Cluck v. State

209 S.W.3d 428, 91 Ark. App. 220

• Court: Court of Appeals of Arkansas
• Decided: June 8, 2005
• Docket: CA CR 04-710
• Status: Published

Opinions

Josephine Linker Hart, Judge.

Alan Ray Cluck was conJ victed by a Crawford County jury of possession of drug paraphernalia with intent to manufacture methamphetamine, and he was sentenced to 180 months in the Arkansas Department of Correction. He argues that the trial court erred when it: 1) allowed the State to introduce a witness as his parole officer for his prior convictions for conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to deliver when these facts had “minimal independent relevance” and the probative value did not substantially outweigh the danger of unfair prejudice pursuant to Arkansas Rules of Evidence 404(b) and 403; 2) allowed the State to call as a “rebuttal witness” the arresting officer from his previous trial where the witness was not disclosed and the witness was allowed to testify about items that were seized from his house in a prior, unrelated search in 1998, and because the evidence was unduly prejudicial and cumulative; 3) denied his motion for a directed verdict when the State’s evidence showed only the presence of common household items, there was no evidence that he intended to use the items to manufacture methamphetamine, several ingredients necessary to produce methamphetamine were not present, and there was no evidence that any methamphetamine was found at the residence; and 4) refused to give his proffered jury instructions concerning the definition of drug paraphernalia and a lesser-included offense of “attempted possession of drug paraphernalia with intent to manufacture methamphetamine.” We find merit in Cluck’s arguments concerning the evidentiary rulings, and we reverse and remand for a new trial.

Prior to trial, Cluck filed a motion in limine seeking to limit the testimony of his probation officer, Heather Douglas, who was one of the officers who had conducted a consensual search of his home and outbuildings. Cluck sought to exclude testimony that he was on parole, that his parole was revoked after the search, and that Douglas was a parole officer. The State argued that “the facts are so intertwined in this case that it would be impossible for me to put her on the stand and not ask her occupation. I believe the case law allows you to ask her, at least: Where do you work?” The trial court ruled that the State could inquire as to where Douglas worked.

The State then sought and received conditional permission to admit in its case-in-chief evidence of Cluck’s convictions for conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to deliver. The State contended that the evidence was “independently relevant” to refute Cluck’s defense. The trial court conditioned the use of the evidence on Cluck raising “ignorance and lack of knowledge, et cetera.”

In the State’s case-in-chief, Will Dawson, an investigator with the 12th and 21st Judicial Drug Task Forces testified that he received information that Cluck had purchased iodine from a farmers’ co-op. According to Dawson, he drove by Cluck’s residence to see if there were animals present, but found none. He later went to Cluck’s residence with two other officers, Heather Douglas and Suzanne Bobbitt, but did not find Cluck at home. At Douglas’s suggestion, the police looked for Cluck at his brother’s house and made contact with him. Dawson said he asked Cluck what the iodine was for, and Cluck told him he “bought it for a friend.” Dawson stated that Douglas had consent to search Cluck’s vehicle, and she discovered a bottle of hydrogen peroxide and a bottle of alcohol. Dawson then received Cluck’s consent to search his residence and outbuildings. Dawson sponsored into evidence photos of the items that were seized from Cluck’s vehicle and residence: a toluene can; a box of table salt and plastic jugs containing muriatic acid, drain cleaner, Red Devil lye, isopropyl alcohol; Equate allergy and sinus pills; a box of Dollar General cold and allergy pills; a short length of rubber tubing and a box of disposable PVC gloves; a used coffee filter; a bottle of hydrogen peroxide and a bottle of rubbing alcohol; and a syringe.

Dawson testified that the toluene can was empty, that a single coffee filter was found on top of the can, and that both items were found in Cluck’s garage. On cross-examination, Dawson admitted that he did not have the filter analyzed for drug residue. Dawson stated that the Red Devil lye, isopropyl alcohol, drain cleaner, and muriatic acid were found under the sink in Cluck’s kitchen, and that the salt was found on the counter. According to Dawson, the cold and allergy pills were found by Douglas, but he had discovered the tubing and disposable gloves. He also found the syringe, but he admitted that the State Crime Lab had not detected any drug residue in it. On cross examination, Dawson admitted that all the items seized had legitimate uses, and there was no evidence such as the presence of glassware or telltale odors that would indicate that a meth lab was present on the premises.

Before calling its next witness, Heather Douglas, the State secured the trial court’s permission for her to testify that she was Cluck’s probation officer and that Cluck was on probation for conspiracy to manufacture methamphetamine and for possession of methamphetamine with intent to deliver. She also confirmed that she had found a bottle of hydrogen peroxide and a bottle of rubbing alcohol in Cluck’s vehicle and the empty toluene can and the coffee filter in the garage.

The State then called Mitch Carolan, a narcotics investigator with the Arkansas State Police, as an “expert in the area of drug paraphernalia and the manufacturing process with respect to methamphetamine.” Carolan explained the two most common methods of manufacturing methamphetamine: the “red phosphorus method” which has as its “three main ingredients iodine crystals, pseudoephedrine, and red phosphorus; and the “anhydrous ammonia” method, which utilizes anhydrous ammonia, lithium metal, and pseudoephedrine. Carolan explained how the items seized from Cluck could be used in the manufacture of methamphetamine: the toluene to “draw your meth out of your cook;” the coffee filter to filter out the ephedrine or pseudoephedrine, to “pull red phosphorus,” dry out iodine crystals, or to salt-out the drugs; the isopropyl alcohol in the “pill soak;” the muriatic acid, drain cleaner, salt, and tubing along with aluminum foil to make an “HC1 generator;” the Red Devil lye to adjust the pH of the cook; the disposable gloves to protect the person making the meth from the chemicals; the pills as a source of pseudoephedrine; the hydrogen peroxide to produce iodine crystals; and the syringe commonly found in the course of methamphetamine investigations. On cross-examination, Carolan admitted that all of the items in question had legitimate uses, that there were many ingredients missing from each of the manufacturing methods that he described, and that a person would be unable to manufacture methamphetamine with the materials and ingredients that were seized by the police. However, on redirect, Carolan opined that it appeared “that someone is gathering the material to manufacture.” He also opined that the assemblage of materials suggested that someone was intending to use the “red phosphorus method” of manufacturing methamphetamine.

The State rested, and Cluck moved for a directed verdict, arguing that the absence of two of the main ingredients required for either of the manufacturing methods brought his case within the “purview” of our decision in Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002). He also asserted that there was no evidence that the pills that were seized contained pseudoephe-drine, no evidence of his intent to manufacture methamphetamine, that the items themselves were insufficient to make methamphetamine, and that there was no controlled substance and no residue found. The trial judge denied the motion, finding the quantity of the pills and the presence of the other materials enough to submit the question to the jury.

Cluck called his mother, Patricia King, to testify. She stated that Cluck had only lived in the house where the alleged contraband was seized for about a week prior to his arrest; that the alleged contraband was mostly common household chemicals left on the premises or used by Cluck to assist her with maintaining her rental property; that Cluck had allergies for which he took over-the-counter cold medications; and that Cluck did not even have a key to the garage. On cross-examination, King admitted that the garage door “may have been offits hinges,” but she reaffirmed her belief that someone could just pull the door open. She also rejected the State’s assertion that it had discovered a large amount of allergy medication, claiming that Cluck went through a box in a week. She stated that the muriatic acid was used by Cluck to clean the brick on one of her rental properties and that she herself had two bottles of drain cleaner, Red Devil lye and alcohol in her house. King, however, could not explain why Cluck had a syringe in his kitchen or why he had purchased iodine at the feed store.

Cluck’s father, Jim Dale Cluck, testified that he used iodine on his cattle ranch to help stop rock-foot disease. He also stated that his son ran iodine through water lines to medicate the chickens he raised. On cross examination, he asserted that Cluck had purchased iodine for him “once or twice,” and he believed that Cluck had last visited him in June or July, shortly before Cluck was arrested.

The State called Dawson in rebuttal, and he testified that he purchased identical pills to the ones that were seized at Cluck’s residence, but were not produced at trial. According to Dawson, he read the label of the pills he purchased, and they contained pseudoephedrine. On cross-examination, Dawson conceded that Cluck did not have more than the “legal amount” of ephedrine.

The State then called Sergeant Jerry Pittman of the Crawford County Sheriffs Department to testify about what he had seized from Cluck’s residence in 1998, which was evidence in Cluck’s conspiracy-to-manufacture-methamphetamine conviction. Over Cluck’s objection, Pittman testified that law enforcement officers seized a bottle of iodine crystals, a plate of three syringes, a used razor blade with residue on it, baggies with a dirty-white powder residue, three cans of Red Devil lye, a baggie containing tubing, some plastic PVC pipe, an open package of coffee filters, used coffee filters with red stains on them, a bottle of Südafed, a notebook containing methamphetamine recipes, drain cleaners, rock salt, a can of acetone, muriatic acid, red phosphorus, methamphetamine, pseudoephedrine, B-12 cutting agent, glassware, rubber gloves, paint thinner, marijuana, three coffee pots containing residue, and lithium. The State then rested and Cluck timely renewed his directed verdict motion.

Preservation of Cluck’s right against double jeopardy requires that we consider his challenge to the sufficiency of the evidence before we consider alleged trial error even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). We have often stated the test in determining the sufficiency of the evidence — whether there is substantial evidence to support the verdict. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Id. In making this determination, we consider evidence both properly and improperly admitted. Id. On review, this court neither weighs the evidence nor evaluates the credibility of witnesses. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003).

Cluck argues that the trial court erred when it denied his motion for a directed verdict because the State’s evidence showed only the presence of common household items, there was no evidence that he intended to use the items to manufacture methamphetamine, several ingredients necessary to produce methamphetamine were not present, and there was no evidence that any methamphetamine was found at the residence. He urges us to find this case analogous to Gilmore v. State, supra, where we reversed and dismissed a conviction for possession of drug paraphernalia with intent to manufacture when the appellant was found in possession of less than a complete compliment of ingredients to manufacture methamphetamine, all of the items seized had “legitimate uses,” and “the vast majority” of the factors listed in Arkansas Code Annotated section 5-64-101 (v) (Repl. 1997) were lacking. Cluck asserts that the presence of common household items, in the quantities and combination found, only give rise to a “suspicion” that someone may use the items to manufacture methamphetamine. We disagree.

We are mindful that this case is similar to Gilmore in that there obviously was an incomplete set of ingredients required to manufacture methamphetamine. It is also apparent that the “vast majority” of the fourteen factors listed in section 5-64-101(v) were not present in this case. As in Gilmore, there was expert testimony, in this case, however, as offered by Investigator Dawson, placed into evidence the opinion that the items seized at Cluck’s residence were “used in the manufacture of methamphetamine.” While it is true that Dawson also confirmed that methamphetamine could not be manufactured from the ingredients found on the scene, that portion of Dawson’s testimony is not considered by us under our standard of review. Cummings v. State, supra. Unlike Gilmore, however, in the instant case, there was also considerable evidence about Cluck’s prior conviction for conspiracy to manufacture methamphetamine.

Furthermore, as noted previously, when we review a case for the sufficiency of the evidence, we consider evidence both properly and improperly admitted. Sanford v. State, supra. Evidence of the latter variety abounded in this case. First, we note that Douglas was allowed to testify that she was Cluck’s probation officer. This testimony almost certainly predisposed the jury to believe that Cluck was inclined to engage in unlawful activity. Secondly, there was testimony that a syringe was found in Cluck’s kitchen. A syringe has no use in the manufacture of methamphetamine, and could be considered to be irrelevant, particularly in light of the fact that no methamphetamine residue was discovered on or in the syringe by the State crime lab. However, in this case, the trial court allowed Deputy Pittman to establish a link between the syringe and the manufacture of methamphetamine when he was allowed to testify over Cluck’s objection about Cluck’s 1998 arrest and subsequent conviction for conspiracy to manufacture methamphetamine. Furthermore, Pittman’s in-depth testimony concerning the material that was seized from Cluck’s residence in 1998 provided the jury with evidence that would enable it to find that Cluck acted in conformity with his prior bad act. While we are mindful that the admission of this evidence is not permissible under Rule 404(b) of the Arkansas Rules of Evidence, we must still give it maximum probative value under our sufficiency-of-the-evidence review. Id. Accordingly, we hold that the evidence was sufficient to allow a jury, without resorting to speculation or conjecture, to convict Cluck of possession of drug paraphernalia with intent to manufacture.

We next consider Cluck’s first and second points, which both concern allegations that the trial court made erroneous evidentiary rulings. For brevity’s sake, we will combine these arguments. Our standard of review is as follows: matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. See, e.g., Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999).

Cluck first contends that the trial court erred when it allowed the State to elicit testimony from Douglas that she was his parole officer for his prior convictions for conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to deliver when these facts had “minimal independent relevance” and the probative value did not substantially outweigh the danger of unfair prejudice pursuant to Arkansas Rules of Evidence 404(b) and 403. Cluck also argues that the trial court erred when it allowed the State to call as a “rebuttal witness” Deputy Pittman, the arresting officer from his previous trial where the witness was not disclosed and was allowed to testify about items that were seized from his house in a prior, unrelated search in 1998, because the evidence was unduly prejudicial and cumulative. We agree and hold that the decision to allow the admission of this evidence constituted reversible error.

Arkansas Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Moreover, even if the evidence is relevant under Rule 404(b), it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. Ark. R. Evid. 403. The balancing of probative value against unfair prejudice is a matter, in the first instance, for the trial court. See Parrish v. Newton, 298 Ark. 404, 768 S.W.2d 17 (1989).

As noted previously, the trial court allowed the State to elicit from Heather Douglas, one of the officers who searched Cluck’s residence, that she was Cluck’s parole officer. Cluck made a timely Arkansas Rules of Evidence 403/404(b) objection. At trial, the prosecutor argued that the testimony was admissible because “I believe that the case law allows you to ask [Douglas], at least: Where do you work?”

We hold that there was clearly no probative value in introducing the fact that Douglas was Cluck’s parole officer and that the prejudice is manifest. We believe that allowing her to so testify was tantamount to making Cluck appear in the court room in shackles or prison garb. Furthermore, contrary to the State’s bald assertion at trial that “the case law” permitted such a line of inquiry, our research has uncovered not a single case that stands for that proposition. Accordingly, we hold that allowing Douglas to so testify was an abuse of discretion.

We also hold that the trial court erred when it permitted the State to bolster its weak case with so called “rebuttal testimony” by Deputy Pittman about Cluck’s six-year-old conspiracy-to-manufacture-methamphetamine conviction. In the first place, we agree with Cluck that it was not true rebuttal testimony. In Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986), our supreme court held that a true rebuttal witness must “merely” respond to evidence presented by the defense. Here, the so-called rebuttal testimony did not “merely” respond to Cluck’s contention that the alleged contraband had legitimate uses, but delved into the details of a prior crime. We are mindful that Cluck’s prior convictions for drug-related offenses were relevant to prove that the alleged contraband was indeed drug paraphernalia, see Arkansas Code Annotated section 5-64-101(v), and therefore, evidence of those convictions could be introduced in the State’s case-in-chief. This fact, however, does not make it admissible in “rebuttal.” See Birchett v. State, supra.

Cluck further argues, and we agree, that “the sheer number of items to which Sergeant Pittman testified were extremely prejudicial, and should have been excluded.” Pittman’s testimony went well beyond the mere existence of a drug manufacturing conviction. We believe that Pittman’s detailed description of what he seized in 1998 had the effect of filling in the missing items so as to point a jury toward the inevitable conclusion that Cluck did not innocently possess the alleged contraband. Because methamphetamine is produced from common household items, we believe the importance of this testimony cannot be understated. It is clear to us that Pittman’s testimony was offered solely to show that Cluck was acting in conformity with his prior bad acts. That purpose is, of course, not permissible under Rule 404(b)¹. We hold that the decision to admit Pittman’s testimony concerning the 1998 search and seizure of Cluck’s residence was also an abuse of discretion. We therefore reverse and remand this case for a new trial because of these evidentiary errors.

Because it is likely to arise on retrial, we will briefly address Cluck’s fourth point in which he argues that the trial court erred when it refused to give his proffered jury instructions concerning the definition of drug paraphernalia and a lesser-included offense of “attempted possession of drug paraphernalia with intent to manufacture methamphetamine.” We find no error in the trial court’s rejection of Cluck’s proffered jury instructions.

The trial court instructed the jury with the definition of drug paraphernalia found in AMCI 6418.2. This instruction contains a notation stating that the statutory definition found in Arkansas Code Annotated section 5-64-101 (v) contains a list of examples and the statute should be reviewed in formulating an appropriate instruction for a particular case. Cluck’s proffered instruction, however, set out the entire list of items included in the statute, without the required tailoring. An instruction must be germane to the factual issues before the trial court’s refusal to give an instruction can be considered error. Stevens v. State, 246 Ark. 1200, 441 S.W.2d 451 (1969).²

We find no error in the trial court’s refusal to give Cluck’s second proffered instruction concerning a lesser-included offense of “attempted possession of drug paraphernalia with intent to manufacture methamphetamine.” While it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence, see Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000), it is not error to refuse an instruction where there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him on the lesser offense. See Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). Here, there is simply no rational basis for giving Cluck’s proffered lesser-included instruction on the offense of attempt to possess drug paraphernalia with the intent to manufacture methamphetamine.

The State attempted to convict Cluck for possession of drug paraphernalia with intent to manufacture methamphetamine despite the fact that the evidence established that there was present an incomplete set of ingredients and hardware necessary to manufacture the drug. In light of our holding in Gilmore v. State, supra, which completely embraces the fact that methamphetamine labs use common household items in the production of the drug, the outcome of this case necessarily turns on the issue of whether or not the collection of the alleged contraband could qualify as drug paraphernalia. Accordingly, there was no rational basis for giving Cluck’s proffered lesser-included instruction.

Reversed and remanded.

Bird, Glover, and Roaf, JJ., agree. Crabtree and Vaught, JJ., concur in part; dissent in part.

1 In his brief on appeal, Cluck incorporated the argument he made to the trial court by reproducing verbatim his argument to the trial judge concerning the State’s intention to introduce through Pittman’s testimony evidence supporting the 1998 conviction. Cluck argued that the State was “trying to bolster their case with prior bad acts,” and that it was a violation of “Rule 404.”

2 We note as well that the instruction that the trial court did give was also not sufficiently tailored to reflect the charges in this case. Cluck was charged with possession of drug paraphernalia with intent to manufacture methamphetamine, yet the instruction that was given to the jury defined drug paraphernalia in part as material used in inapplicable processes: ’’planting, propagating, cultivating, growing, harvesting.” The instruction also listed equipment used in “injecting, ingesting, inhaling, or otherwise introduce into the human body.” Clearly this category of paraphernalia had no connection to manufacturing. However, because a syringe was seized in this case, we cannot help but believe that this overly broad instruction could have influenced the outcome of the trial.