Hunter v. State

970 S.W.2d 323, 62 Ark. App. 275, 1998 Ark. App. LEXIS 513
CourtCourt of Appeals of Arkansas
DecidedJune 24, 1998
DocketCA CR 97-1092
StatusPublished
Cited by4 cases

This text of 970 S.W.2d 323 (Hunter v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunter v. State, 970 S.W.2d 323, 62 Ark. App. 275, 1998 Ark. App. LEXIS 513 (Ark. Ct. App. 1998).

Opinions

Terry Crabtree, Judge.

Appellant James Hunter was convicted by a jury of driving while intoxicated, possession of a controlled substance, and resisting arrest. He was thereafter sentenced to a total of three years in the Mississippi County Detention Center. Appellant now appeals, raising three points for reversal. We affirm.

The events that led to appellant’s convictions occurred on October 5, 1995, when Blytheville police officer Danny Lackey was ordered to investigate a complaint about a pickup truck blocking the entrance to an apartment complex. When Officer Lackey arrived, he found appellant sitting in the truck with the engine running. As the officer approached, appellant turned off the truck, exited, and began cursing the officer. Appellant then removed a small off-white item about the size of a pencil eraser from his pocket and put it in his mouth. Officer Lackey testified that the substance resembled a piece of crack cocaine. The officer told appellant to spit it out, but appellant refused and the two began to struggle. The officer testified that he could smell intoxicants on appellant’s breath during the altercation.

After subduing and handcuffing appellant, Officer Lackey picked him up and saw a bag of what he thought was marijuana lying on the ground underneath appellant. The unidentified off-white substance that appellant had ingested was not recovered. Appellant was arrested for driving while intoxicated, refusing a breath test, possession of a controlled substance (marijuana), and resisting arrest.

Before trial, appellant’s counsel moved to suppress Officer Lackey’s testimony about appellant ingesting the off-white substance because (1) there was no evidence that the substance was an illegal drug, (2) it would be prejudicial to admit the testimony, and (3) the officer did not have probable cause to search or arrest appellant when the officer attempted to retrieve the substance. The trial court denied that motion because appellant’s action of ingesting the substance was part of the res gestae, and without the testimony the jury would not understand why the officer and appellant had struggled.

During the trial, there was an objection regarding the chain-of-custody of the bag of green, leafy material found under appellant. Neither the bag nor any other physical evidence was presented, but the trial court admitted a property receipt and a crime lab report that indicated that the bag had contained marijuana when it was recovered and tested. After the jury returned guilty verdicts on the DWI, resisting arrest, and possession charges, the trial court ruled that the possession of marijuana charge should not have gone to the jury because of the chain-of-custody issue. The court, therefore, granted appellant’s motion for a directed verdict with respect to the possession charge. However, the court stated that the initial evidentiary ruling had been correct.

Appellant first argues that the trial court erred in allowing Officer Lackey to testify about seeing appellant ingest the unidentified off-white substance. The trial court allowed the testimony as res gestae so the jury would have a full understanding of the sequence of events and why the scuffle ensued. In reviewing a trial court’s denial of a motion to suppress, this court makes an independent determination based upon the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Stewart v. State, 59 Ark. App. 77, 953 S.W.2d 599 (1997).

The trial court did not err in admitting the testimony as res gestae. Appellant was tried for possession of a bag of marijuana. That bag fell out of appellant’s clothing during the struggle with Officer Lackey. Without testimony as to why the officer struggled with appellant, the jury would have been left with significant unresolved questions. Moreover, appellant was tried for resisting arrest. All of the circumstances of a particular crime (here, resisting arrest) are part of the res gestae of the crime, and all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986).

Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. .They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute .... [Cjircumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae.

Id. at 241, 707 S.W.2d at 334. There was no error in admitting the testimony as res gestae.

Appellant also argues that the testimony should have been suppressed because Officer Lackey had no probable cause to seize appellant after seeing him ingest the off-white substance. Appellant contends that the officer had no reasonable suspicion of any crime, and that the officer began conducting an illegal search when he exerted force upon appellant.

In Brunson v. State, our supreme court stated:

The same standards govern reasonable cause or probable cause determinations, regardless of whether the question is the validity of an arrest or the validity of a search and seizure. The determination of probable cause is to be based on the factual and practical considerations of everyday life upon which reasonable and prudent persons act. In assessing the existence of probable cause, our review is liberal rather than strict. (Citations omitted.)

327 Ark. 567, 571, 940 S.W.2d 440, 441 (1997).

Rule 3.1 of the Rules of Criminal Procedure provides that a law enforcement officer lawfully present in any place may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony, if such action is reasonably necessary to determine the lawfulness of his conduct. A reasonable suspicion is one based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion. Ark. R. Crim. P. 2.

Officer Lackey testified that as he approached appellant to ask why he was blocking the driveway, appellant “jumped out of the vehicle and started using profanity and I could smell the odor of intoxicants. That’s when he reached in his pocket and put the object in his mouth and that’s when the scuffle occurred.” The officer stated that the substance was an offi-white object like a yellowish piece of gravel, that it was clearly not gum, and that “[bjeing the narcotics dog handler, I see a lot of that all the time. I could see his hand when he did it.

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Related

Porter v. State
120 S.W.3d 178 (Court of Appeals of Arkansas, 2003)
Hart v. State
987 S.W.2d 759 (Court of Appeals of Arkansas, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
970 S.W.2d 323, 62 Ark. App. 275, 1998 Ark. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-state-arkctapp-1998.