Court of Appeals of Arkansas, Divisions I, III, IV
FROM THE FAULKNER C O U NT Y C IRC U IT C O U R T [NO.
23CR-15-702] HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
D. VAUGHT, Judge
Harmon appeals his convictions by a Faulkner County Circuit
Court jury of trafficking methamphetamine within 1, 000 feet
of a school-bus stop, simultaneous possession of drugs and
firearms, possession of drug paraphernalia, and maintaining a
drug premises within 1, 000 feet of a school-bus stop. Harmon
was sentenced to an aggregate term of forty years'
imprisonment in the Arkansas Department of Correction
("ADC"). On appeal, he asserts that the circuit
court erred (1) by refusing to direct the State to obtain
possibly existing video of the search of Harmon's home;
(2) by denying the defense's request for a continuance;
(3) by granting the State's motion in limine to exclude
testimony regarding HBO documentary filmmakers who may have
filmed the search of Harmon's home; (4) in allowing a
nonmodel jury instruction on the trafficking charge; and (5)
by allowing the State to play a recording during the penalty
phase of the trial of Harmon making a controlled drug buy
through an informant who was not present to testify. We
affirm in part and reverse and remand in part.
charges arose from the execution of a search warrant for
Harmon's home in Vilonia on September 17, 2015. Officers
of the Twentieth Judicial District Drug Task Force, the
Faulkner County Sheriff's Office, and the United States
Drug Enforcement Agency conducted the search. An HBO
documentary film crew was present pursuant to an agreement
with law enforcement. The crew consisted of two
documentarians-the Renaud brothers-and a camera operator.
They were working on a documentary entitled Meth
Storm, which subsequently aired on the HBO network. The
filmmakers did not participate in the search but filmed it.
The search of Harmon's home was not in the aired
documentary, but the credits for the documentary thanked the
judge and the deputy prosecuting attorney who handled
presence of the film crew was unknown to the prosecutor for
more than a year after the search took place. On January 24,
2017, the prosecutor learned of the documentary and alerted
the defense to the film crew's presence at the search.
The prosecutor stated that she did not have any of the film
footage but provided contact information for one of the
documentarians who was present at the search, Craig Renaud.
January 30, Harmon filed a motion for a continuance on the
basis of this new information, which was granted. The court
held a hearing on February 3, at which defense counsel raised
the issue of whether the HBO film crew could be considered
agents of the State because they had been granted permission
to be there by the DEA and local officials. Counsel argued
that whatever footage might exist could be relevant and
subject to disclosure, and depending on the contents, the
defense might want to file an amended motion to suppress. The
prosecutor explained that the State did not possess any of
HBO's video footage, that she had contacted HBO to try to
obtain it, and that she had not been successful. She stated
that she had provided the defense with all the information
the succeeding months, Harmon sought both the video and the
identities of all people who were present at the search of
his home, but he was unable to obtain this evidence. The
circuit court issued an order to "whomever shall be in
possession and/or ownership" of the video, but the court
denied Harmon's request for an order requiring the
prosecution to obtain and provide it, rejecting Harmon's
argument that the producers were State actors at the time of
the search. The court also denied Harmon's motion for a
continuance of the trial until the video was obtained and all
persons present were identified. The court further granted
the prosecution's motion in limine to forbid mention of
the fact that HBO personnel were present at the search.
Following the court's ruling that Harmon could not
mention at trial the presence of the film crew at the search,
he proffered testimony of two officers regarding why they had
intentionally chosen not to list the film crew when writing
reports and documents about the search. The court also issued
an order for the benefit of the defense to the persons who
were in control of the recording requiring them to provide
this information, but the defense was not able to locate the
recording or even get in touch with the people who would have
had control of it.
12, 2018, the State filed a motion to use a non-AMI jury
instruction on the trafficking charge. The State proffered a
jury instruction that added a series of factors for the jury
to consider. This part of the modified instruction was pulled
from the model instruction for a different offense,
possession with purpose to deliver. The court allowed the
non-AMI jury instruction. Harmon proffered the standard AMI
instruction and objected to the State's request for a
was convicted of trafficking methamphetamine within 1, 000
feet of a school bus stop, simultaneous 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 portion of the trial, the
State moved to introduce video recordings of drug purchases
that Harmon allegedly made from a confidential informant,
Shannon Daniels, who was not present to testify. Harmon
objected, arguing that the evidence was more prejudicial than
probative, and the court overruled his objection. The jury
imposed an aggregate forty-year sentence.
of law, such as the interpretation of discovery rules found
in the Arkansas Rules of Criminal Procedure, are reviewed de
novo. Muhammad v. State, 67 Ark.App. 262, 265, 998
S.W.2d 763, 763 (1999). However, when we review a court's
rulings regarding alleged violations of the rules of
discovery, the standard of review is abuse of discretion.
Hicks v. State, 340 Ark. 605, 612, 12 S.W.3d 219,
223 (2000). The standard of review for denial of a
continuance is also abuse of discretion. Price v.
State, 365 Ark. 25, 33, 223 S.W.3d 817, 824 (2006).
Likewise, the standard of review for admission or rejection
of evidence is abuse of discretion. O'Neal v.
State, 356 Ark. 674, 683, 158 S.W.3d 175, 181 (2004).
first point on appeal is a challenge to the court's
denial of his request to require the prosecution to obtain
the HBO video footage of the search of his home and produce
it in response to his discovery requests. Harmon concedes
that the analysis on this issue hinges on whether the
documentary filmmakers should be deemed State actors, which
he describes as a "novel question." Indeed, Harmon
cites no authority for the assertion that documentary
filmmakers present during the search of a home are considered
State actors. The sum of his argument is that "[t]he
State cannot accept the benefit of the bargain with the
production company-i.e. the presumably good publicity-and
then disclaim the obligations going along with it. To have
any other rule would be to invite chaos and unaccountability
in law enforcement."
has cited a series of cases, none of which are directly on
point. Regarding whether the film crew could be considered
State actors, Harmon relies on Wilson v. Layne, 526
U.S. 603 (1999), in which the United States Supreme Court
established Fourth Amendment boundaries for ride-along film
crews, holding that while executing an arrest warrant on
private property, police who invite representatives of the
media to accompany them can be held in violation of the
Fourth Amendment's prohibition of unreasonable search and
seizure. Wilson is a Fourth-Amendment case that
deals with the added intrusion of having a film crew brought
into one's home during a search. Harmon has not alleged a
Fourth-Amendment violation, and Wilson simply does
not support his argument that the "good publicity"
generated by the HBO documentary caused the filmmakers to
rise to the level of State actors for discovery purposes.
also cites Pointer v. Texas, a confrontation-clause
case in which the Supreme Court held that it was
unconstitutional for the court to allow a transcript of a
witness's prior testimony to be admitted when the
defendant could not cross-examine the witness. 380 U.S. 400,
404 (1965). Again, this case is simply not on point because
the prosecution did not attempt to introduce any evidence
related to the HBO documentary.
further relies on Brady v. Maryland, in which the
United States Supreme Court held "that the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution." 373 U.S. 83, 87
(1963). Harmon asserts that his due-process rights were
violated because the State was obligated to provide the video
as exculpatory evidence. Harmon's reliance on
Brady is misplaced because he has not established an
obligation to produce evidence that the prosecution never
possessed. Moreover, the video was never demonstrated to be
evidence favorable to the accused, and the facts of this case
do not support the conclusion that this evidence was
suppressed. The State made numerous attempts to obtain the
evidence but, like the defense, was unable to do so.
next cites Foreman v. State, 328 Ark. 583, 590, 945
S.W.2d 926, 929-30 (1997), in which our supreme court recited
the standard for the necessity of producing witnesses to a
Statements given by accused persons who are in police custody
are presumed to be involuntarily given; thus, the burden is
on the State to prove voluntariness. As a part of overcoming
that burden, the State must produce at a [Jackson v.]
Denno [378 U.S. 368 (1964)] hearing all of the persons
who were witnesses to the taking of the statement or explain
their absence. When the necessary witnesses are not produced,
and no satisfactory explanation of their absence is
forthcoming, we hold that evidence of the accused that his
statement was involuntarily given "stands
focuses on the requirement that the State must produce all
witnesses and likens the search of his home to a custodial
statement in order to invoke such a rule here.
Foreman is not on point to the issue before us in
the present appeal, and we decline Harmon's invitation to
hold that searches of one's home should be governed by
the same rules applicable to custodial statements.
most relevant precedent is Barrow v. State, 2010
Ark.App. 589, 377 S.W.3d 481, which does not warrant
reversal. Barrow was charged with sexual misconduct and
argued that the State violated discovery requirements by
failing to provide information concerning the victims'
medical treatment. Barrow argued that "the prosecutor
was in a close relationship with the victims by representing
their interests and also had a relationship with police
officers," both of whom possessed information that was
relevant to his defense, and that such information should be
imputed to the prosecution for discovery purposes.
Barrow, 2010 Ark.App. 589, at 12, 377 S.W.3d at
489-90. Our court held that the issue was not preserved;
however, we offered an alternative decision that the
"open file" policy meant that the defense had
access to any information the State had and that if
"appellant thought that the victims' medical records
might have assisted his defense, he could have conducted his
own investigation instead of solely relying on
discovery." Id. at 13, 377 S.W.3d at 490. The
most relevant holding in Barrow is the response to
Barrow's assertion that the medical records could have
provided exculpatory evidence to be used in
That argument presupposes that the State had access to and
knowledge of the records and their contents, which appellant
has failed to demonstrate. To the contrary, the prosecutor
informed the circuit court that the State did not possess or
have access to the victims' medical records. Because the
medical facilities are not law-enforcement agencies, the
prosecutor had no duty to obtain the records under Rule 17.3.
In the absence of a showing by appellant that the State had
access to the records, no discovery violation occurred.
Id. at 14, 15, 377 S.W.3d at 490. As in
Barrow, Harmon has failed to show that the State had
access to the HBO film, and without such a showing, there is
no discovery violation.
has not demonstrated that Arkansas Rules of Criminal
Procedure 17.1(c) and 17.4(a) are applicable here. Rule
17.1(c) sets forth that the prosecuting attorney shall, upon
timely request, disclose and permit inspection, testing,
copying, and photocopying of any relevant material regarding
any specific searches and seizures. The prosecuting attorney
did not have the "relevant material" regarding the
search and seizure to disclose or permit inspection of.
Moreover, there was testimony that when the prosecuting
attorney learned of the film crew's presence, she
contacted defense counsel and gave them all the information
17.4 provides that the 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. Rule 17.4 has no bearing on the instant case
because, again, the State did not possess any HBO footage to
Harmon has failed to cite any convincing authority to
establish that the prosecution had an affirmative duty to
obtain the video footage, his discovery-violation argument
fails. We find no reversible error on this point.
second point on appeal is a challenge to the court's
denial of his motion for a continuance. On the day of the
trial, Harmon moved for a continuance "based on the
inability to obtain the video and names and contact
information of the HBO personnel." Harmon argues that a
continuance to obtain this information and evidence was