King v. State

2020 Ark. App. 532

614 S.W.3d 823

David KING, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-125

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: November 18, 2020

Erin W. Lewis, for appellant.

Leslie Rutledge, Att'y Gen., by: Christopher R. Warthen, Ass't Att'y Gen., for appellee.

MIKE MURPHY, Judge

Appellant David King was convicted by a Van Buren County jury of possession of methamphetamine with purpose to deliver, simultaneous possession of drugs and firearms, and possession of drug paraphernalia. The jury sentenced him to an aggregate term of twenty-eight years’ imprisonment. On appeal, King argues that the trial court erred by (1) refusing to order the State provide a video recording of the search of King's home; (2) ruling that the filmmakers were not state actors; (3) denying King's request for a continuance to obtain the video; (4) denying King's motion to suppress evidence stemming from the execution of the search warrant; and (5) declining to give the affirmative-defense instruction to the jury. We affirm.

In March 2016, the Twentieth Judicial Drug Task Force along with several other law enforcement officers executed a warrant for the search of King's home. An HBO film crew was also present at the search collecting footage for the documentary Meth Storm. Upon making entry into the house, King advised officers of a camouflage box located in his bedroom that he knew contained methamphetamine. As an officer bent down to retrieve the box, he located a handgun lying next to the box. Officers found over three grams of methamphetamine in the camouflage box along with a pay/owe book, a digital scale, half a straw with residue, a spoon, and multiple Ziplock bags. Officers located two more firearms in the master bedroom and other drug paraphernalia throughout the house. During the search, King made clear that his wife, Betty King, who was also present, knew nothing of the items being found.

King was charged as a habitual offender with the crimes of possession of methamphetamine or cocaine with purpose to deliver, simultaneous possession of drugs and firearms, and possession of drug paraphernalia. King claimed that the officers violated the terms and conditions of the search warrant by forcibly entering his home before the allotted time frame. To prove this claim, King filed a motion to compel discovery of the video recording filmed by the documentarians, but the court denied the motion finding that because the State was not in possession of the recording, it was not required to turn it over. After obtaining new counsel, King filed a motion to suppress the evidence procured during the search arguing that the search warrant in the case specified that the search was to be conducted between the hours of 6:00 a.m. and 8:00 p.m. and that despite the return of the warrant indicating that the search began at 6:03 a.m., King maintained that officers began the search several minutes before 6:00 a.m.

At the hearing on the motion, Agent Macy Brown, the lead agent who executed the search, testified that it began at 6:03 a.m. based on the time he saw on the dashcam clock in his vehicle when he pulled into the driveway. King and his wife testified that officers were inside the home when Agent Brown told everyone to stop what they were doing because they were early. Neither King nor his wife could provide a time when officers arrived or when Agent Brown made everyone stop. King maintained that the video recording would reveal the true time. At the conclusion of the hearing, the court denied the motion, again rejecting that the State had any responsibility for HBO's compliance with King's request for the recording, and it found that Agent Brown's testimony that the warrant was executed in a timely fashion was more credible than that put on by the defense. Upon the court's ruling, King moved for a continuance of the jury trial so that he may have another shot at trying to retrieve the footage from HBO. The court stated that the case had been going on since 2016 and asked him what had previously been done to retrieve the footage, but King was unsure. The court then denied the request.

A jury trial was conducted September 17, 2019. Charles Shaw, an investigator who was present during the execution of the search warrant, testified that he was the one who located the camouflage box and the gun in the bedroom, but he did not recall King's wife being present during the search. Agent Brown then testified about what was found during the search and that King's wife was, in fact, present. He also testified that after the search, he detained King, King waived his Miranda rights, and Agent Brown conducted an interview. He testified that during the interview, King admitted that he had just bought a thousand dollars’ worth of methamphetamine the day before and that he used between half and a quarter each day. Agent Brown testified that he did not find a thousand dollars’ worth of methamphetamine in the house and that in his experience, King's admitted use was a typical answer of a regular user. King moved for directed verdict at the close of the State's case in chief, arguing that the State failed to meet the elements of the simultaneous-possession-of-drugs-and-firearms charge. The trial court denied the motion. The defense rested without calling any witness and renewed its motion, which the court again denied. Prior to jury deliberation, King sought to have a jury instruction for the affirmative defense for the charge of simultaneous possession of drugs and firearms, arguing that the firearm was not readily available for use. Finding that there was no factual basis from which the jury could find that the firearm was not available for use because the gun was in close proximity with the drugs and paraphernalia in the bedroom, the court denied King's request. King was convicted and has now timely appealed.

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).

On appeal, King first argues that the trial court erred in ruling that the State was not responsible for providing him with the HBO video footage. King maintains that the video could lead to exculpatory evidence to support his motion to suppress that the officers executed the warrant outside the proper timeframe. King asserts that it was an abuse of discretion for the trial court to find that because the State did not possess the video that it did not have to provide the video. King asserts that, at a minimum, the trial court should have ordered the State to make diligent efforts to obtain the footage or information relating to the individuals who recorded the video. To support his argument, King states that the court made its finding in violation of Arkansas Rules of Criminal Procedure 17.1, 17.3, and 17.4 ; Barrow v. State , 2010 Ark. App. 589, 377 S.W.3d 481 ; and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In a recently decided case involving similar facts, the Arkansas Supreme Court held that the HBO filmmakers invited onto the scene of a search to film for their documentary Meth Storm were not law enforcement or acting as state agents. Harmon v. State , 2020 Ark. 217, 600 S.W.3d 586. The appellant in Harmon made similar arguments as King. There, the appellant acknowledged that the State did not have an affirmative duty under Brady , 373 U.S. 83, 83 S.Ct. 1194, to produce evidence it does not have, but he argued 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. Id. at 4, 600 S.W.3d at 590. 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 disagreeing with the appellant that Rule 17 does not require it to produce the video, our supreme court analogized the case to Barrow , 2010 Ark. App. 589, 377 S.W.3d 481. Specifically, the court explained:

In Barrow , there was evidence of the victims’ medical treatment at area hospitals that the State did not disclose to the defense. The court of appeals held that "[b]ecause the medical facilities are not law-enforcement agencies, the prosecutor had no obligation to obtain the records under Rule 17.3. In the absence of a showing ... that the State had access to the records, no discovery violation occurred." Id. at 15, 377 S.W.3d at 491.... [T]he evidence held by the filmmakers is akin to evidence held by the hospitals in Barrow .

Harmon , 2020 Ark. 217, at 7, 600 S.W.3d at 591. Harmon recognized that information held by the police is imputed to the prosecution, but because the State did not possess the video, there was no discovery violation. Id. , 600 S.W.3d at 591. King urges us to reconsider this holding, but we are without authority to overrule decisions made by the supreme court. Roark v. State , 46 Ark. App. 49, 55, 876 S.W.2d 596, 599 (1994).

Alternatively, King distinguishes his case from Harmon by noting that he specifically asked for the information pursuant to Rule 17.3, which was not argued by the appellant in Harmon . Arkansas Rule of Criminal Procedure 17.3 provides in part that "[t]he prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be...