Watson v. State, CR

Decision Date23 March 1992
Docket NumberNo. CR,CR
Citation308 Ark. 643,826 S.W.2d 281
PartiesAlbert WATSON, Appellant, v. STATE of Arkansas, Appellee. 91-291.
CourtArkansas Supreme Court

Terri Harris, Hot Springs, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant Albert Watson urges this court to reverse his conviction for the rape of an eleven-year-old girl in November 1990. A Garland County jury convicted appellant, and sentenced him as an habitual offender to forty years imprisonment in the Arkansas Department of Correction. Appellant relies on four points for reversal, all of which are affirmable.

Appellant's first argument for reversal asserts that the trial court erred in denying appellant's motion to suppress a videotape and photographic stills filmed by police during a search of appellant's residence. The alleged rape occurred in November 1990, but a search warrant was not issued and executed until January 3, 1991. According to appellant, the lapse of time between the alleged rape and the search warrant proceedings either negated or diminished probable cause because appellant was not violating the law at the time the warrant was issued.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

In this case, the warrant to search appellant's residence was supported by the affidavit of Investigator Todd Sanders. Sanders averred that appellant's neighbor, Donald Lybarger, contacted him on December 21, 1990, after Lybarger discovered sexually explicit photographs on the ground near appellant's residence. The photographs depicted the act of sexual intercourse, between a young female and a male with only his genitalia exposed. On January 3, 1991, Sanders identified the female in the photographs, and conducted an interview with her in the Garland County Sheriff's office. During the interview, the victim identified appellant as the male in the photographs, and stated that appellant took the pictures in November 1990, at appellant's residence.

Sanders obtained and executed a search warrant on January 3, 1991, the same day that the victim first identified appellant as the man in the photographs. During the search, Sanders videotaped the interior of appellant's residence. The video depicted a sheet on appellant's bed which appeared identical to a sheet depicted in the photographs found by Lybarger. On January 6, 1991, appellant was arrested and charged with rape. At trial, the state admitted the photographs found by Lybarger and photographic stills from the videotape of the search of appellant's residence.

Appellant argues that probable cause did not exist because appellant was not violating the law at the time the warrant was issued. However, appellant's argument overemphasizes the significance of a time lapse in the context of determining a warrant's validity. While probable cause must exist at the time the warrant is issued, not at an earlier time, United States v. Stevens, 525 F.2d 33 (8th Cir.1975), a lapse of time is not necessarily the controlling consideration. United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986). Other factors include the nature of the criminal activity and the type of property sought, considered in the light of common sense. Id.

In this case, the items specified in the search warrant included cameras, telephones, and items of identification tending to identify the individual in control of the residence. Such items are not per se inculpatory. In the federal case United States v. Pelham, 749 F.Supp. 304 (D.D.C.1990), the district court noted that a delay is less significant when the search warrant lists items innocent on their face as opposed to per se inculpatory items that probably would remain in a suspect's residence for a short period of time.

In this case, the search warrant was obtained and executed the same day the police ascertained appellant's identity and within two months of the alleged rape. Based on the totality of the circumstances, considered...

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12 cases
  • Lard v. State
    • United States
    • Arkansas Supreme Court
    • February 13, 2014
    ...evidence is not inadmissible on grounds that it is cumulative or unnecessary due to admitted or proven facts. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). Equally as clear, the State is entitled to prove its case as conclusively......
  • Nooner v. State
    • United States
    • Arkansas Supreme Court
    • October 9, 1995
    ...by a witness from photographs, but neither court has resolved the precise issues raised by Nooner in this appeal. See Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1980) (bench trial); Washington v. State, 31 Ark.App. 62, 787 S.W.2d 254 ......
  • Nance v. State
    • United States
    • Arkansas Supreme Court
    • March 4, 1996
    ...the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992). It is not necessary that sufficient information for a conviction be available when the search warrant is obtained, onl......
  • McCulley v. State
    • United States
    • Arkansas Court of Appeals
    • May 17, 2017
    ...during McCulley's trial were relevant as having corroborated the testimony of both A.R. and Collette. See Watson v. State , 308 Ark. 643, 647, 826 S.W.2d 281, 284 (1992) (Evidence corroborating rape victim's testimony is relevant and admissible.). Again, the failure to make a meritless obje......
  • Request a trial to view additional results

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