Wilson v. State, CA

• Citation: 662 S.W.2d 204,10 Ark.App. 176
• Decision Date: 21 December 1983
• Docket Number: No. CA,CA
• Parties: Charles "Tubby" WILSON, Appellant, v. STATE of Arkansas, Appellee. CR 83-70.
• Court: Arkansas Court of Appeals

Page 204

662 S.W.2d 204

10 Ark.App. 176

Charles "Tubby" WILSON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 83-70.

Court of Appeals of Arkansas,

Division II.

Dec. 21, 1983.

Rehearing Denied Jan. 18, 1984.

Felver A. Rowell, Jr., Morrilton, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Chief Judge.

In investigating a number of thefts, deputies of the Pope County Sheriff's Office were told that the thieves had traded much of the stolen merchandise to the appellant for marijuana. The officers obtained a search warrant based on the affidavit of one of the admitted thieves, searched appellant's home, and found numerous items that were listed in the warrant. During the search they noticed other items they remembered had been reported as stolen. They then obtained another warrant and seized these additional items. Appellant was arrested on February 9, 1981, and on October 26, 1982, was convicted of theft by receiving.

On appeal it is argued that the first search warrant was illegally obtained because the affidavit was not sworn to under oath. The affidavit states on its face that it was subscribed and sworn to before Municipal Judge Richard Peel, and the judge testified that he questioned the witness, Terry Pratt, about the content of the affidavit, asked if the statements therein were true, and had Pratt sign in his presence. He admitted, however, that he probably did not require the witness to raise his right hand and state orally that the statements in the affidavit were "the truth, the whole truth, and nothing but the truth, so help me God." We do not think this was necessary.

In Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924), the appellant was convicted of making a false affidavit. The trial court had refused to instruct the jury in regard to the manner of administering oaths as set out in what is now Ark.Stat.Ann. §§ 40-101 & 102 (Repl.1962). Those sections provide that one may swear by uplifted hand or by laying a hand on and kissing the Gospels, but the court held that these were not the only methods by which oaths could be administered. The court said:

So here we think if appellant signed the affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing the affidavit as a method of making affirmation, the jury was warranted in finding that appellant was sworn. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49, 53, 14 S.W. 462.

Cox v. State was quoted with approval in A and B v. C and D, 239 Ark. 406, 390 S.W.2d 116 (1965). In addition, Ark.Stat.Ann. § 41-2601(3) (Repl.1977), reads as follows:

"Oath" means swearing, affirming and every other mode authorized by law of attesting to the truth of that which is stated. Written statements shall be treated as if made under oath if:

....

(b) the statement recites that it was made under oath, and the declarant was aware of such recitation at the time he signed the statement and intended that the statement should be considered a sworn statement; ....

Pratt admitted he signed the affidavit in the presence of the municipal judge, and the affidavit states "I, Terry Pratt, being duly sworn on oath, do solemnly swear ...." Although it is the state's burden to establish that the warrant was issued in compliance with the law, Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), when we review the trial court's ruling we make an independent determination based upon a totality of the circumstances, and do not reverse the trial court's finding unless it is clearly against the preponderance of the evidence. Grant v. State, 267 Ark. 50, 57, 589 S.W.2d 11 (1979). While a more formal procedure of administering the oath might be more appropriate, considering the evidence and law set out above, we find no reversible error in the trial court's ruling as far as the making of the affidavit under oath is concerned.

Likewise, we find no reversible error, individually or collectively, in the other attacks made upon the search warrant. We do not agree that the affidavit merely stated conclusions; and in view of the fact that the warrant described appellant's house as the Charles "Tubby" Wilson residence, Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977), and the more particularized description in the affidavit, Baxter v. State, 262 Ark. 303, 311, 556 S.W.2d 428 (1977), we do not agree that the description of the premises to be searched was inadequate.

Appellant says there was no finding of probable cause to issue the warrant, but the warrant states on its face that the magistrate found probable cause. Moreover, it has been held that the magistrate's actual issuance of the search warrant established his finding of probable cause even more positively than the insertion of a conclusory finding to that effect would have, Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977).

It is also argued that we should invalidate the warrant because there was no return on the face of it. The return, however, was attached to the warrant and we know no rule or reason that would prevent the return being made on a separate, attached document. Appellant also says the officer did not swear to the contents of the return, but his signature appears under the statement, "I swear that this inventory is a true and detailed account of all the property taken by me" and it is signed by the municipal judge under the line that states, "Subscribed and sworn to before me ...." Again, there was no formal oath-taking and the return probably was not signed in the judge's presence, but substantial compliance with the requirement of A.R.Cr.P. Rule 13.4(b) that a "verified" return be made was all that was necessary, Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977), and we cannot say that the trial court erred in holding against appellant on this point.

Appellant next says the testimony of Pratt differed at the suppression hearing from what was in his affidavit. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court said:

[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

The holding in Franks v. Delaware was applied by the Arkansas Supreme Court in Brown v. State, 264 Ark. 248, 570 S.W.2d 251 (1978). In the instant case, Pratt's testimony at the suppression hearing was certainly ambiguous and contradictory. In his affidavit he said the property described was stolen by him and personally delivered to the appellant's home and was still there the last time he was there. At the suppression hearing, he agreed with both prosecuting attorney and defense counsel and vacillated between confirming and rejecting the facts set out in his affidavit. We must defer to the superior position of the trial court to pass upon the credibility of witnesses, Grant v. State, supra, therefore, it was up to that court to decide which version of Pratt's testimony should be believed. Applying Franks v. Delaware to this situation, we think the appellant has failed to establish by a preponderance of the evidence that the affidavit contained a false statement knowingly and intentionally made or made with reckless disregard for the truth.

Appellant also says the affidavit signed by Pratt was prepared for the signature of Pratt's accomplice in the theft of the stolen property. There were actually two affidavits prepared--one for each man to sign--and the warrant was prepared to be based upon the affidavits of both of them. Judge Peel testified, however, that he removed the other name from the warrant and that it was based solely on the affidavit signed by Pratt. The United States...