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Millsap v. State

Court of Appeals of Arkansas, Division I

April 6, 2016


Page 560


         Hugh Richardson Laws, for appellant.

         Rachel Hrust Kemp, Att'y Gen., for appellee.

         BRANDON J. HARRISON, Judge. GLADWIN, C.J., and WHITEAKER, J., agree.


Page 561

          BRANDON J. HARRISON, Judge

         Marcus Millsap entered a conditional plea of no contest to delivery of a controlled substance and possession with the purpose to deliver, and he now appeals, arguing that the circuit court erred in denying his motion to suppress. We affirm.

         I. Facts

         On 1 May 2014, agents working with the Fifth Judicial Drug Task Force (DTF) met with a confidential informant to set up a controlled purchase of methamphetamine from Millsap. In the early morning hours of May 2, after the purchase had been completed, officers initiated a traffic stop of Millsap and arrested him. In June 2014, Millsap was charged with delivery of methamphetamine, possession with the purpose to deliver, and possession of a controlled substance.

         On 8 April 2015, Millsap filed a motion to suppress any and all evidence seized after the warrantless traffic stop and his arrest, asserting that there was no probable cause to stop his vehicle. On 23 April 2015, Millsap amended his motion to suppress to include his custodial statement made after his arrest. He argued that he had asked that the recording of his interview be stopped and had asserted his Miranda rights, but the State violated Ark. R. Crim. P. 4.7 (2014) when it failed to preserve, on audio/visual equipment, the part of the interview when he verbally invoked his Miranda rights during the interview. Rule 4.7 governs the recording of custodial interrogations.

         The circuit court held a suppression hearing on 4 May 2015. Tony Haley, a narcotics investigator with the Arkansas State Police, testified that on 1 May 2014, he used confidential informant Bruce Hurley to make a controlled buy of methamphetamine. He explained that he had known Hurley for approximately ten years, that Hurley had an extensive criminal history, and that in exchange for assisting the police, Hurley would not be charged with two counts of delivery of methamphetamine. Haley testified that he had been familiar with Millsap for five or six years and that Hurley was supposed to purchase four ounces of methamphetamine from Millsap for $3600. Haley explained that the transaction was scheduled to occur at Hurley's residence on 1 May 2014 and that on the afternoon of May 1, he met with Hurley at his residence, searched Hurley's person and residence for controlled substances and found none, and then listened to Hurley make telephone contact with Millsap. Once Millsap was on his way to the residence, Haley equipped Hurley with an electronic-monitoring device, set up a video recorder inside Hurley's residence, and gave Hurley $3600 in buy money. Haley then hid in an abandoned car in the front yard and observed the residence.

          Haley watched Millsap and a female, identified as Christy Hamilton, arrive at Hurley's residence. Haley stated that Millsap and Hamilton were in the residence less than thirty minutes, and then they, along with Hurley, left in Millsap's vehicle. Hurley texted Haley and told him that the deal had not yet taken place and that they were going down the road to look at a trailer house that Millsap was interested in buying. After approximately one hour, the three of them returned and went back into Hurley's residence. After another hour, Millsap and Hamilton left the residence. Haley then entered the residence, confirmed with Hurley that the purchase had taken place, and retrieved approximately two ounces of methamphetamine from Hurley. Haley then gave the order to nearby officers to stop Millsap's vehicle and arrest him. Other officers

Page 562

picked up Haley, and they proceeded to the Russellville DTF office. Haley testified that he arrived at the office at approximately 1:15 a.m. on May 2; Deputy Noyes with the Pope County Sheriff's Office brought Millsap in and escorted him to an interview room soon after.

         Haley stated that Millsap was in the interview room approximately five minutes before he and Agent Chad Stephenson went into the room. Haley said that he told Millsap what he was charged with and that the officers wanted to speak to him, and that he advised Millsap of his Miranda rights. Haley explained that he read the Miranda -rights form to Millsap and that Millsap acknowledged and understood his rights. Millsap initialed the Miranda -rights form and signed a waiver of rights, which was introduced as State's Exhibit 1. Haley stated that the interview room was set up so that interviews are recorded and that the recorder was on that night. The recording system had only been operational for a couple of months, and only a few interviews had been conducted since the recording system's installation. Haley explained that after Millsap had signed the Miranda waiver of rights, he asked if the interview was being recorded, and Haley confirmed that it was. According to Haley, Millsap then stated, " If you will turn it off, I will talk to you." Haley asked Agent Stephenson to turn off the recorder, which he did, and Haley then proceeded to question Millsap about the drugs that had been found in his vehicle. Haley said that Millsap took ownership of the drugs and said that he was selling drugs " to support [his] habit." Millsap then told Haley about other individuals from whom Millsap could purchase a large amount of methamphetamine.

         Haley stated that Millsap was forty-eight years old, very intelligent, and familiar with the legal system. He explained that Millsap had previous convictions for possession of a controlled substance, delivery of a controlled substance, drug paraphernalia, and retaliation against a witness. Haley denied making any threats or promises to Millsap.

         Haley also explained that in preparing this case for prosecution, he attempted to recover the recording of Millsap's interview, up to the point where he asked that the recorder be turned off, but the recording was not there. On cross-examination, he confirmed that all verbal communications between himself and Millsap, including his explanation of Millsap's Miranda rights and Millsap's request to turn off the recorder, had been erased. He also testified that he was aware that Hamilton was Hurley's ex-wife. Haley explained that Hurley was not a " good citizen" but that was why he took steps to eliminate the opportunity for Hurley to lie to him. In response to the question of whether Hurley might have motive to set up Millsap, Haley stated, " Anything is possible." He also explained that the video recorder inside Hurley's residence did not function properly and acknowledged that he could not see what had occurred inside the residence. He also acknowledged that in the audio recording of the controlled buy, the words " drugs" ...

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