Teas v. State

• Decision Date: 01 October 1979
• Docket Number: No. CR79-29,CR79-29
• Citation: 587 S.W.2d 28,266 Ark. 572
• Parties: Edward Leon TEAS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 28

587 S.W.2d 28

266 Ark. 572

Edward Leon TEAS, Appellant, v. STATE of Arkansas, Appellee.

No. CR79-29.

Supreme Court of Arkansas, In Banc.

Oct. 1, 1979.

A. Wayne Davis, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Catherine Anderson, Asst. Atty. Gen., Little Rock, for appellee.

BYRD, Justice.

Appellant Edward Leon Teas was charged by two felony informations filed on February 16, 1978, with the sale of two pills of morphine on December 14, 1977, and the sale of marijuana for $20 on December 5, 1977. Over objections of appellant the trial court joined the two informations for trial. The jury assessed the maximum sentence and fine on both charges and the trial court ordered the sentences run consecutively. For reversal appellant raises the issues hereinafter discussed.

POINT I. With respect to severance of offenses, Criminal Procedure Rule 22.2 provides

"(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses."

The proof on the part of the State shows only that sometime in 1973, Steve Hicks had sold drugs for appellant. After Hicks was arrested in November 1977, on a drug charge, he became a confidential informer for the State. In that capacity he went to the home of appellant on December 5, 1977 and asked for heroin. Appellant had no heroin but offered to sell Hicks some marijuana which Hicks bought. In connection with Hick's capacity as a confidential informer he tried five or six times to again contact appellant but was unable to do so. On December 14, Hicks went by appellant's home and upon being informed that appellant was visiting one Steve Hall, Hicks went to Hall's residence where he again asked to purchase some heroin. Appellant stated that he did not have any heroin but had some morphine. He sold Hicks the two morphine pills for $60.00.

The only connection we can find between the two sales is the fact that both were made to Steve Hicks. This showing alone is insufficient to connect the two sales by a single scheme or plan within the meaning of Criminal Rule 22.2 Supra. It follows that the trial court erred in joining the two offenses for purpose of trial.

POINT II. Over objections of appellant the trial court permitted the State to put in proof of previous sales by appellant. To sustain the action of the trial court the State suggests that the evidence was admissible to show a single scheme or plan and that appellant by cross-examining the witness with reference to the other alleged sales is estopped to allege error. We find no merit to either contention. See Moser v. State, 266 Ark. ---, 583 S.W.2d 15 (1979).

POINT III. The trial court after listening to the testimony of Billy L. Satterfield, Ollie Wilborg, Edward Teas, Jerry Roberts and Harold Helton overruled appellant's motion to suppress the confessions. After a review of the record we find that the trial court's finding of voluntariness is contrary to a totality of the evidence.

Billy Satterfield was called about 11:00 p. m. the day appellant was arrested. He was advised by Jerry Roberts and Ollie Wilborg that appellant had not made any statements at that time. The next day Satterfield had a conversation with appellant in the presence of Officer Wilborg. He states that it was his understanding that appellant could be of value to the officers as an informer and that there was a mutual understanding reached that if appellant assisted the police, the police would in turn cooperate with appellant in the matter of reducing appellant's bond and making recommendations to the prosecutor and to the court for leniency and possibly even dismissal of the cases.

Officer Wilborg admits that appellant's helping the officers was discussed but that he told appellant and his lawyer, Billy Satterfield, that anything appellant did would be told to the prosecuting attorney. However, he says he did not make any promises to appellant. Wilborg also told appellant and Satterfield that the Judge sets the bond, but that he would talk to Jerry Roberts about appellant helping the officers.

Officer Helton also testified that before appellant made any statements he stated he wanted to talk to his lawyer before he answered any questions.

Appellant Teas denies that he made any statements until after the discussion with Wilborg when Satterfield told him to tell it like it was.

For a confession to be free and voluntary, it must be given without hope of reward or fear of punishment. Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). Here we cannot say that the confession was not obtained without hope of reward. It follows that the trial court erred in not suppressing the confession.

POINT IV. We find no merit to appellant's contention that the imposition of the maximum punishment and fine permitted by statute constitutes cruel and unusual punishment, Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976).

Reversed and remanded for proceedings not inconsistent herewith.

HARRIS, C. J., and FOGLEMAN and HICKMAN, JJ., concur in part and dissent in part.

GEORGE ROSE SMITH, Justice, concurring.

Criminal Procedure Rule 22.2 gives the defendant an absolute right to a severance when two or more offenses have been joined for trial solely on the ground that they are of similar character, but they are not part of a single scheme. Here the two offenses, sales of drugs, are unquestionably similar; so the controlling question is whether they were committed as part of "a single scheme or plan."

I think it plain that they were not so committed. The purpose of Rule 22.2 is to give effect to the principle that the State cannot bolster its case against the accused by proving that he has committed other similar offenses in the past. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). There are exceptions to that principle, however, as when two or more crimes are part of the same transaction, Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965), cert. denied 386 U.S. 964, 87 S.Ct. 1042, 1043, 18 L.Ed.2d 113, 114 (1967), or when two or more offenses have been planned in advance, as part of a single scheme. Ford v. State, 34 Ark. 649 (1879). The intent of Rule 22.2 must have been to carry into effect the spirit of those exceptions, by permitting the charges to be tried together when they are parts of a single scheme.

In drug cases the State cannot ordinarily prove that the accused sold drugs on one occasion by proving that he sold them on other occasions. Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Such proof of other sales, as we pointed out in Sweatt, would merely show that the accused had dealt in drugs before and hence was likely to do so again.

Here the two sales were nine days apart. There is no showing (as there was in Ford v. State, supra ) that Teas planned in advance to sell drugs to Hicks on December 5 and again on December 14. There simply was no such scheme. I strongly disagree with the dissenting view that a scheme can be shown by proof that the accused was engaged in the business of selling drugs. Such a holding would simply abolish the Alford principle in drug cases, because the prosecution could always join charges of two or more drug offenses and ask that they be tried together, as part of a single scheme or plan. No such intention can be read into Rule 22.2.

FOGLEMAN, Justice, concurring and dissenting in part.

I agree with the majority that testimony relating to other sales of controlled substances by appellant was not admissible on the question of guilt or innocence, even though it was on the question of severance; however, I respectfully dissent as to points I and III. I cannot agree that there is reversible error in the trial court's action in consolidating the separate charges for trial. The trial court obviously acted under Rule 23.1(a), Arkansas Rules of Criminal Procedure. Under that rule, the court may order consolidation of two or more charges for trial if the offenses could have been joined in a single indictment or information without prejudice to a defendant's right to move for severance under preceding sections. Charges may be joined in a single indictment or information when the offenses are of the same or similar character, even if they are not part of a single scheme or plan, or when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Rule 21.1, Arkansas Rules of Criminal Procedure. If they are joined solely on the ground that they are of the same or similar character but are not part of a single scheme or plan, the defendant has an absolute right to a severance. Rule 22.2(a), Arkansas Rules of Criminal Procedure.

The two offenses were of the same or similar character, i. e., sales of controlled substances. In my opinion, they were clearly a series of acts connected together or constituting parts of a single scheme or plan. The scheme or plan was to conduct a business of sale of controlled substances and to furnish them to Steve Hicks for a money consideration.

It was charged that the two sales were made within a period of nine days. Steve Hicks testified that he originally met Teas in 1973 on a night when he first purchased narcotics from Teas. Hicks said that Teas had supplied him with drugs off and on since that time and that he had purchased marijuana, morphine and heroin dulotta (a synthetic morphine) from Teas. On cross-examination, it was brought out that Hicks was guilty of four charges pertaining to drugs in 1974 and was sentenced to six months in jail and fined $500. Hicks said that Teas was then supplying him with drugs and that he made a living off drugs he sold for Teas, as far back as 1973 and 1974. Hicks testified about becoming a confidential informant...