduce the recordings and transcripts. The defendant urges that since this evidence is not admissible, then there is not sufficient further evidence to sustain a verdict in the case. The testimony of the police officer in each case where a tape recording of conversations was admitted into evidence shows that he was physically presented and observed the informant who had the microphone on his body in the presence of the one whose testimony was recorded and admitted into evidence. He also testified that a video tape recorder was used to visually record the movements of the speakers whose conversation was recorded. He testified that in each case he overheard the conversation transmitted electronically and simultaneously observed the action of the speakers, and that upon his review of the audio tapes found that they were the same as what he...