RODNEY HARMON v. STATE OF ARKANSAS , 2020 Ark. 217 ( 2020 )

Cite as 2020 Ark. 217
SUPREME COURT OF ARKANSAS
No. CR-18-1057
Opinion Delivered: May 28, 2020
RODNEY HARMON
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
V. [NO. 23CR-15-702]
STATE OF ARKANSAS HONORABLE CHARLES E. CLAWSON,
APPELLEE JR., JUDGE
AFFIRMED; COURT OF APPEALS’
OPINION VACATED.
ROBIN F. WYNNE, Associate Justice
Rodney Harmon was convicted of various drug and drug-related offenses and
sentenced to an aggregate term of forty years’ imprisonment. On appeal, Harmon argues
that the trial court erred by (1) refusing to order the State to obtain a video recording of
the search of Harmon’s home and to identify the filmmakers; (2) denying Harmon’s
request for a continuance to obtain the video and identify the filmmakers; (3) granting the
State’s motion in limine to exclude testimony regarding the filmmakers’ presence; (4)
giving a nonmodel jury instruction on the methamphetamine-trafficking charge; and (5)
allowing the State to play a recording of a controlled drug buy through an informant
during the penalty phase of the trial. We affirm and vacate the opinion of the court of
appeals.
I. Background
In September 2015, officers of the United States Drug Enforcement Agency, the
Twentieth Judicial District Drug Task Force, and the Faulkner County Sheriff’s Office
executed a warrant for the search of Harmon’s home. They found more than six pounds of
methamphetamine, multiple firearms and ammunition, baggies, scales, and cash. An HBO
documentary film crew was also present at the search under an agreement with law
enforcement. The crew, which consisted of Craig and Brent Renaud and a camera
operator, was working on a documentary called Meth Storm, which later aired on HBO. The
filmmakers did not participate in the search, nor did they include footage of the search in
the film. They were not included as witnesses in the report of the search given to
prosecutors. The film’s credits thanked the judge and deputy prosecuting attorney who
handled Harmon’s case.
For more than a year after the search took place, the prosecutor was unaware of the
presence of the filmmakers. When she learned of their presence in January 2017, she
contacted defense counsel, stating that she did not have any of the footage but providing
contact information for Craig Renaud. Days later, Harmon moved for a continuance. At a
hearing on the motion, Harmon argued that the filmmakers could be agents of the State.
He argued that the footage could be relevant and subject to disclosure, and that he might
want to file an amended motion to suppress, based on the contents of the footage. The
prosecutor said that the State did not have the HBO footage and that she had
unsuccessfully tried to contact HBO to obtain it. She also said she had given defense
counsel the information she had. The trial court granted the continuance.
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During the next several months, Harmon unsuccessfully sought the footage and the
identities of the filmmakers present at the search. The prosecutor gave defense counsel
additional contact information for the HBO legal department and DEA personnel who
may have approved the presence of the film crew. About a month before trial, the trial
court denied Harmon’s request for an order requiring the State to obtain the video but
issued an order to “whomever shall be in possession and/or ownership” of the video to
provide it. On the first day of trial, the trial court denied Harmon’s motion for a
continuance until the video was obtained and people present identified. The court granted
the State’s motion in limine to prohibit mention of the filmmakers’ presence at the search.
After the court granted the State’s motion, Harmon proffered testimony from LeAnn Bakr,
the DEA agent present at the search, that a previously unidentified camera operator named
“Cole” was present at the search. Bakr also testified that she chose not to include the
filmmakers as witnesses in her search-warrant report. Johnny Sowell of the drug task force
testified that, although he did not write the report, he would not have listed the
filmmakers as witnesses if he had.
Before trial, the State moved to use a nonmodel jury instruction on the
methamphetamine-trafficking charge. The State proffered a jury instruction that added a
series of factors for the jury to consider on “purpose to deliver,” pulled from the model
instruction for a lesser-included offense. Harmon proffered the model instruction. Over
Harmon’s objection, the court gave the nonmodel instruction. The jury convicted Harmon
of trafficking methamphetamine within 1,000 feet of a school-bus stop, simultaneous
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possession of drugs and firearms, possession of drug paraphernalia, and maintaining a drug
premises within 1,000 feet of a school-bus stop. During the penalty phase of the trial, the
State moved to introduce recordings of drug purchases from Harmon allegedly made by
Shannon Daniels, a confidential informant who was not present at trial. Over Harmon’s
objection that the evidence was more prejudicial than probative, the trial court allowed the
evidence. Harmon was sentenced to an aggregate term of forty years’ imprisonment.
Harmon timely appealed his convictions. On December 4, 2019, the court of
appeals affirmed in part and reversed in part. Harmon v. State, 2019 Ark. App. 572, 591
S.W.3d 347. We granted Harmon’s petition for review. When we grant a petition for
review, we treat the appeal as if it had originally been filed in this court. Stone v. Washington
Reg’l Med. Ctr., 2017 Ark. 90, at 4, 515 S.W.3d 104, 107.
II. Points on Appeal
A. HBO Footage
For his first point on appeal, Harmon argues that the trial court abused its
discretion by refusing to order the State to obtain the HBO video footage of the search of
Harmon’s home and to identify the filmmakers present. Harmon acknowledges that the
State does not have an affirmative duty under Brady v. Maryland, 373 U.S. 83 (1963), to
produce evidence it does not have. But he contends that under Rules 17.1 and 17.4 of the
Arkansas Rules of Criminal Procedure, the State was obligated to obtain the footage and
the identities of the filmmakers. Rule 17.1(c) provides in relevant part that “[t]he
prosecuting attorney shall, upon timely request, disclose and permit inspection, testing,
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copying, and photocopying of any relevant material regarding (i) any specific searches and
seizures.” Rule 17.4(a) provides that “[t]he court in its discretion may require disclosure to
defense counsel of other relevant material and information upon a showing of materiality
to the preparation of the defense.”
In arguing that it was the State’s responsibility to provide the video, Harmon
contends that the HBO filmmakers were state actors or agents of the state because they
were present at the behest of law enforcement. We review rulings regarding alleged
violations of discovery rules for abuse of discretion. Hicks v. State, 340 Ark. 605, 612, 12
S.W.3d 219, 223 (2000). Harmon relies on Wilson v. Layne, 526 U.S. 603, 614 (1999), in
which the United States Supreme Court held that it is a violation of the Fourth
Amendment for police to bring members of the media or other third parties into a home
during the execution of a warrant when the presence of the third parties in the home was
not in aid of the execution of the warrant. Harmon argues that because the filmmakers
were state actors or agents, the State had an obligation to obtain the video and identify
who was present at the search.
Harmon does not provide convincing authority to support his contention that the
filmmakers were state actors or state agents. The filmmakers were more than mere
bystanders; they were present at the invitation of law enforcement. But that does not make
them state actors or agents. Bakr and Sowell testified that the filmmakers did not
participate in the search. Wilson is not on point. Any possible Fourth Amendment claim
Harmon may have against law enforcement under Wilson stemming from the presence of
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the filmmakers at the search is distinct from the State’s discovery obligation to obtain the
video and identify all individuals present.
Harmon cites a series of cases for the proposition that information held by the
police is imputed to the prosecution. In Williams v. State, 267 Ark. 527, 593 S.W.2d 8
(1980), the defendant made an incriminating statement in the presence of a police officer.
The prosecutor learned of the statement the evening before trial but did not disclose it to
the defense until after voir dire the next day. We concluded that because the defendant
made the statement in the police officer’s presence, the officer’s knowledge of the
statement was imputed to the prosecution. Id. at 531, 593 S.W.2d at 10. Likewise, in Lewis
v. State, the State called a witness whom the prosecutor had learned about the morning of
the trial. Because the witness had given crucial information to the police, we concluded
that information was imputed to the prosecution. 286 Ark. 372, 375, 691 S.W.2d 864,
865 (1985). Harman argues that because law enforcement knew about the presence of
filmmakers during the search, that knowledge is imputed to the prosecution, which had a
duty to disclose the footage under Rule 17. We disagree. While we recognize that
information held by the police is imputed to the prosecution, in this case the police did
not possess the footage and did not take statements from the filmmakers. The State did not
call the filmmakers as witnesses or introduce the footage into evidence. Plus, the
prosecutor disclosed the existence of the footage and contact information for the
filmmakers more than a year before trial.
Harmon also argues that the presence of the filmmakers at the search of his home is
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analogous to the presence of witnesses at the taking of a custodial statement. We have held
that the State must produce all witnesses present at the taking of a custodial statement or
explain their absence, Foreman v. State, 328 Ark. 583, 590, 945 S.W.2d 926, 930 (1997).
But the taking of a custodial statement is not the same as the search of a home. And the
State did disclose the presence of the filmmakers. Under these circumstances, we decline to
extend our holding in Foreman to include witnesses present at the execution of a search
warrant who did not participate in the search.
The State cites Barrow v. State, 2010 Ark. App. 589, 377 S.W.3d 481, to support its
contention that Rule 17 does not require it to produce the video. In Barrow, there was
evidence of the victims’ medical treatment at area hospitals that the State did not disclose
to the defense. The court of appeals held that “[b]ecause the medical facilities are not law-
enforcement agencies, the prosecutor had no obligation to obtain the records under Rule
17.3. In the absence of a showing . . . that the State had access to the records, no discovery
violation occurred.” Id. at 15, 377 S.W.3d at 491. According to the State, the evidence
held by the filmmakers is akin to evidence held by the hospitals in Barrow.
We agree. The filmmakers were not law-enforcement officers, nor were they acting
as state agents. Because the State did not possess the video, we find no discovery violation.
It is undisputed that neither the police nor the prosecution had the video. As soon as she
found out about the presence of the filmmakers, the prosecutor informed defense counsel
and provided contact information for one of the filmmakers. She also attempted to get the
video herself and later provided additional contact information for relevant individuals at
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HBO and the DEA more than a year before trial. The question is not whether the State
could have done more to get the video; it is whether the trial court abused its discretion by
not ordering the State to do so. We conclude the trial court did not abuse its discretion in
declining to order the State to obtain the video.
B. Continuance
Next, Harmon argues that the trial court abused its discretion by denying the
defense’s request for a continuance to obtain the video and the identity of the filmmakers
present. He argues that he made good-faith efforts to obtain the evidence and was
prejudiced without having it at trial. He tried to obtain the video—he contacted counsel for
HBO, which declined to produce the footage without an order, contacted the Renauds’
company, and attempted to serve Craig Renaud—but was ultimately unsuccessful.
We review the denial of a continuance for abuse of discretion. Price v. State, 365
Ark. 25, 33, 223 S.W.3d 817, 824 (2006). A trial court should consider the following
factors in deciding whether to grant a continuance: (1) the diligence of the movant; (2) the
probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of
the witness in the event of a postponement; and (4) the filing of an affidavit, stating not
only what facts the witness would prove, but also that the appellant believes them to be
true. Miller v. State, 328 Ark. 121, 124, 942 S.W.2d 825, 827 (1997).
The trial court did not abuse its discretion in denying Harmon’s request for a
continuance. Harmon knew about the existence of the footage for about sixteen months
before trial. He made multiple attempts to get the video. The need for an order was
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discussed with the trial court during the October 2017 hearing on Harmon’s motion to
continue. The State agreed to the continuance, and the prosecutor said she was “willing to
do whatever is necessary” for Harmon to get the video. But there is nothing in the record
that shows Harmon made efforts to obtain an order until the trial court issued it in May
2018, less than a month before trial. There is no evidence that he attempted to subpoena
HBO. We find that there is little likelihood that he could obtain the evidence if given
another continuance. Plus, there is no evidence about the probable effect of the evidence
at trial. We acknowledge that Harmon only learned of the identity of a camera operator
named “Cole” from Bakr’s proffered testimony on the first day of trial. But Harmon knew
for more thana year that HBO filmmakers had been present; that he did not know the first
name of the camera operator did not merit a continuance under these circumstances.
C. Motion in Limine
Harmon argues that the trial court abused its discretion by granting the State’s
motion in limine to exclude testimony regarding the presence of the HBO filmmakers. He
argues that trial references to absent witnesses are a proper subject of argument, citing
Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994), and Noel v. State, 331 Ark. 79, 960
S.W.2d 439 (1998), for the proposition that references to absent witnesses imply those
witnesses have something to hide. He contends that the presence of undisclosed witnesses
at the scene of the offense and the fact that the search was recorded but the footage was
not provided raises the inference that law enforcement wanted to conceal their presence,
showing reasonable doubt.
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We review the trial court’s ruling on the admissibility of evidence for abuse of
discretion. Vance v. State, 2011 Ark. 392, at 6, 384 S.W.3d 515, 519. Under Arkansas Rule
of Evidence 403, a trial court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
The trial court did not abuse its discretion in granting the State’s motion to exclude
testimony about the film. The cases Harmon cites, Bullock and Noel, can be distinguished.
In both cases, the defendant gave alibi testimony—Bullock testified that he worked and
received a paycheck on the day of the offense, and Noel gave names of alibi witnesses. In
closing arguments, the State pointed out holes in that testimony—Bullock did not produce
the paycheck, and Noel did not call the witnesses. In both cases, the trial court declined to
declare a mistrial, and we affirmed. These cases examine how the failure to produce alibi
evidence undermines the credibility of defendants who testify. Bullock, 317 Ark. at 206,
876 S.W.2d at 580–81; Noel, 331 Ark. at 89, 960 S.W.2d at 444. That is not the issue here.
Testimony that filmmakers were present at the search could possibly be relevant to
whether there was reasonable doubt about what happened during the search in the absence
of the footage or testimony from the filmmakers. But the trial court could conclude that
the risk of confusion substantially outweighed any probative value. Neither party planned
to introduce any footage; indeed, neither party had any footage. The filmmakers played no
role in the search; they merely observed it. Harmon’s argument that law enforcement had
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something to hide is undercut by the prosecutor’s prompt disclosure of the filmmakers’
presence well over a year before trial. We conclude that the trial court did not abuse its
discretion on this point.
D. Nonmodel Jury Instruction
Next, Harmon argues that the trial court abused its discretion by allowing a
nonmodel jury instruction on the methamphetamine-trafficking charge. The State
requested a nonmodel instruction on this charge, which added six factors that the jury
could consider in determining whether Harmon had “purpose to deliver” to the model
trafficking instruction, Arkansas Model Jury Instruction–Criminal 2d 64.440. Harmon
objected to the State’s request for a nonmodel instruction and proffered AMI Crim. 2d
64.440 as written. The instruction given to the jury read as follows (the nonmodel portions
are underlined):
Rodney Harmon is charged with the offense of trafficking
methamphetamine. To sustain this charge, the State must prove beyond a
reasonable doubt; first, that Rodney Harmon possessed or possessed with the
purpose to deliver more than 200 grams by aggregate weight including an adulterant
or dilutant of methamphetamine; and second, that he did so knowingly or
purposely.
Purpose to deliver may be shown by evidence that you find beyond a
reasonable doubt proves Rodney Harmon’s purpose to deliver methamphetamine.
The evidence which you may consider along with all the facts and circumstances of
the case include any of the following factors:
 Defendant possessed the means to weigh, separate, or package
methamphetamine; or
 Defendant possessed a record indicating a drug related transaction; or
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 The methamphetamine was separated and packaged in a manner to facilitate
delivery; or
 Defendant possessed a firearm that was in his immediate physical control at the
time of the possession of the methamphetamine; or
 The Defendant possessed at least two other controlled substances in any
amount; or
 Other evidence that contributes to prove the Defendant’s purpose was to deliver
methamphetamine.
And these definitions are applicable:
Knowingly, a person acts knowingly with respect to his conduct or attendant
circumstances when he is aware that his conduct is of that nature or that such
circumstances exists. A person acts knowingly with respect to a result of his conduct
when he is aware that it is practically certain that his conduct will cause such a
result.
Possession, there are two kinds of possession, actual and constructive. Actual
possession of a thing is a direct physical control over it. Constructive possession
exists when a person, although not in actual possession of that thing, has a right to
control it and intends to do so. If two or more persons share actual or constructive
possession of a thing, either or both may be found to be in possession.
Purposely, a person acts purposely with respect to his conduct or a result
thereof when it is his conscious object to engage in conduct of that nature or to
cause such a result.
This instruction essentially imports the purpose-to-deliver language from an instruction on
a lesser-included offense—possession with intent to deliver—also given to the jury.
Harmon argues that a nonmodel instruction should be given only when the trial
judge finds that the model instruction does not accurately state the law or does not contain
an instruction on the subject. Ventress v. State, 303 Ark. 194, 197, 794 S.W.2d 619, 620
(1990). There is a model instruction on the trafficking charge—AMI Crim. 2d 64.440—so
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the question is whether the instruction accurately states the law. AMI Crim. 2d 64.440
tracks the language of Arkansas Code Annotated § 5-64-440—trafficking a controlled
substance. Therefore, Harmon argues, the trial court did not have discretion to give a
nonmodel instruction.
We will not reverse a trial court’s ruling on whether to submit a jury instruction
absent an abuse of discretion. Kinsey v. State, 2016 Ark. 393, at 9, 503 S.W.3d 772, 778. A
nonmodel jury instruction is to be given only when the model instruction does not
correctly state the law or there is no model instruction on the subject. Pokatilov v. State,
2017 Ark. 264, at 8, 526 S.W.3d 849, 856. Moreover, a trial court cannot modify a model
instruction unless it is clear that the model instruction incorrectly applies the law to the
facts. Moore v. State, 317 Ark. 630, 635, 882 S.W.2d 667, 669 (1994).
We reiterate our long-standing rule that a trial court should not give a nonmodel
instruction unless the court concludes that the model instruction does not accurately state
the law. See, e.g., Fincham v. State, 2013 Ark. 204, at 5, 427 S.W.3d 643, 647. Here, the
model instruction on trafficking proffered by Harmon accurately states the law. It tracks
the trafficking statute, Ark. Code Ann. § 5-64-440, which does not include the purpose to
deliver factors. The AMCI 2d 64.440 “Note on Use” explains that this exclusion was
intentional:
Possession with the purpose to deliver was added to trafficking in Act 529 of
2013, section 4, and the legislation did not include the factors to be considered.
Compare section 5 of Act 529 which lists factors with respect to Ark. Code Ann. §
5-64-442 and Ark. Code Ann. § 5-64-420. The committee has followed Act 529 and
has not included the factors in this instruction.
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We conclude that the trial court gave an erroneous instruction.
The question then is whether that error is harmless. An appellant is not required to
demonstrate prejudice when the trial court gives an erroneous instruction involving the
trial mechanism to be used in deciding a civil or criminal case. Skinner v. R.J. Griffin & Co.,
313 Ark. 430, 434, 855 S.W.2d 913, 916 (1993). However, we also explained that “an
appellee may demonstrate that the giving of an erroneous instruction was harmless, and we
would affirm. Some examples of this are where the jury demonstrably was not misled
because the jury rejected the theory of the erroneous instruction, or where the erroneous
instruction was obviously cured by other correct instructions.” Id. at 435, 855 S.W.2d at
916 (internal citations omitted).
We conclude that this erroneous instruction was obviously cured by other
instructions. The jury was instructed on the purpose-to-deliver factors—which they could
consider in the trafficking offense—in an instruction on the lesser-included offense of
possession with intent to deliver a few pages later. Harmon does not dispute that these
factors are legally accurate. The inclusion of these factors in the instruction on the
trafficking offense merely meant that that jurors would not have to flip back and forth
between instructions when considering the factors. Under these circumstances, we cannot
see how Harmon was prejudiced by the nonmodel trafficking instruction. Therefore, we
conclude that the giving of the nonmodel instruction was harmless error.
E. Witness Testimony
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Finally, Harmon argues that the trial court abused its discretion by allowing the
State, during the penalty phase of the trial, to play a recording of a drug purchase from
Harmon allegedly made by Shannon Daniels, a confidential informant who was not
present to testify. Harmon contends that this evidence was more prejudicial than probative
and should have been excluded under Arkansas Rule of Evidence 403.
We review the trial court’s admission of evidence in the penalty phase of a trial for
abuse of discretion. MacKool v. State, 365 Ark. 416, 456, 231 S.W.3d 676, 706 (2006).
Evidence may be excluded if the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice. Ark. R. Evid. 403. On appeal, Harmon merely restates
his claim below that this evidence was more prejudicial than probative. He fails to state
more than conclusory allegations, nor does he develop his argument. This court does not
consider arguments that are unsupported by convincing argument or sufficient citation to
legal authority. See, e.g., Armstrong v. State, 366 Ark. 105, 109, 233 S.W.3d 627, 631 (2006).
We find no abuse of discretion in the trial court’s admission of this testimony.
Affirmed; court of appeals’ opinion vacated.
BAKER, HART, and WOOD, JJ., dissent.
RHONDA K. WOOD, Justice, dissenting. The Fourth Amendment prohibits the
media and other unauthorized third parties from accompanying law enforcement into a
home during execution of a warrant. Wilson v. Layne, 526 U.S. 603 (1999). The Wilson
opinion, written by Chief Justice Rehnquist and joined by Justices O’Connor, Scalia,
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Kennedy, Souter, Thomas, and Ginsburg, explained that media ride-alongs further no
legitimate law enforcement purpose and
ignore the importance of the right to residential privacy at the core of the Fourth
Amendment. Were such generalized law enforcement objectives themselves
sufficient to trump the Fourth Amendment, the protections guaranteed by that
Amendment’s text would be significantly watered down.
Id. at 612 (cleaned up).
Despite Wilson’s clear holding, in 2015, HBO filmmakers accompanied the DEA
and the Twentieth Judicial District Drug Task Force while they executed a search warrant
at Harmon’s residence. The search warrant did not authorize the presence of any third
parties. Drug Task Force member Johnny Sowell testified that the filmmakers entered
Harmon’s home and surrounding premises. He stated that the filmmakers likely knew
about the search because either he or a DEA agent notified them. Sowell stated that he
often briefed the filmmakers on the task force’s operations so they could film them. This
search violated the Fourth Amendment.
The record does not reflect that the State made any significant attempt to obtain or
retain the unconstitutionally created footage as evidence. The State did not even disclose
the ride-along until January 2017, one month before the scheduled jury trial. While the
circuit court did at first grant Harmon continuances, it placed the burden on Harmon to
locate the film footage. The film footage is relevant because, before the January 2017
disclosure of the ride-along, Harmon had filed a motion to suppress and challenged the
search on Fourth Amendment grounds. I believe it was error for the circuit court to place
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this burden on Harmon, particularly given the constitutional violation and Harmon’s
challenge to the search. For these reasons, I respectfully dissent.
Our discovery rules require the State to disclose and permit inspection of “any
relevant material regarding . . . any specific searches and seizures.” Ark. R. Crim. P. 17.1(c).
The rules also provide that the circuit court “may require disclosure to defense counsel of
other relevant material and information upon a showing of materiality to the preparation
of the defense.” Ark. R. Crim. P. 17.4(a). When a party violates a discovery rule, the court
may exercise any of these options: order that party to permit the discovery or inspection of
materials not previously disclosed; grant a continuance; prohibit the party from
introducing the material; or enter another order that the court finds proper under the
circumstances. Ark. R. Crim. P. 19.7. It is within the circuit court’s discretion which
sanction to employ. Hicks v. State, 340 Ark. 605, 612–13, 12 S.W.3d 219, 224 (2000).
This case does not involve a Fourth Amendment issue on appeal. But Wilson is
relevant because of Harmon’s stated purpose for the footage. Early in the case, Harmon
moved to suppress the fruits of the search, and the State filed a response. At that time, law
enforcement knew HBO had filmed the search. Yet the State did not inform Harmon of
the possible existence of the film footage until 2017, did not aggressively help him obtain
it, and did not fully disclose the names of everyone present until the day of trial. It was not
until the DEA agent’s proffered testimony at trial that the defense discovered the presence
of another HBO-affiliated person named “Cole.” The State had a duty to disclose Cole’s
presence well before when Harmon requested it during discovery. The DEA agent’s
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knowledge is imputed to the prosecution, and the State’s failure to disclose until the day of
trial constitutes a discovery violation.
We have granted relief in similar cases. For example, we reversed and remanded for
a new trial when the State did not disclose a witness until the day of trial, even after the
defense’s timely discovery motion. Lewis v. State, 286 Ark. 372, 374, 691 S.W.2d 864, 865
(1985). We also reversed and remanded for a new trial when the State failed to disclose an
exculpatory statement in the possession of the police, reasoning as follows: “Even if the
statement was not in the prosecutor’s open file, the statement was imputed to the
prosecution and disclosure was required.” Lacy v. State, 272 Ark. 333, 335, 614 S.W.2d
235, 236 (1981). We also reversed and remanded for a new trial where, again, the State
disclosed on the day of trial adverse testimony of a witness. Williams v. State, 267 Ark. 527,
532, 593 S.W.2d 8, 11 (1980). Likewise, in this case, Harmon did not know about Cole’s
presence until the day of trial. This information, if provided earlier, would have given
Harmon another lead to locate the video footage.
Even so, the burden to locate the footage should not have fallen on Harmon
exclusively. The circuit court’s ineffectual order directed only “whomever shall be in
possession and/or ownership” to turn over the footage. The court placed no affirmative
burden on the State. And, as the proffered testimony showed, the filmmakers did not just
stumble onto the scene. Law enforcement invited HBO to the raid. Indeed, the State’s
cooperation with HBO resulted in a special thanks in Meth Storm’s closing credits to the
then-elected prosecuting attorney and deputy prosecuting attorney handling Harmon’s
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case. It is startling that the majority gives no credence to the legitimate argument that HBO
would be more responsive to these favored entities as opposed to Harmon’s defense
counsel. Under Rule 17.4, the circuit court should have exercised its discretion and
ordered the State to obtain the footage, which but for the Fourth Amendment violation
would never have existed.
I conclude these discovery violations entitle Harmon to a new trial. Without the
footage, one cannot say whether it would contain relevant or exculpatory evidence. The
court’s failure to require its disclosure—in the face of a constitutional violation—provides
sufficient grounds to reverse. The court failed to adequately address the State’s futile efforts
to turn over relevant information in the hands of its agents or in the hands of filmmakers
who were intimately involved with an unconstitutional search. If the footage could not be
located, after the State’s diligent and meaningful efforts, then Harmon should have been
free to discuss it during trial.
BAKER and HART, JJ., join.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
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