Westbrook v. State, CR

• Decision Date: 10 June 1985
• Docket Number: No. CR,CR
• Citation: 286 Ark. 192,691 S.W.2d 123
• Parties: J.D. WESTBROOK, Appellant, v. STATE of Arkansas, Appellee. 85-59
• Court: Arkansas Supreme Court

Page 123

691 S.W.2d 123

286 Ark. 192

J.D. WESTBROOK, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-59

Supreme Court of Arkansas.

June 10, 1985.

Fulkerson & Todd, Paragould, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellant Westbrook was found guilty of possession of marihuana with intent to deliver and was sentenced to a term of four years and a $10,000 fine. For reversal he questions the sufficiency of the evidence and the court's rulings upon two other matters. The case was transferred to us by the Court of Appeals as presenting an issue of statutory construction. Rule 29(1)(c).

First, the sufficiency of the evidence. In considering this point we view the evidence in the light most favorable to the jury's verdict and do not weigh it against other conflicting proof favorable to the accused. When the testimony is so considered, this verdict is supported by substantial evidence.

Westbrook owned his home and shared its occupancy with Jim Vick. The two men each had a bedroom, with the other areas being jointly occupied. Vick signed the affidavit for a search warrant that led to a search of the house by police officers. They found a total of 9.1 ounces of marihuana in the kitchen area, and none elsewhere. The marihuana was in various containers in a china cabinet. Possession of more than an ounce of marihuana creates a presumption of intent to deliver. Ark.Stat.Ann. § 82-2617(d) (Supp.1983).

The appellant relies upon Ravelette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), and like cases, for the rule that where there is joint occupancy of the premises there must be some factor in addition to the joint control to link the accused with the controlled substance. In Ravelette there was no such evidence. There the codefendant admitted that the marihuana was his and exonerated the appellant of any knowledge of its presence or control. Here Vick, the joint occupant, was not available to testify at the trial.

In this case there were several facts connecting Westbrook with the marihuana. He owned the house and had the superior right to its control. When the officers entered to make the search he was alone. In the area where he was sitting there was a glass that contained burned marihuana residue. The glass was so warm to the touch as to indicate that the marihuana had been smoked or burned in it. In the kitchen there were several items of drug paraphernalia. In Westbrook's bedroom were a magazine featuring marihuana paraphernalia and another magazine entitled "Marijuana Growers Guide." In the bathroom was a kit containing two partially burned marihuana cigarettes. While an officer was searching the bathroom Westbrook came in, picked up a jewelry box, and started out. When the officer retrieved the box it was found to contain $3,700 wrapped in three brown paper bags. Upon being taken into custody Westbrook asked: "I would just like to know which whore in town turned me in." All this evidence is amply sufficient to satisfy the Ravelette requirement.

Second, it is argued that a juror, Sherry Long, gave misleading answers to questions put to her on voir dire. Those proceedings were not recorded. After the trial the interrogation of Juror Long was reconstructed by counsel in connection with a motion for new trial. Only two questions and answers were included in the reconstruction. The first was during the voir dire of the jury panel as a whole:

Judge Brown:

Do any of you know, have any acquaintanceship or relationship by blood or marriage to any of the following witnesses, whose names are ... Andy Foster ...?

Sherry Long: I know Andy Foster, but only because he is the County Sheriff.

During the questioning of individual jurors defense counsel asked one question of Ms. Long:

Mr. Fulkerson: Mrs. Long, I believe that you said you knew Andy Foster but only because he is the County Sheriff; is that right?

Sherry Long: Yes, I work for Lee Gatlin at the Paragould Collection Bureau and we deliver papers to the Sheriff's office. That's how I know Sheriff Foster.

At the hearing on the motion for new trial the defendant's sister-in-law testified that she saw a political ad for the sheriff's re-election, signed by Sherry Long. The witness telephoned Ms. Long at home, learned that she had run the ad, and "I asked her if she was accepting political contributions, and she said: 'Well, yes.' " The defense had subpoena'd Ms. Long for the hearing, but the trial judge refused to allow her to be questioned. There was no proffer of what she might have testified, only a request to question her at the hearing.

No reversible error is shown. To begin with, the juror's answers are not shown to have been untrue or evasive. She was asked about her "acquaintanceship" with Foster and replied that she knew him only as sheriff. There is no proof to the contrary. Ms. Long, although having delivered papers to his office for service, may have never even met the man and may have urged his re-election on the basis of the efficiency of his office. The defendant had the burden of proof at the hearing, but the proof is just not there. Moreover, although the sheriff had been listed as a witness, he did not testify at the trial. It is argued that some of his deputies did testify, but the assumption that Ms. Long may have been readily inclined to believe their testimony is hollow. The credibility of the State's witnesses was not even challenged, the defense being not that the State's testimony was false but that Westbrook had no connection with the marihuana found in his home.

On this point counsel also argue that "there is absolutely no foundation" for the court's ruling that Sherry Long...