Court of Appeals of Arkansas, Divisions I, III, IV
Rehearing Denied January 15, 2020
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[Copyrighted Material Omitted]
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APPEAL
FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-15-702],
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Jeff
Rosenzweig, for appellant.
Leslie
Rutledge, Atty Gen., by: Christian Harris, Asst Atty Gen.,
for appellee.
OPINION
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 Harmons home; (2)
by denying the defenses request for a continuance; (3) by
granting the States motion in limine to exclude testimony
regarding HBO documentary filmmakers who may have filmed the
search of Harmons 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
Harmons home in Vilonia on September 17, 2015. Officers of
the Twentieth Judicial District Drug Task Force, the Faulkner
County Sheriffs 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
Harmons home was not in the aired documentary, but the
credits for the documentary thanked the judge and the deputy
prosecuting
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attorney who handled Harmons 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 crews 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
HBOs 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 Harmons request for an order requiring
the prosecution to obtain and provide it, rejecting Harmons
argument that the producers were State actors at the time of
the search. The court also denied Harmons motion for a
continuance of the trial until the video was obtained and all
persons present were identified. The court further granted
the prosecutions motion in limine to forbid mention of the
fact that HBO personnel were present at the search. Following
the courts 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 States 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
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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 courts 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. ONeal v. State,
356 Ark. 674, 683, 158 S.W.3d 175, 181 (2004).
Harmons first point on appeal is a challenge to the courts
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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (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 Amendments 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 ones 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
witnesss prior testimony to be admitted when the defendant
could not cross-examine the witness. 380 U.S. 400, 404, 85
S.Ct. 1065, 13 L.Ed.2d 923 (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,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Harmon asserts that his
due-process rights were violated because the State was
obligated to provide the video as exculpatory evidence.
Harmons reliance on Brady is misplaced because he
has not established an obligation to produce evidence that
the prosecution never possessed.
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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');">378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908
(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 Harmons invitation to
hold that searches of ones 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
Barrows 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 ...