Harmon v. State

2020 Ark. 217

600 S.W.3d 586

Rodney HARMON, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-1057

Supreme Court of Arkansas.

Opinion Delivered: May 28, 2020

Rehearing Denied July 23, 2020

Jeff Rosenzweig, for appellant.

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

ROBIN F. WYNNE, Associate Justice

Rodney Harmon was convicted of various drug and drug-related offenses and sentenced to an aggregate term of forty years’ imprisonment. On appeal, Harmon argues that the trial court erred by (1) refusing to order the State to obtain a video recording of the search of Harmon's home and to identify the filmmakers; (2) denying Harmon's request for a continuance to obtain the video and identify the filmmakers; (3) granting the State's motion in limine to exclude testimony regarding the filmmakers’ presence; (4) giving a nonmodel jury instruction on the methamphetamine-trafficking charge; and (5) allowing the State to play a recording of a controlled drug buy through an informant during the penalty phase of the trial. We affirm and vacate the opinion of the court of appeals.

I. Background

In September 2015, officers of the United States Drug Enforcement Agency, the Twentieth Judicial District Drug Task Force, and the Faulkner County Sheriff's Office executed a warrant for the search of Harmon's home. They found more than six pounds of methamphetamine, multiple firearms and ammunition, baggies, scales, and cash. An HBO documentary film crew was also present at the search under an agreement with law enforcement. The crew, which consisted of Craig and Brent Renaud and a camera operator, was working on a documentary called Meth Storm , which later aired on HBO. The filmmakers did not participate in the search, nor did they include footage of the search in the film. They were not included as witnesses in the report of the search given to prosecutors. The film's credits thanked the judge and deputy prosecuting attorney who handled Harmon's case.

For more than a year after the search took place, the prosecutor was unaware of the presence of the filmmakers. When she learned of their presence in January 2017, she contacted defense counsel, stating that she did not have any of the footage but providing contact information for Craig Renaud. Days later, Harmon moved for a continuance. At a hearing on the motion, Harmon argued that the filmmakers could be agents of the State. He argued that the footage could be relevant and subject to disclosure, and that he might want to file an amended motion to suppress, based on the contents of the footage. The prosecutor said that the State did not have the HBO footage and that she had unsuccessfully tried to contact HBO to obtain it. She also said she had given defense counsel the information she had. The trial court granted the continuance.

During the next several months, Harmon unsuccessfully sought the footage and the identities of the filmmakers present at the search. The prosecutor gave defense counsel additional contact information for the HBO legal department and DEA personnel who may have approved the presence of the film crew. About a month before trial, the trial court denied Harmon's request for an order requiring the State to obtain the video but issued an order to "whomever shall be in possession and/or ownership" of the video to provide it. On the first day of trial, the trial court denied Harmon's motion for a continuance until the video was obtained and people present identified. The court granted the State's motion in limine to prohibit mention of the filmmakers’ presence at the search. After the court granted the State's motion, Harmon proffered testimony from LeAnn Bakr, the DEA agent present at the search, that a previously unidentified camera operator named "Cole" was present at the search. Bakr also testified that she chose not to include the filmmakers as witnesses in her search-warrant report. Johnny Sowell of the drug task force testified that, although he did not write the report, he would not have listed the filmmakers as witnesses if he had.

Before trial, the State moved to use a nonmodel jury instruction on the methamphetamine-trafficking charge. The State proffered a jury instruction that added a series of factors for the jury to consider on "purpose to deliver," pulled from the model instruction for a lesser-included offense. Harmon proffered the model instruction. Over Harmon's objection, the court gave the nonmodel instruction. The jury convicted Harmon 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 phase of the trial, the State moved to introduce recordings of drug purchases from Harmon allegedly made by Shannon Daniels, a confidential informant who was not present at trial. Over Harmon's objection that the evidence was more prejudicial than probative, the trial court allowed the evidence. Harmon was sentenced to an aggregate term of forty years’ imprisonment.

Harmon timely appealed his convictions. On December 4, 2019, the court of appeals affirmed in part and reversed in part. Harmon v. State , 2019 Ark. App. 572, 591 S.W.3d 347. We granted Harmon's petition for review. When we grant a petition for review, we treat the appeal as if it had originally been filed in this court. Stone v. Washington Reg'l Med. Ctr. , 2017 Ark. 90, at 4, 515 S.W.3d 104, 107.

II. Points on Appeal

A. HBO Footage

For his first point on appeal, Harmon argues that the trial court abused its discretion by refusing to order the State to obtain the HBO video footage of the search of Harmon's home and to identify the filmmakers present. Harmon acknowledges that the State does not have an affirmative duty under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to produce evidence it does not have. But he contends that under Rules 17.1 and 17.4 of the Arkansas Rules of Criminal Procedure, the State was obligated to obtain the footage and the identities of the filmmakers. Rule 17.1(c) provides in relevant part that "[t]he prosecuting attorney shall, upon timely request, disclose and permit inspection, testing, copying, and photocopying of any relevant material regarding (i) any specific searches and seizures." Rule 17.4(a) provides that "[t]he 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."

In arguing that it was the State's responsibility to provide the video, Harmon contends that the HBO filmmakers were state actors or agents of the state because they were present at the behest of law enforcement. We review rulings regarding alleged violations of discovery rules for abuse of discretion. Hicks v. State , 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000). Harmon relies on Wilson v. Layne , 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), in which the United States Supreme Court held that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant. Harmon argues that because the filmmakers were state actors or agents, the State had an obligation to obtain the video and identify who was present at the search.

Harmon does not provide convincing authority to support his contention that the filmmakers were state actors or state agents. The filmmakers were more than mere bystanders; they were present at the invitation of law enforcement. But that does not make them state actors or agents. Bakr and Sowell testified that the filmmakers did not participate in the search. Wilson is not on point. Any possible Fourth Amendment claim Harmon may have against law enforcement under Wilson stemming from the presence of the filmmakers at the search is distinct from the State's discovery obligation to obtain the video and identify all individuals present.

Harmon cites a series of cases for the proposition that information held by the police is imputed to the prosecution. In Williams v. State , 267 Ark. 527, 593 S.W.2d 8 (1980), the defendant made an incriminating statement in the presence of a police officer. The prosecutor learned of the statement the evening before trial but did not disclose it to the defense until after voir dire the next day. We concluded that because the defendant made the statement in the police officer's presence, the officer's knowledge of the statement was imputed to the prosecution. Id. at 531, 593 S.W.2d at 10. Likewise, in Lewis v. State , the State called a witness whom the prosecutor had learned about the morning of the trial. Because the witness had given crucial information to the police, we concluded that information was imputed to the prosecution. 286 Ark. 372, 375, 691 S.W. 2d 864, 865 (1985). Harman argues that because law enforcement knew about the presence of filmmakers during the search, that knowledge is imputed to the prosecution, which had a duty to disclose the footage under Rule 17. We disagree.

While we recognize that information held by the police is imputed to the prosecution, in this case the police did not possess the footage and did not take statements from the filmmakers. The State did not call the filmmakers as witnesses or introduce the footage into evidence. Plus, the prosecutor disclosed the existence of the footage and contact information for the filmmakers more than a year before trial.

Harmon also argues that the presence of the filmmakers at the search of his home is analogous to the presence of witnesses at the taking of a custodial statement. We have held that the State must produce all witnesses present at the taking of a custodial statement or explain their absence, Foreman v. State , 328...