Wilson v. State, CA CR07-682 (Ark. App. 4/9/2008), CA CR07-682.

• Decision Date: 09 April 2008
• Docket Number: CA CR07-682.
• Parties: John W. WILSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

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John W. WILSON, Appellant, v. STATE of Arkansas, Appellee.

CA CR07-682.

Court of Appeals of Arkansas.

Division II.

Opinion Delivered April 9, 2008.

Appeal from the Hempstead County Circuit Court [No. CR-2006-145-1], Hon. Duncan Culpepper, Judge.

Affirmed.

ROBERT J. GLADWIN, JUDGE.

Appellant John Wilson appeals his conviction from the Hempstead County Circuit Court on a charge of delivery of a controlled substance, crack cocaine, for which he was sentenced as a habitual offender to a term of forty years in the Arkansas Department of Correction. On appeal he argues that the circuit court erred by denying his request for sanctions against the State for discovery violations and by admitting a duplicate digital-video recording in violation of the best-evidence rule. We affirm.

On March 31, 2005, South Central Drug Task Force Officer Jeff Brewer and a confidential informant, James Lewis, were driving around in an attempt to buy illegal drugs. They were flagged down by appellant, and they explained to him they were looking for "a twenty." Appellant told them that he could get it for them, got into the vehicle, and directed them to a house. At that time, appellant took the twenty dollars from Officer Brewer, went into the house, and subsequently returned to the vehicle with what appeared to be cocaine. Appellant then asked Officer Brewer for five dollars, and Officer Brewer gave it to appellant and dropped him off at a car wash.

The events were caught on tape by a hidden camera located in the undercover vehicle. An information was filed on June 5, 2006, and on June 11, 2006, appellant was arrested and charged with delivery of a controlled substance, crack cocaine. Appellant propounded requests for discovery on the State on October 16, 2006, and the State responded on January 24, 2007, stating that "pursuant to the Arkansas Rules of Criminal Procedure, all materials contained in the investigating file of the [p]rosecuting [a]ttorney and that is subject to be discovered is open for inspection by the [d]efendant and his attorney during normal and regular business hours." The State amended its information on March 16, 2007, to specify the exact controlled substance that was delivered as well as to indicate to whom the controlled substance was delivered. A jury trial was held on March 20, 2007, during which the circuit court admitted a duplicated digital-video recording of the transaction into evidence and allowed the jury to view the recording. The jury convicted appellant, and he was sentenced as previously set forth. A judgment and commitment order was filed on March 21, 2007, and appellant filed a timely notice of appeal on April 3, 2007.

I. Discovery Violation

Appellant's first point on appeal relates to an alleged discovery violation that he contends prejudiced his case. On October 16, 2006, his attorney filed a request for discovery that included, in part:

1. The names, residence addresses, telephone numbers and place of employment of all persons that the Prosecuting Attorney intends to call as witnesses at the trial of this cause, and nature, substance, and source of their information and testimony;

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14. The names, addresses, telephone numbers and places of employment of all persons who have any knowledge of any material facts in connection with this cause, including any informants who have supplied any information to the police or Prosecuting Attorney.

On January 24, 2007, the State responded to the request, stating that "pursuant to the Arkansas Rules of Criminal Procedure, all materials contained in the investigating file of the [p]rosecuting [a]ttorney and that is subject to be discovered is open for inspection by the [d]efendant and his attorney during normal and regular business hours." The State was invoking what is commonly referred to as the "open-file policy," and appellant argues that the State violated its discovery obligations by failing to timely identify a witness of the alleged drug transaction, specifically the confidential informant, James Lewis.

Arkansas Rule of Criminal Procedure 17.1(d) states that the prosecuting attorney shall, "promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor." Additionally, Ark. R. Crim. P. 17.3 provides that the prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.

Rule 19.2 of the Arkansas Rules of Criminal Procedure imposes a continuing duty to disclose as follows:

If before trial, but subsequent to compliance with these rules, or an order entered pursuant thereto, a party discovers additional material or information comprehended by a previous request to disclose, he shall promptly notify opposing counsel or the other party of the existence of such material or information. If additional material or information is discovered during trial, the party shall notify the court and opposing counsel of the existence of the material or information.

Finally, Ark. R. Crim. P. 19.7(a) states that a circuit court may issue sanctions for the failure to comply with discovery rules:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may [1] order such party to permit the discovery or inspection of materials not previously disclosed, [2] grant a continuance, [3] prohibit the party from introducing in evidence the material not disclosed, or [4] enter such other order as it deems proper under the circumstances.

Appellant acknowledges that the circuit court has broad discretion in matters pertaining to discovery, which will not be second-guessed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. See Travis v. State, __ Ark. __, __ S.W.3d __ (Dec. 6, 2007). Absent a showing of prejudice, we will not reverse. Id. Even where a discovery violation has occurred, appellate courts will not reverse if error is harmless. MacKintrush v. State, 60 Ark. App. 42, 959 S.W.2d 404 (1997). See also Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994) (finding that discovery violations on the part of the State had occurred, but also finding that the appellant failed to demonstrate prejudice). The key in determining whether a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose. See Travis, supra.

Appellant cites Dever v. State, 14 Ark. App. 107, 685 S.W.2d 518 (1985), a case in which this court reversed a conviction based upon a discovery violation by the State. In Dever, the issue was that critical information was located, not in the prosecutor's file, but rather in a file at the sheriff's office. This court stated that it did not read Robinson, supra, to hold that simply because the prosecution has an open-file policy does not mean it has fulfilled its discovery obligation, when defense counsel is then required to examine all other files in the county maintained by law-enforcement officials. Id. at 112, 685 S.W.2d at 521. Appellant asserts that the State's reliance upon the open-file policy required that the State make every practical effort to ensure that the information and records contained in the file were complete. He claims that the State made no effort to ascertain the identity of the third party present during the alleged transaction. Officer Brewer testified that the informant's name and contact information was available and contained in the police file, but he also testified that he was never asked by the State to provide that information. Appellant maintains that the State failed to provide him with the identity and contact information of the eye witness to the alleged transaction, and that it was not until trial, some two years after the alleged transaction, that the State informed him, as well as the circuit court, that the...