Harris v. State , 12 Ark. App. 181 ( 1984 )

Donald L. Corbin, Judge.

Appellants, Cullen Reed Harris and Sandra Kay Harris, were tried and convicted by a Sevier County jury of the offense of manufacturing a controlled substance. The trial court sentenced each appellant to fifteen years in the Arkansas Department of Correction and fined each the sum of $12,000.00. We reverse and remand for a new trial.

I.

THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE WAS INSUFFICIENT.

We need not address this point for reversal challenging the sufficiency of the evidence inasmuch as we reverse and remand for procedural errors committed by the trial court.

II.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF FINGERPRINT COMPARISONS BECAUSE APPELLANTS’ FINGERPRINTS WERE OBTAINED AFTER AN UNLAWFUL ARREST.

The only witness to testify at the suppression hearing on the arrest was Bill Jones, The Chief of Police of DeQueen, Arkansas. He stated that Lt. Duval of the Arkansas State Police had contacted him stating that the state police would like to question appellants. Several days later, Jones observed appellants’ car and followed it until he could confirm that the state police still wanted to question appellants. Jones then stopped appellants and when appellant Cullen Harris started to get out of the car, Jones observed a pistol. Appellant Cullen Harris was subsequently charged with illegal possession of a prohibited weapon. Appellants’ fingerprints were taken and matched for comparison with prints taken from items in the van. Appellants were successful in municipal court in having the illegal possession of a handgun charge dismissed on the basis of the extended trip exception. We see no error here. It is clear from Chief Jones’ testimony that the officer in this case made a proper determination of probable cause to arrest appellants without a warrant on the handgun charge following a proper stop of their vehicle in order to question them about another offense. See Ark. Stat. Ann. § 43-429 (Repl. 1977), and A.R.Cr.P. Rule 2.2.

III.

THE TRIAL COURT ERRED IN DENYING APPELLANTS’ MOTION FOR EITHER A MISTRIAL A CONTINUANCE OR SUPPRESSION OF THE EVIDENCE BECAUSE IT BECAME APPARENT DURING THE TRIAL THAT THE STATE HAD EITHER REFUSED TO OBEY THE COURT’S ORDER REGARDING DISCOVERY OR HAD KNOWINGLY OFFERED UNTRUE TESTIMONY.

The record reflects that defense counsel, prior to trial, filed two separate motions for discovery. Because the State failed to respond to the first motion, the case was continued. Once the discovery requests were complied with, it became apparent to defense counsel that persons other than appellants had made suspicious purchases of chemicals from several companies located in Little Rock and Conway. In an effort to find out who had been making these purchases, defense counsel filed a subsequent motion for discovery requesting the notes from interviews with the employees of these chemical companies and copies of any photographs shown to them. Information furnished by the State indicated that no witness had identified either appellant. The State further claimed that photographs of appellants were shown to the witnesses between April 11, and April 13, 1982. The photographs of appellants furnished by the State were photographs taken after their arrest on April 27, 1982, and could not possibly have been the photographs exhibited to the witnesses.

During trial, witness Betty Martin testified that she recognized appellant Sandra Harris as having been a passenger in a van driven by a person known to her as Jim Roberts when he purchased chemicals from Ms. Martin’s employer, SIS, Incorporated, on three occasions in the spring of 1981. She also claimed that an Officer Berry or some other officer had shown her four individual photographs of four different women, from which she selected a photograph of appellant Sandra Harris. This occurred on cross-examination by defense counsel. She did admit, however, that she could have selected a photograph of someone else, but insisted that police had shown her photographs on several occasions and that she had selected a photograph of the woman riding in a van with Jim Roberts. Officer Berry testified both before the jury and in an in-camera hearing that he had shown photographs to Ms. Martin on one occasion, that she had identified two photographs of Jim Roberts and that Ms. Martin had stated that a photograph of a woman looked like the person she saw as a passenger in the van. It was stipulated by the parties that this photograph of a woman was not in fact a photograph of appellant Sandra Harris.

The record reflects that the State was apparently as surprised as defense counsel in regard to the alleged out-of-court identification based upon photographs shown to Ms. Martin by a second officer, an Officer Stepp. No record of this identification was in Officer Berry’s records or in any of the prosecution’s files.

We do not agree with the State’s contention that Officer Berry’s testimony could be used as impeachment of Ms. Martin’s testimony and that no error occurred. The argument of appellee is without merit as the harm was already done at this point and the prejudice to appellants obvious. Furthermore, it is of no avail to the State that defense counsel had equal access to witness Martin. The record reflects that defense counsel did have contact with Ms. Martin on several occasions, but in view of the State’s responses to appellants’ discovery motions, there was nothing provided to alert them to a possible out-of-court identification. We believe appellants had a right to rely on their earlier discovery motions. We do not believe this to be a case of a defendant in a criminal case relying on discovery as a total substitute for his own investigation, which is impermissible. Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 104 S.Ct. 121 (1983).

At this stage of the proceedings, the following alternatives were available within the discretion of the court: (1) grant appellants’ motion for a continuance so they could obtain and inspect the evidence; (2) suppress the identification testimony or, (3) grant a mistrial. The fact that the trial court did suppress any further reference to the alleged out-of-court identification did not cure the problem. Witness Martin had already testified under oath to the out-of-court identification. Thus, pnly two of the three alternatives were available to the trial court. We do not believe the court abused its discretion in not granting a mistrial as a mistrial in an extreme remedy which should only be granted as a last resort when the error is so prejudicial that justice could not have been served by continuing the trial. Pruitt v. State, 8 Ark. App. 350, 652 S.W.2d 51 (1983). We believe the first alternative, granting a continuance, would have been the more prudent choice as the trial could possibly have resumed after a short delay. A continuance need only be granted upon a showing of good cause. A.R.Cr.P. Rule 27.3. The burden is upon the appellants to demonstrate that the trial court abused its discretion in denying a continuance. Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983). Our review of the proceedings in the instant case leads us to the conclusion that appellants have met their burden and the trial court abused its discretion. We reverse and remand for a new trial on this point.

IV.

THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL WHEN THE PROSECUTOR DELIBERATELY ARGUED OUTSIDE THE RECORD ON THREE OCCASIONS.

Appellants allege reversible error in the trial court’s rulings on three objections made by them during the prosecuting attorney’s closing argument. It has been uniformly held that in cases of denial of a motion for mistrial based upon prosecutorial improprieties, we will not reverse the judgment of the trial court in the absence of an abuse of the wide latitude of discretion vested in the trial judge. Brown & Bettis v. State, 259 Ark. 464, 534 S.W.2d 207 (1976). We have always recognized and given due regard to the trial judge’s considerable degree of discretion in controlling and supervising arguments of attorneys at jury trials. McGill v. State, 253 Ark. 1045, 490 S.W.2d 449 (1973).

The first objection in the case at bar was in reference to comment by the prosecutor on the testimony of the president of Capital Chemical and Supply Company that appellant Sandra Harris ordered the platinum oxide through his company. The trial court agreed with appellants that this argument was outside the record and in fact opposite to the witness’s testimony, but refused to grant a mistrial. Next, appellants objected to the prosecutor’s comment on testimony by the chemist. The prosecutor started to show the jury State’s Exhibit No. Seven, which was a box top with a chemical formula written on it, when appellants objected and correctly pointed out that the exhibit had never been introduced into evidence. Again, the court denied appellants’ motion for mistrial. In each of these two instances, the trial court promptly admonished the jury to the effect that any statement not borne out by the evidence, made by the attorneys, was to be disregarded and that the jury was to disregard any testimony in regard to State’s Exhibit No. 7. In addition, the jury had been instructed with the standard instruction AM Cl 101(e) that “closing arguments of the attorneys are not evidence but are made only to help in understanding the evidence and applicable law.” Instructions and admonitions to the jury generally suffice except where the comments of counsel are patently inflammatory and prejudicial or where improper tactics are so repetitious that fairness is overcome. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). We believe the above was sufficient to cure any possible prejudice to appellants and the trial court properly denied their motions for mistrial.

Finally, the court overruled appellants’ objection when the prosecutor argued to the jury on the issue of punishment to the effect that he had seen 16, 17, 18 and 19-year old persons sent to prison for using less serious drugs than those involved in this case. These remarks regarding punishment were made on facts outside the record which could have caused the jury to be persuaded to punish appellants more severely and was thus prejudicial and highly improper. A mistrial should have been granted. See Mays v. State, 264 Ark. 553, 571 S.W.2d 429 (1978) and Long v. State, 260 Ark. 417, 542 S.W2d 742 (1976). As stated in Mays, supra, . .the desire to obtain a conviction is never proper inducement for a prosecutor to include in his closing argument anything except the evidence in the case and legitimately deducible conclusions that may be made from the law applicable to a case.” We reverse and remand for a new trial on appellants’ third objection to the prosecutor’s remarks during closing argument.

V.

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE CONTENTS OF THE PLYMOUTH VAN OBTAINED THROUGH AN ILLEGAL SEARCH.

The evidence presented by the State at the suppression hearing reveals that Floyd Peterson, owner of a self-storage garage, became concerned over a chemical odor emanating from one of the rented compartments in his garage. His wife testified that she had rented the unit to an Allen Parson; that the contract provided that no combustibles should be stored and that property would be considered abandoned and disposed of after sixty days of unpaid rental; and that the rent on this unit was six months past due. Peterson called the police and requested assistance in investigating the odor. After cutting the lock, Peterson consented to Officer Sullivan entering the unit and the van located inside which was the apparent source of the odor.

The record reveals that the officer had previously worked with chemicals and recognized the odor as coming from a combustible chemical. When he entered the van, he observed an assortment of glassware and chemicals which had spilled out or rusted through their containers. Officers Sullivan and Sanderlin both testified that they were concerned over the possibility of an explosion or fire.

Rule 11.2 of the Arkansas Rules of Criminal Procedure provides:

Persons From Whom Effective Consent May be Obtained.

The consent justifying a search and seizure can only be given, in the case of:

* * *

(b) search of a vehicle, by a person registered as its owner or in apparent control of its operation or contents at the time consent is given; and

(c) search of premises, by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent.

Peterson was the owner of the premises and requested the search. By the terms of the rental contract, the van was abandoned property which was under Peterson’s control. Other facts support a finding that the van was abandoned and that appellants had no expectation of privacy in it as follows: no rent had ever been paid following the initial contract; no address or telephone number was listed at which the Petersons could contact the presumed owner; and the license tag had been removed from the van before it was stored. The evidence is uncontroverted that Peterson had the authority to consent to the search. See Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980). We find no error on this point for reversal.

Reversed and remanded.

Cooper and Cracraft, JJ., agree.