Watson v. State

• Decision Date: 02 March 1987
• Docket Number: No. CR,CR
• Citation: 291 Ark. 358,724 S.W.2d 478
• Parties: Raymond WATSON, Appellant, v. STATE of Arkansas, Appellee. 86-107.
• Court: Arkansas Supreme Court

Page 478

724 S.W.2d 478

291 Ark. 358

Raymond WATSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 86-107.

Supreme Court of Arkansas.

March 2, 1987.

L. Gray Dellinger, Melbourne, Larry Dean Kissee, Mammoth Springs, for appellant.

Steve Clark, Atty. Gen. by Robert A. Ginnaven, III, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Raymond Watson has appealed from a judgment entered on his conviction of three felony counts and one misdemeanor count of theft by receiving, and one count of possession of a controlled substance with intent to deliver. The convictions brought fines of $16,000 and sentences totaling nineteen years in the Department of Correction. Watson argues twenty points for reversal grouped in five categories: I) the trial court erred in refusing to suppress evidence obtained under a defective search warrant; II) the trial court erred in denying a motion for a mistrial for witness misconduct; III) the trial court erred in permitting the state to amend the information in that Watson was charged and convicted of multiple offenses out of a single, continuing course of conduct; IV) the trial court erred in permitting testimony of other acts of misconduct and prior convictions of the appellant; and V) the trial court erred in permitting the state to exercise a peremptory challenge against a juror who had already been accepted by the state and the defense. We find no merit in the arguments and therefore we affirm the judgment.

J.R. Robinson, Jr. testified for the state that around February 6, 1985 he went with Bobby Foster to a place near Mammoth Spring where they had hidden stolen property--including two three-wheelers and some welding equipment. Robinson helped Foster load the property and take it to appellant's farm in Fulton County where it was traded for marijuana. A week or so later Foster and Robinson agreed that in return for Robinson's silence, Robinson would receive a pound of marijuana which Foster expected to receive from appellant in exchange for stolen guns. Some disagreement arose and Robinson arranged to meet Foster when Foster would have the marijuana, but then tipped off the police, who arrested Foster with the marijuana.

On February 19 a search warrant was obtained on the basis of information given by Robinson and Foster to Sheriff Stan Witt. The warrant authorized a search of appellant's farm in Fulton County and the seizure of two three-wheeler motorcycles, a cutting torch, two bottles, a double-barreled shotgun, a bolt action shotgun, a semiautomatic rifle, a rifle with a scope, and an undeterminate amount of marijuana. The warrant was executed and, except for the guns, the articles were found in appellant's barn. Marijuana was found in the barn and in a cattle feeder.

I The Search Warrant

Appellant attacks the search warrant on eleven grounds (numbered A through K). He submits that even if no defect, taken alone, would invalidate the warrant, the accumulation of errors is fatal under Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). We uphold the warrant.

A

Appellant alleges the February 19, 1985 affidavit of Sheriff Witt failed to recite facts which tended to prove the reliability of the two unnamed informants (Robinson and Foster). Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We disagree. The affidavit states that one informant told him on February 16, 1985 he went with another individual on February 6, 1985 to the farm of the appellant with "two three-wheeler motorcycles, a cutting torch and two bottles" exchanged for one and one-half pounds of marijuana. The affidavit futher states "within the last two days" the other informant returned to appellant's barn where he was shown in excess of ten pounds of marijuana and where he observed the stolen articles still stored there. We note the informants gave specific details from their own actions and observations, describing the articles, the locations and the times with precision. Coupled with the Sheriff's assertion he considered the informants reliable the affidavit was sufficient. ¹ Wolf v. State, 10 Ark.App. 379, 664 S.W.2d 882 (1984).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the two-pronged test of Aguilar and Spinelli was replaced by a different test--"a practical, common sense decision," based on all the circumstances, including the veracity and basis for knowledge of persons supplying information. It is sufficient if "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Under Gates it is the duty of the reviewing court simply to insure that the magistrate issuing the warrant had a substantial basis for concluding that probable cause existed. We are satisfied those requirements were met in this case. Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987); Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985).

In Jackson, the affidavit said only that "a reliable informant advised affiant that he gave another boy $20 to get him some marijuana and watched him go to Spike Jackson's house. When he came out he gave him a bag of green leafy substance and he returned this bag to me." Here, Sheriff Witt initially received information directly from one of the participants, Robinson, describing the removal of specific articles of stolen property and the transporting of that property to appellant's farm in exchange for marijuana. Robinson's information was independently confirmed in three respects: Foster was intercepted where and when Robinson had said he would be, Foster had the marijuana as Robinson had said, and Robinson's information about the delivery of the stolen property to appellant was corroborated by the other informant, Foster. Foster's information reenforced a conclusion that the stolen articles were still there two days later when Foster returned to appellant's farm to trade the stolen guns for more marijuana. Moreover, the admission by the informants of the possession of stolen property cast them under a cloud, and we have recognized that when an informant gives information which exposes himself to prosecution, there is an increased likelihood of reliability. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). The details and circumstances of these transactions and the corroborating aspect of two informants verifying the same events created a "fair probability that evidence of a crime would be found in the place designated," as indeed it was. Illinois v. Gates, supra.

B

Appellant maintains the warrant in this case was not issued by a judicial officer. He reasons that because the case of Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985) held the municipal court of Mammoth Spring was created in violation of our constitution, all proceedings and judgments of that court are null and void under Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748 (1903). However, we have later held that when a court is created under color of law it exists de facto and its orders are valid against collateral attack. Tumbs v. State, 290 Ark. 214, 718 S.W.2d 105 (1986); Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980).

C

Appellant submits the warrant was not returned in a timely manner. The warrant was returned on the seventh day, whereas five days are allowed under A.R.Cr.P. Rule 13.2(b)(v). On the fifth day Officer Beech called the magistrate, Judge Barksdale, to discuss returning the warrant. She informed him that Monday would be acceptable. The warrant was executed within the allotted time, and there was a good faith reliance with no resulting prejudice to the appellant. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

D

Appellant's argument that there was no written verification of the report of the execution of the warrant is without merit. Officer Beech testified Judge Barksdale placed him under oath before receiving the information. ² The requirements of A.R.Cr.P. Rule 13.4(b) were adequately met.

E

Appellant contends the warrant is defective because A.R.Cr.P. Rule 13.2(b)(i) provides the warrant shall state the date and place where the application was made and this warrant failed to state precisely where the application occurred. True, but the date and Fulton County, Arkansas, are stated and in the absence of any showing as to why greater exactitude was required, we reject the argument. A.R.Cr.P. Rule 16.2; Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977).

F

A.R.Cr.P. Rule 13.4(c) requires the issuing magistrate to "file the warrant, report, and list returned to him with the record of the proceeding on the application for the warrant." Judge Barksdale did not file the material until sometime later, prompting the argument that this infraction invalidates the warrant. No prejudice, nor even any inconvenience so far as we can tell, resulted and we regard the delay as inconsequential. Boyd v. State, 13 Ark.App. 132, 680 S.W.2d 911 (1984).

G

Citing A.R.Cr.P. Rule 13.4(d), appellant argues Judge Barksdale's failure to transmit the warrant and accompanying documents to the circuit court, which has jurisdiction over felony cases, renders the warrant defective. Judge Barksdale evidently retained the papers in her office until the suppression hearing. As the state points out, the rule is not mandatory, as it states "he may transmit the warrant, etc." As with the other challenges to the search warrant, appellant has shown no reason why this handling of the warrant has put him at any disadvantage. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985).

H

Rule 13.3(d) of the criminal rules states that upon completion of the search a receipt shall be made and given to the person from whom the things are seized. That was not done in this case. Had that omission resulted in some doubt about the identity or whereabouts of the articles seized, the argument would...