Harmon v. State

          APPEAL 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

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          LARRY D. VAUGHT, Judge

         Rodney 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.

         The 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 Harmon's case.

         The 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.

         On 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 she had.

         Throughout 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.

         On June 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 non-AMI instruction.

         Harmon 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.

         Questions 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).

         Harmon's 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."

         Harmon 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.

         Harmon 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.

         Harmon 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.

         Harmon 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 custodial statement:

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 uncontradicted."

         Harmon 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.

         The 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 cross-examination:

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.

         Harmon 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 she had.

         Rule 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 disclose.

         Because 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.

         Harmon's 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 necessary ...