Cite as 2020 Ark. App. 379 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-08 09:33:41 Foxit PhantomPDF Version: 9.7.5 DIVISION II No. CR-19-874
Opinion Delivered: September 9, 2020 DALLAS QUINCY JACKSON APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION V. [NO. 60DR-19-821]
HONORABLE LEON JOHNSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
RAYMOND R. ABRAMSON, Judge
Following a May 30, 2019 bench trial, appellant Dallas Jackson was convicted of one
count of possession of a Schedule IV controlled substance (marijuana) with intent to deliver
(between twenty-five and one hundred pounds). His sole point on appeal is that the circuit
court erred when it denied his Arkansas Criminal Procedure Rule 19.7 motion. In his
motion for discovery sanctions, he contended that the evidence should be suppressed
because the State failed to preserve and provide the motor-video recording (MVR) of his
encounter with the police. We affirm.
The State filed a criminal information on February 25, 2019, charging Jackson with
one count of possession of between twenty-five and one hundred pounds of a Schedule IV
controlled substance, marijuana, with intent to deliver. The charge stemmed from Jackson’s
encounter with officers from the Little Rock Police Department on June 17, 2018, during which an officer saw a large bag of what he suspected—and what proved to be—marijuana
in Jackson’s lap, resulting in his arrest and search of his vehicle yielding over twenty-five
pounds of marijuana.
On March 19, 2019, Jackson filed a motion for discovery in which he requested, in
pertinent part, “[a]ll written or recorded statements and the substance of all oral statements
made by [Jackson,]” and “[a]ll tape recordings, still photographs, motion pictures and video
tape recordings made in connection with this cause” that were in the possession of the State.
The motion invoked, in pertinent part, Rules 17 and 19 of the Arkansas Rules of Criminal
Procedure.
On May 15, 2019, Jackson filed two motions. The first was the motion to suppress
the results of the searches of his person and vehicle. The second motion requested discovery
sanctions under Arkansas Criminal Procedure Rule 19.7. In the latter motion, Jackson
alleged that the officers had recorded their interactions with him on their unit’s MVR
system, but the State had failed or refused to provide the recording of the encounter to him.
The motion alleged that Jackson “initially filed a request for discovery on June 26,
2018[,]”—roughly nine months before the filing of the criminal information in circuit
court—“specifically requesting copies of any video/audio recordings depicting [Jackson].”
The motion contended that the MVR recording was material to Jackson’s defense. The
relief Jackson requested was to either (a) order the State to produce the MVR recording or
(b) “suppress all evidence obtained pursuant to the stop and detention of the Defendant.”
The circuit court addressed Jackson’s motion to suppress and his motion for discovery
sanctions during the bench trial on May 30, 2019. The circuit court heard testimony from
2 the law enforcement officers who arrested Jackson, the narcotics detective assigned to the
case, and an analyst from the Arkansas State Crime Laboratory. Jackson testified in his own
defense. The parties differed on their accounts of Jackson’s encounter with the police; the
officers testified that they did not activate their vehicle’s blue lights and did not block his
car, while Jackson testified that they had.
Testimony indicated that the officers had activated their MVR recorder just before
the encounter, and the recording would have shown some of the officers’ interaction with
Jackson, but the recording was no longer available because it had been recorded over 120
days after Jackson’s arrest. The prosecutor asked one of the officers for the video shortly
before trial, but the MVR recording was no longer available by that time. The officers
testified they never received a specific request to preserve the footage, which would have
come from the case detective. However, the detective testified that he verbally instructed
the officers to preserve the footage on the day of the arrest.
At trial, the circuit court denied Jackson’s motion for discovery sanctions and his
motion to suppress.1 The circuit court set a sentencing hearing for a later date.
On August 14, 2019, Jackson filed a motion for reconsideration of the denial of his
sanctions motion. In support of his motion, Jackson attached a letter written in April 2012
by Pulaski County Prosecuting Attorney Larry Jegley and addressed to the Little Rock
Police Department and other law enforcement agencies regarding MVR recordings. In the
letter, Jegley issued a blanket “request that all electronic data collected” by law enforcement,
1 In his motion for discovery sanctions, he also prays, in the alternative, the same relief he sought in his motion to suppress. Jackson does not appeal the denial of his suppression motion.
3 including MVRs, “be retained and kept available in all cases, including misdemeanors, until
the case is concluded in the court system.” Jackson’s motion argued that the existence of
the letter demonstrated bad faith on the part of the police with respect to the MVR
recording.
At the August 19 sentencing hearing, the circuit court heard Jackson’s
reconsideration motion, denied it, and sentenced him to seventy-two months’ probation
and a $1000 fine plus costs and fees. This appeal followed and is now properly before our
court.
Jackson’s sole point on appeal is that the circuit court erred when it denied his
motion, made under Arkansas Criminal Procedure Rule 19.7, requesting the suppression of
all the evidence against him when the State failed to preserve and provide the MVR of his
encounter with the police. The standard of review here is abuse of discretion. E.g., Duck v.
State, 2018 Ark. 267, at 3, 555 S.W.3d 872, 873. “Abuse of discretion is a high threshold
that does not simply require error in the trial court’s decision, but requires that the trial
court act improvidently, thoughtlessly, or without due consideration.” Threadgill v. State,
347 Ark. 986, 993, 69 S.W.3d 423, 428 (2002). Assessing witness credibility “is for the fact-
finder, and the circuit court performs this role during a bench trial.” Holmes v. State, 2019
Ark. App. 384, at 3, 586 S.W.3d 183, 185 (citation omitted). Our court will not second-
guess the credibility determinations of the fact-finder on appeal. See, e.g., Gonzales v. State,
2019 Ark. App. 600, at 15, 589 S.W.3d 505, 514.
Arkansas Criminal Procedure Rule 17.1 mandates that the prosecution shall disclose,
inter alia, “any written or recorded statements and the substance of any oral statements made
4 by the defendant[.]” Ark. R. Crim. P. 17.1 (2019). Rule 17.3 obligates the prosecuting
attorney, upon a timely request by the defendant, to make diligent good-faith efforts to
obtain discoverable material that is in the possession of other governmental personnel. Ark.
R. Crim. P. 17.3.
Rule 19.7 provides that in response to a violation of a discovery rule, the circuit
court may
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Cite as 2020 Ark. App. 379 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-08 09:33:41 Foxit PhantomPDF Version: 9.7.5 DIVISION II No. CR-19-874
Opinion Delivered: September 9, 2020 DALLAS QUINCY JACKSON APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION V. [NO. 60DR-19-821]
HONORABLE LEON JOHNSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
RAYMOND R. ABRAMSON, Judge
Following a May 30, 2019 bench trial, appellant Dallas Jackson was convicted of one
count of possession of a Schedule IV controlled substance (marijuana) with intent to deliver
(between twenty-five and one hundred pounds). His sole point on appeal is that the circuit
court erred when it denied his Arkansas Criminal Procedure Rule 19.7 motion. In his
motion for discovery sanctions, he contended that the evidence should be suppressed
because the State failed to preserve and provide the motor-video recording (MVR) of his
encounter with the police. We affirm.
The State filed a criminal information on February 25, 2019, charging Jackson with
one count of possession of between twenty-five and one hundred pounds of a Schedule IV
controlled substance, marijuana, with intent to deliver. The charge stemmed from Jackson’s
encounter with officers from the Little Rock Police Department on June 17, 2018, during which an officer saw a large bag of what he suspected—and what proved to be—marijuana
in Jackson’s lap, resulting in his arrest and search of his vehicle yielding over twenty-five
pounds of marijuana.
On March 19, 2019, Jackson filed a motion for discovery in which he requested, in
pertinent part, “[a]ll written or recorded statements and the substance of all oral statements
made by [Jackson,]” and “[a]ll tape recordings, still photographs, motion pictures and video
tape recordings made in connection with this cause” that were in the possession of the State.
The motion invoked, in pertinent part, Rules 17 and 19 of the Arkansas Rules of Criminal
Procedure.
On May 15, 2019, Jackson filed two motions. The first was the motion to suppress
the results of the searches of his person and vehicle. The second motion requested discovery
sanctions under Arkansas Criminal Procedure Rule 19.7. In the latter motion, Jackson
alleged that the officers had recorded their interactions with him on their unit’s MVR
system, but the State had failed or refused to provide the recording of the encounter to him.
The motion alleged that Jackson “initially filed a request for discovery on June 26,
2018[,]”—roughly nine months before the filing of the criminal information in circuit
court—“specifically requesting copies of any video/audio recordings depicting [Jackson].”
The motion contended that the MVR recording was material to Jackson’s defense. The
relief Jackson requested was to either (a) order the State to produce the MVR recording or
(b) “suppress all evidence obtained pursuant to the stop and detention of the Defendant.”
The circuit court addressed Jackson’s motion to suppress and his motion for discovery
sanctions during the bench trial on May 30, 2019. The circuit court heard testimony from
2 the law enforcement officers who arrested Jackson, the narcotics detective assigned to the
case, and an analyst from the Arkansas State Crime Laboratory. Jackson testified in his own
defense. The parties differed on their accounts of Jackson’s encounter with the police; the
officers testified that they did not activate their vehicle’s blue lights and did not block his
car, while Jackson testified that they had.
Testimony indicated that the officers had activated their MVR recorder just before
the encounter, and the recording would have shown some of the officers’ interaction with
Jackson, but the recording was no longer available because it had been recorded over 120
days after Jackson’s arrest. The prosecutor asked one of the officers for the video shortly
before trial, but the MVR recording was no longer available by that time. The officers
testified they never received a specific request to preserve the footage, which would have
come from the case detective. However, the detective testified that he verbally instructed
the officers to preserve the footage on the day of the arrest.
At trial, the circuit court denied Jackson’s motion for discovery sanctions and his
motion to suppress.1 The circuit court set a sentencing hearing for a later date.
On August 14, 2019, Jackson filed a motion for reconsideration of the denial of his
sanctions motion. In support of his motion, Jackson attached a letter written in April 2012
by Pulaski County Prosecuting Attorney Larry Jegley and addressed to the Little Rock
Police Department and other law enforcement agencies regarding MVR recordings. In the
letter, Jegley issued a blanket “request that all electronic data collected” by law enforcement,
1 In his motion for discovery sanctions, he also prays, in the alternative, the same relief he sought in his motion to suppress. Jackson does not appeal the denial of his suppression motion.
3 including MVRs, “be retained and kept available in all cases, including misdemeanors, until
the case is concluded in the court system.” Jackson’s motion argued that the existence of
the letter demonstrated bad faith on the part of the police with respect to the MVR
recording.
At the August 19 sentencing hearing, the circuit court heard Jackson’s
reconsideration motion, denied it, and sentenced him to seventy-two months’ probation
and a $1000 fine plus costs and fees. This appeal followed and is now properly before our
court.
Jackson’s sole point on appeal is that the circuit court erred when it denied his
motion, made under Arkansas Criminal Procedure Rule 19.7, requesting the suppression of
all the evidence against him when the State failed to preserve and provide the MVR of his
encounter with the police. The standard of review here is abuse of discretion. E.g., Duck v.
State, 2018 Ark. 267, at 3, 555 S.W.3d 872, 873. “Abuse of discretion is a high threshold
that does not simply require error in the trial court’s decision, but requires that the trial
court act improvidently, thoughtlessly, or without due consideration.” Threadgill v. State,
347 Ark. 986, 993, 69 S.W.3d 423, 428 (2002). Assessing witness credibility “is for the fact-
finder, and the circuit court performs this role during a bench trial.” Holmes v. State, 2019
Ark. App. 384, at 3, 586 S.W.3d 183, 185 (citation omitted). Our court will not second-
guess the credibility determinations of the fact-finder on appeal. See, e.g., Gonzales v. State,
2019 Ark. App. 600, at 15, 589 S.W.3d 505, 514.
Arkansas Criminal Procedure Rule 17.1 mandates that the prosecution shall disclose,
inter alia, “any written or recorded statements and the substance of any oral statements made
4 by the defendant[.]” Ark. R. Crim. P. 17.1 (2019). Rule 17.3 obligates the prosecuting
attorney, upon a timely request by the defendant, to make diligent good-faith efforts to
obtain discoverable material that is in the possession of other governmental personnel. Ark.
R. Crim. P. 17.3.
Rule 19.7 provides that in response to a violation of a discovery rule, the circuit
court may
permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.
Ark. R. Crim P. 19.7.
The circuit court’s denial of Jackson’s sanctions motion came after it heard the
testimony of both the law-enforcement personnel who were assigned to his case and Jackson
himself and after hearing argument on the motion. We hold that the circuit court’s ruling
here was not made improvidently, thoughtlessly, or without due consideration. The circuit
court’s ruling is further supported by the fact that Jackson requested exclusion of all the
evidence against him, an extreme request that was tantamount to dismissal of the charges
against him. See, e.g., Snell v. State, 290 Ark. 503, 511, 721 S.W.2d 628, 633 (1986). That
the circuit court did not commit an abuse of discretion is also supported by the fact that it
afforded Jackson a full opportunity to cross-examine the officers. See, e.g., Turner v. State,
325 Ark. 237, 246, 926 S.W.2d 843, 848 (1996) (holding that the circuit court did not err
in denying a mistrial as a discovery sanction when the defendant had a full opportunity to
cross-examine the relevant witnesses).
5 The circuit court’s finding that Jackson failed to demonstrate bad faith on the part of
the State was based on its assessment of the witnesses’ credibility, which we will not reweigh
on appeal. See, e.g., Gonzales, 2019 Ark. App. 600, at 15, 589 S.W.3d at 514; Holmes, 2019
Ark. App. 384, at 3, 586 S.W.3d at 185. That finding of no bad faith further supports the
circuit court’s decision not to impose Jackson’s extreme sanction request to exclude all the
evidence against him. See Threadgill, 347 Ark. at 995, 69 S.W.3d at 429.
Jackson’s arguments to the contrary, which center on Vilayvanh v. State, 2012 Ark.
App. 561, are not persuasive. First, the court in Vilayvahn disapproved of a defendant’s
request for the most extreme remedy available to the defendant in the circumstances. 2012
Ark. App. 561, at 5. In that case, the remedy sought was a mistrial; here, Jackson seeks a
similarly extreme remedy in his motion for discovery sanctions, when he prays in the
alternative to suppress all evidence obtained pursuant to the stop and his detention, which
would be tantamount to dismissal.
Jackson relies on the discovery motion he filed in district court, arguing that the
motion was filed within the 120-day period before the MVR was deleted and put the State
on notice that he sought the video. However, our court is not in a position to evaluate the
particulars of that motion because Jackson failed to include it in the record on appeal. See,
e.g., Hall v. State, 2020 Ark. App. 135, at 5, 594 S.W.3d 175, 179 (“An appellant who seeks
relief in this court has the burden to bring up a sufficient record upon which to grant
relief.”).
6 Jackson’s next argument, that he was seized when the officers blocked his vehicle,
contends that the officer’s search was invalid. But Jackson did not appeal the circuit court’s
denial of his suppression motion, so the argument will not be considered here.
Finally, Jackson complains that he was obliged to testify in his own defense in order
to counter the officers’ testimony. However, his choice to testify on his own behalf does
not render the circuit court’s ruling an abuse of discretion. His complaint that “[i]n
reality[,]” a criminal defendant’s testimony in a bench trial does not “carry any weight
against two police officers” is also without merit. This is not a legal argument; Jackson cites
no authority in support of this claim, nor does he otherwise develop the issue. As such, we
will not consider it. See Britton v. State, 2014 Ark. 192, 433 S.W.3d 856.
We note that the circuit court found no bad faith on the part of the police in failing
to preserve the evidence, and he has not appealed that ruling. We cannot say that the circuit
court’s denial of Jackson’s motion for a discovery sanction that was tantamount to dismissal
of the charges against him was an abuse of discretion, and as such, we affirm.
Affirmed.
GRUBER, C.J., and KLAPPENBACH, J., agree.
The Cannon Law Firm, P.L.C., by: David R. Cannon, for appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.