{ "id": 6138813, "name": "Sherman WINTERS Jr. & Deanna Winters v. STATE of Arkansas", "name_abbreviation": "Winters v. State", "decision_date": "2005-01-05", "docket_number": "CACR 04-2", "first_page": "146", "last_page": "161", "citations": [ { "type": "official", "cite": "89 Ark. App. 146" }, { "type": "parallel", "cite": "201 S.W.3d 4" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "316 Ark. 731", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907764 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "736-37" }, { "page": "234" }, { "page": "736-37", "parenthetical": "quoting Mosley v. State, 313 Ark. 616, 622, 856 S.W.2d 623, 626 (1993)" }, { "page": "234", "parenthetical": "quoting Mosley v. State, 313 Ark. 616, 622, 856 S.W.2d 623, 626 (1993)" }, { "parenthetical": "where the affiant merely stated that \"during the investigation, affiant [Officer Stovall] received information from a person proven to be reliable on several occasions, who has observed cocaine being possessed, used, and sold at the above described residence" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0731-01" ] }, { "cite": "299 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888350 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0266-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "320 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451240 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "105" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ark/320/0100-01" ] }, { "cite": "340 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365309 ], "weight": 7, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0390-01" ] }, { "cite": "263 Ark. 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672717 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0536-01" ] }, { "cite": "318 Ark. 799", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455882 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "804" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0799-01" ] }, { "cite": "353 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155466 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0143-01" ] }, { "cite": "297 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891439 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0296-01" ] }, { "cite": "325 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369265 ], "weight": 4, "year": 1996, "pin_cites": [ { "parenthetical": "citing Ark. R. Crim. P. 13.1(b)" }, { "parenthetical": "citing Ark. R. Crim. P. 13.1(b)" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0110-01" ] }, { "cite": "344 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210142 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "citing Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (citing Ark. R. Crim. P. 13.1(b)). Factors to be considered in making such a determination include whether the informant's statements are (1) incriminating; (2" }, { "parenthetical": "citing Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (citing Ark. R. Crim. P. 13.1(b)). Factors to be considered in making such a determination include whether the informant's statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3" } ], "opinion_index": 0, "case_paths": [ "/ark/344/0589-01" ] }, { "cite": "314 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912740 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0165-01" ] }, { "cite": "167 F.3d 1207", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11602460 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/f3d/167/1207-01" ] }, { "cite": "117 S. Ct. 1853", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1997, "pin_cites": [ { "parenthetical": "citing Franks, 438 U.S. at 155-56" } ], "opinion_index": 0 }, { "cite": "326 Ark. 917", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12025548 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "950" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ark/326/0917-01" ] }, { "cite": "398 A.2d 783", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7988393 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/a2d/398/0783-01" ] }, { "cite": "338 Ark. 305", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243580 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0305-01" ] }, { "cite": "438 U.S. 154", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769234 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "155-56" } ], "opinion_index": 0, "case_paths": [ "/us/438/0154-01" ] }, { "cite": "313 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914619 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "622" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ark/313/0616-01" ] }, { "cite": "264 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668784 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "377" }, { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0376-01" ] }, { "cite": "302 Ark. 492", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884253 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0492-01" ] }, { "cite": "332 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377611 ], "weight": 6, "year": 1998, "pin_cites": [ { "parenthetical": "quoting Moore, 323 Ark. at 538, 915 S.W.2d at 289-90" }, { "parenthetical": "quoting Moore, 323 Ark. at 538, 915 S.W.2d at 289-90" }, { "page": "60" }, { "page": "361-62" } ], "opinion_index": 0, "case_paths": [ "/ark/332/0054-01" ] }, { "cite": "351 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158954 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/351/0406-01" ] }, { "cite": "344 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210142 ], "weight": 2, "year": 2001, "opinion_index": 1, "case_paths": [ "/ark/344/0589-01" ] } ], "analysis": { "cardinality": 1082, "char_count": 30164, "ocr_confidence": 0.764, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.4724312112405009 }, "sha256": "b213747ad25a46f8b373e036d3dc9fcf6261140805214a795db97a134e51e866", "simhash": "1:d76f16e1500e214f", "word_count": 4930 }, "last_updated": "2023-07-14T22:09:44.662329+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Crabtree, J., agrees. Griffen, J., concurs." ], "parties": [ "Sherman WINTERS Jr. & Deanna Winters v. STATE of Arkansas" ], "opinions": [ { "text": "Karen R. Baker, Judge.\nA jury in Poinsett County Circuit Court convicted appellant, Sherman Winters, Jr., of manufacturing a controlled substance, methamphetamine; possession of drug paraphernalia with intent to manufacture methamphetamine; possession of methamphetamine with intent to deliver; possession of pseudoephedrine with intent to manufacture methamphetamine; and simultaneous possession of drugs and firearms. He was sentenced to 360 months\u2019 imprisonment in the Arkansas Department of Correction. In a joint trial, appellant, Deanna Winters, was convicted of manufacturing methamphetamine; possession of methamphetamine; possession of pseudoephedrine with intent to manufacture methamphetamine; simultaneous possession of drags and a firearm; and possession of drug paraphernalia with intent to manufacture methamphetamine. She was sentenced to twenty years\u2019 imprisonment in the Arkansas Department of Correction. Both appellants have two arguments on appeal. First, they argue that the trial court erred in denying their motion to suppress evidence that was obtained from a search of their residence. Second, they argue that the trial court erred by failing to grant a mistrial based upon the State\u2019s comment on appellants\u2019 failure to testify. We disagree and affirm appellants\u2019 convictions.\nBecause appellants do not challenge the sufficiency of the evidence, an entire recitation of the facts is unnecessary. The relevant facts to address the issues on appeal involve the circumstances surrounding the issuance of a search warrant and the prosecutor\u2019s closing arguments. On December 24, 2002, Officer Bryant Richardson submitted an affidavit for a search warrant of Sherman and Deanna Winters\u2019 home to Poinsett County District Judge Steve Inboden. During the submission of the affidavit, Judge Inboden specifically questioned Officer Richardson about the reliability of the confidential informant. The following dialogue took place:\nInboden: Was she under arrest or under investigation; did she have any outstanding warrants or did she come to you to cut a deal for something else?\nRichardson: No, sir.\nInboden: Does she have any charges pending that you\u2019re aware of?\nRichardson: No, sir.\nInboden: Okay. And to your knowledge she had no motive other than to provide you with information that would result in the seizure of the contraband and, I presume, probably protection of the child as much as anything.\nRichardson: Yes, sir.\nInboden: Did she give you any reason why she came forward in particular?\nRichardson: No, sir.\nAt a hearing on the motion to suppress, Officer Richardson testified that on December 24, 2002, while he was at the detention center, he saw Sonya Henry, a woman he had known for fifteen years, and Ms. Henry indicated that she wanted to speak with him. That evening, Ms. Henry had been brought into the department on a warrant for her arrest. He testified that Ms. Henry had given him information on one other occasion, and that the information had been reliable. Ms. Henry immediately began talking to Officer Richardson, and he testified that he told her to \u201cwait until she was bonded out\u201d to finish giving him any information. He testified that Ms. Henry ultimately told him that she had personally witnessed an active drug lab at appellants\u2019 residence. He stated that, in the meantime, he did not contact Ms. Henry\u2019s probation officer regarding the situation.\nOn cross examination, Officer Richardson testified that he had personal knowledge that Ms. Henry was a \u201cmultiple felon\u201d and that she had been in and out of the penitentiary. He also testified on cross examination that he was aware that Ms. Henry was on probation; however, he stated that he did not think that Ms. Henry had a motive to lie. He admitted that he did not run a check of her record, which would have shown a felony warrant from Illinois; however, he did admit that he knew about it, he \u201cjust did not know about it at the time.\u201d Officer Richardson specifically stated on cross that \u201cI toldjudge Inboden that I was not aware of any criminal charges pending against her, and that I thought she had paid her bond. . . I knew there were charges pending against her and I told the judge something different.\u201d\nOfficer Gary Hefner testified at the hearing that he was called by the Trumann Police Department to pick up Ms. Henry on violation of the hot check law. He found her, pulled her over in her vehicle, and called Officer Wright to come and transport her to the detention center.\nIn Judge Inboden\u2019s testimony at the suppression hearing, he stated that Officer Richardson told him that this \u201cwasn\u2019t a deal where [the informant] was being charged or arrested or was under investigation.\u201d He stated that he specifically asked Officer Richardson if the informant was under arrest and the officer responded that she was not. Judge Inboden also testified that whether or not an informant is reliable assists him in making a decision as to whether or not he will issue the warrant and that credibility of an informant is crucial. \u201cIf someone presents me with something based on a person\u2019s knowledge who isn\u2019t credible or believable, I would be much less likely to grant the warrant.\u201d He stated that he \u201crelied on [Richardson\u2019s] testimony\u201d as to the informant\u2019s reliability and he \u201cacted accordingly\u201d in issuing the warrant.\nAt the conclusion of the suppression hearing, appellants\u2019 motions to suppress were denied. The trial judge then proceeded with the trial. During the State\u2019s closing arguments, the following dialogue took place:\nMs. Grayson: Thank you, Your Honor. Ladies and gentlemen, trust me. They brought in some pictures of the outside of that house, and showed these witnesses who were out there, the police officers.\nIf there had been any single thing about the layout of the master bedroom that would add to the, support the defendant\u2019s contention in this case, there would have been pictures of that, they would have shown them to the officers, the officers would have said yes, that\u2019s what the bedroom looked like, and you would have then to look like.\nIf there had been an witnesses available to testify, to support any of these \u2014\nMr. Dunlap: Objection, Your Honor, we need to approach the bench.\nThe Court: Mr. Dunlap, settle down.\nMr. Dunlap: May we approach,Your Honor?\nThe Court: Yes.\nMr. Dunlap: Your Honor, this is a Motion for a Directed Verdict. Ms. Grayson has just pointed out and argued to the jury that the defendants haven\u2019t testified, Your Honor, they\u2019ve put on no witnesses, that\u2019s a direct comment on their constitutional right to sit there and not testify. I\u2019m moving for a mistrial,Your Honor.\nThe Court: Ms. Grayson?\nMr. Hunter: I join in that objection. I agree wholeheartedly.\nMs. Grayson: Your Honor, I didn\u2019t even finish my sentence. I first asked them, first what I said was have there been any witnesses to support, or any photographs that would\u2019ve helped them, they would\u2019ve had them in.\nIf there\u2019d been anything to support the issues they raised such as the safe, which I said in my first part, that they would\u2019ve brought in those outside witnesses to say that. They had no intention of commenting on whether or not the defendants took the stand. I just didn\u2019t get finished.\nThe Court: I don\u2019t think that she has so commented at this point and time.\nMs. Grayson: But I\u2019ll completely steer clear of that \u2014\nThe Court: Motion for Mistrial is denied.\nMr. Hunter: May I add something to it briefly, Your Honor?\nThe Court: Yes.\nMr. Hunter: Your Honor, there is certainly now in the minds of the jurors something that\u2019s been said by the prosecutor in that statement where it\u2019s implied that the defendants haven\u2019t testified. Your Honor, I think there\u2019s case law at this point, and I can\u2019t cite it, but I would move for a mistrial based on that.\nThe Court: I heard your Motion earlier, and the prosecutor was not through with her question at the time. She was interrupted very vocally by Mr. Dunlap standing and the Court denies the Motion for Mistrial. Proceed with your closing.\nMs. Grayson: And again, I submit if there was a third bedroom, we didn\u2019t see any photographs, to have the witnesses identify that third bedroom. In fact, they said they was not. (sic) Mrs. Winters, when they came through that door, was standing there with the baby, the small child in her arms. We know the child\u2019s bedroom was back beyond that door, behind that wall. And we know there\u2019s a master bedroom. There\u2019s been nothing said about a third bedroom. So their attempt to portray this as ajunk room is just a red herring, they\u2019re trying to pull you off the line.\nMr. Dunlap: Another objection, Your Honor, we need to approach.\nThe Court: All right, you may.\nThe Court: All right.\nMr. Dunlap: She\u2019s done it again, Your Honor. I\u2019m moving for a mistrial at this time. She, there\u2019s been nothing said about a third bedroom, nothing, she\u2019s, she\u2019s commenting again on the defendant\u2019s rights to sit there and not testify, and with respect I\u2019m moving for a mistrial. That\u2019s the second time she did it.\nMs. Grayson: I specifically said that they could\u2019ve shown pictures to the officers who were present in the house.\nThe Court: Motion denied. I don\u2019t, the Court finds she did not comment on the failure of the defendants to testify.\nAt the conclusion of the trial, appellant Sherman Winters was convicted of manufacturing a controlled substance, methamphetamine; possession of drug paraphernalia with intent to manufacture methamphetamine; possession of methamphetamine with intent to deliver; possession of pseudoephedrine with intent to manufacture methamphetamine; and simultaneous possession of drugs and firearms. Appellant Deanna Winters was convicted of manufacturing methamphetamine; possession of methamphetamine; possession of pseudoephedrine with intent to manufacture methamphetamine; simultaneous possession of drugs and a firearm; and possession of drug paraphernalia with intent to manufacture methamphetamine. This appeal followed.\nAppellants\u2019 Motion to Suppress\nAppellants argue that the trial court erred in denying their motion to suppress evidence that was obtained from a search of their residence. Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Under [a totality-of-the-circumstances] analysis,\n[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the \u201cveracity\u201d and \u201cbasis of knowledge\u201d of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a \u201csubstantial basis for . . . concluding]\u201d that probable cause existed.\nLangford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998) (quoting Moore, 323 Ark. at 538, 915 S.W.2d at 289-90) (citing Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990)).\nAppellants assert that Officer Richardson made a conclusory statement as to the confidential informant\u2019s reliability. Our supreme court has stated that the affiant must state more than a mere conclusion and disclose enough information to show that the informant is worthy of belief. Atkins v. State, 264 Ark. 376, 572 S.W.2d 140 (1978). In Atkins:\nthe affiant in substance said: \u201cI know my informant is rehable, because he has been rehable in the past.\u201d That statement is a mere conclusion, providing the magistrate with no facts bearing upon the reliability of the unnamed informant. Thus the magistrate was at best depending upon the reliability of the affiant, not upon that of the informant. Where hearsay is an essential basis for the magistrate\u2019s conclusion, that short cut is not permissible.\nId. at 377, 572 S.W.2d at 141; but cf, Heard v. State, 316 Ark. 731, 736-37, 876 S.W.2d 231, 234 (1994) (holding that where the affidavit stated that \u201cduring this investigation, affiant [police officer] received information from a person proven to be reliable on several occasions, who has observed cocaine being possessed, used, and sold at the above described residence,\u201d the affidavit, when viewed as a whole, provided a substantial basis for cause to believe that the cocaine would be found at the house). Rule 13.1(b) of our Arkansas Rules of Criminal Procedure adopts the totality-of-the-circumstances analysis and provides in part:\nIf an affidavit or testimony is based in whole or part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant\u2019s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place.\nLangford, 332 Ark. at 60, 962 S.W.2d at 361-62. In addition, under Rule 13.1(b), failure to establish the bases of knowledge of the confidential informant is not a fatal defect \u201cif the affidavit viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in particular places.\u201d Langford, supra, (citing Heard v. State, 316 Ark. 731, 736-37, 876 S.W.2d 231, 234 (1994) (quoting Mosley v. State, 313 Ark. 616, 622, 856 S.W.2d 623, 626 (1993)).\nHere, Officer Richardson responded to Judge Inboden that he had personally used this informant once before. He specifically answered \u201cyes\u201d when asked if he had personal knowledge of other instances where the informant had provided accurate information to the Poinsett County Sheriffs Department. Officer Richardson also answered in the affirmative when asked if the informant was accurate when previously providing information to him. Unlike the court in Atkins, supra, we find the response given by Officer Richardson in this case to be more than a conclusory statement. See Heard, supra, (where the affiant merely stated that \u201cduring the investigation, affiant [Officer Stovall] received information from a person proven to be reliable on several occasions, who has observed cocaine being possessed, used, and sold at the above described residence).\nWe now turn to another portion of appellants\u2019 argument where they assert that there was a Franks violation in this case. Specifically, appellants assert that Officer Richardson \u201comitted relevant facts, made false statements or, at best, recklessly disregarded the truth.\u201d Franks v. Delaware, 438 U.S. 154 (1978), contains the proper analysis for determining whether false material, misleading information, or omissions render an affidavit in support of a search warrant fatally defective. See State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). In Franks, the Delaware Supreme Court refused to grant a suppression hearing where officers wrote the affidavit in the first person and affirmatively stated on three occasions that they had personally spoken to the witnesses, when in fact, they had not. Id. Upon remand from the United States Supreme Court, the Delaware Supreme Court excised the false information from the affidavit, and determined that the remaining portions were sufficient to establish probable cause such that it was not necessary to hold a suppression hearing on the issue. Franks v. State, 398 A.2d 783 (Del. 1979).\nOur supreme court has recognized that, under Franks, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement that was made knowingly, intentionally, or recklessly by the affiant; and (2) the false statement was necessary to a finding of probable cause. Langford, supra (citing Echols v. State, 326 Ark. 917, 950, 936 S.W.2d 509, 525 (1996), cert. denied, 117 S. Ct. 1853 (1997) (citing Franks, 438 U.S. at 155-56)). The supreme court further recognized that, if such findings are made, the Franks test requires that the false material should be excised and the remainder of the warrant examined to determine if probable cause still exists. Id. If the truthful portion of the warrant makes a sufficient showing of probable cause, the warrant will not be invalidated. Id. Similarly, when an officer omits facts from an affidavit, the evidence will be suppressed if the defendant establishes by a preponderance of the evidence that 1) the officer omitted facts knowingly and intentionally, or with reckless disregard, and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause. Rufus, supra (citing United States v. Buchanan, 167 F.3d 1207 (8th Cir. 1999); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993)).\nUnder the facts of the case at hand, appellants met their burden of proving that Officer Richardson knowingly made a false statement to Judge Inboden. Officer Richardson admitted at the hearing that he was untruthful when he told Judge Inboden that he was not aware of any criminal charges pending against the informant at the time. He knew at the time that there were criminal charges pending against her. Moreover, Officer Richardson testified at the suppression hearing that, while he did not inform Judge Inboden, he had personal knowledge that the informant was a \u201cmultiple felon,\u201d that he knew she had a criminal history spanning most of her life, including time in the penitentiary, and that she was out on probation at that time. Because we find that appellants have met the first prong of the Franks test, we must now determine if after excising the false statements and supplementing with the addition of any omitted material, the warrant is still sufficient to establish probable cause.\nWhen an affidavit for a search warrant is based, in whole, or in part, on hearsay, the affiant must set forth particular facts bearing on the informant\u2019s reliability and shall disclose, as far as practicable, the means by which the information was obtained. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001) (citing Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (citing Ark. R. Crim. P. 13.1(b)). Factors to be considered in making such a determination include whether the informant\u2019s statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Id. Additionally, facts showing that the informant has provided reliable information to law enforcement in the past may be considered in determining the informant\u2019s reliability in the present case. Id. (citing Langford, supra; Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988)). Failure to establish the bases of knowledge of the informant, however, is not a fatal defect if the affidavit viewed as a whole \u201cprovides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.\u201d Id. (citing Rule. 13.1(b); see also Langford, supra; Heard, supra).\nAfter removal of Officer Richardson\u2019s false statements and after the addition of material that he omitted, the information before Judge Inboden upon which he could base a finding of probable cause would essentially consist of the following:\n1. Officer Richardson\u2019s assertion that he had personally used Ms. Henry in the past when she had provided accurate information and that he was personally aware of other instances when she had provided rehable information to the Poinsett County Sheriffs Department.\n2. The fact that Ms. Henry was a multiple felon, had a lifelong criminal history, and currently was facing felony charges upon which she had been arrested that day prior to giving her statement to Officer Richardson.\n3. The fact that Ms. Henry had told Officer Richardson that she had that day personally observed a methamphetamine lab in operation at the Winters\u2019 residence and had identified other people who were present.\nWe conclude that under the second prong of the Franks test, this information is still sufficient to support a finding of probable cause to issue the search warrant. The statements that Ms. Henry made to Officer Richardson were clearly incriminating. This factor actually becomes more apparent with the addition of the information that Ms. Henry had a long criminal record, had pending charges against her and was on probation. In addition, the statements made to Officer Richardson were based upon personal observations of recent criminal activity. Specifically, Ms. Henry told Officer Richardson that she had recently witnessed an active drug lab at appellants\u2019 residence and that other people besides the appellants were present. We agree with appellants that Ms. Henry\u2019s statements were not corroborated by other information, and we are appalled by Officer Richardson\u2019s blatant lies to Judge Inboden; however, under a totality-of-the-circumstances test, we find that the affidavit, as amended, when viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure would be found at the Winters\u2019 residence. Therefore, we conclude the warrant in this case is sufficient to establish probable cause and the trial judge did not err in denying appellants\u2019 motion to suppress.\nMistrial\nSecond, appellants argue that the trial court erred by failing to grant a mistrial based upon the State\u2019s comment regarding appellants\u2019 failure to testify. A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). The circuit court has wide discretion in granting or denying a motion for mistrial, and, absent an abuse of that discretion, the circuit court\u2019s decision will not be disturbed on appeal. Id. The supreme court in Boyd v. State, 318 Ark. 799, 804, 889 S.W.2d 20, 22 (1994), explained that \u201c[t]he bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue.\u201d\nAn allegedly improper comment on the defendant\u2019s failure to testify usually occurs during the prosecutor\u2019s closing argument, when the evidence is closed and the defendant\u2019s opportunity to testify has passed. Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). When a prosecutor is alleged to have made an improper comment on a defendant\u2019s failure to testify, the appellate court reviews the statement in a two-step process. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). First, we determine whether the comment itself is an improper comment on the defendant\u2019s failure to testify. Id. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant\u2019s failure to testify, because this makes the defendant testify against himself in violation of the Fifth Amendment. Id. A veiled reference to the defendant\u2019s failure to testify is improper as well. Id. If we decide that the prosecutor\u2019s closing argument statement did refer to the defendant\u2019s decision not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id.\nIn Bradley v. State, 320 Ark. 100, 105, 896 S.W.2d 425, 428 (1995), the supreme court explained,\nIn Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court declared that references to a defendant\u2019s failure to testify violate the Fifth Amendment privilege against self-incrimination, but can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. Id. at 615. Practical application of the Chapman test involves excising the improper remarks and examining the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).\nHere, defense counsel moved for a mistrial following the prosecutor\u2019s statement that,\nThey brought in some pictures of the outside of that house, and showed these witnesses who were out there, the police officers. If there had been any single thing about the layout of the master bedroom that would add to the, support the defendant\u2019s contention in this case, there would have been pictures of that, they would have shown them to the officers, the officers would have said yes, that\u2019s what the bedroom looked like, and you would have then to look like. If there had been any, witnesses available to testify, to support any of these \u2014\nDefense counsel argued to the trial judge that \u201cthere is certainly now in the minds of the jurors something that\u2019s been said by the prosecutor in that statement where it\u2019s implied that the defendants haven\u2019t testified.\u201d However, the prosecutor responded that she had not been given the opportunity to finish her sentence. She explained that she was pointing out to the jury the lack of evidence provided by the defense. The trial judge denied the motion. The prosecutor continued with her statements, and again, defense counsel objected stating that the prosecutor had commented a second time on the defendants\u2019 failure to testify. The prosecutor responded that she was referring to the fact that the defense could have shown pictures of the house to the officers that were present during the search. The trial judge again denied the motion stating that \u201cthe Court finds that she did not comment on the failure of the defendants to testify.\u201d Based on our review of the prosecutor\u2019s comment in her closing statement, we find that the statement itself neither drew attention to nor was a comment on the defendants\u2019 failure to testify; instead, it was a comment on the state of the evidence presented to the court by appellants. See Jones, supra (holding that the prosecutor\u2019s comment was not a veiled reference to appellant\u2019s failure to testify; rather, the prosecutor was referring to appellant\u2019s lack of remorse, which was evidence, completely aside from appellant\u2019s own non-appearance on the witness stand, on which the prosecutor was free to comment.) Accordingly, we find that the trial court did not abuse its discretion in denying appellants\u2019 motion for a mistrial.\nBased on the foregoing, we affirm appellants\u2019 convictions.\nCrabtree, J., agrees. Griffen, J., concurs.", "type": "majority", "author": "Karen R. Baker, Judge." }, { "text": "Wendell L. Griffin, Judge,\nconcurring.\nLiars when they speak the truth are not believed. \u2014 Aristotle (384 B.C. - 322 B.C.)\nI write to make it clear that Officer Richardson\u2019s actions are not to be condoned, despite the outcome of this case. The statements in the affidavit, apart from the fact that the informant had been arrested and had charges pending, were sufficient to obtain the search warrant, but that in no way excuses the fact that Officer Richardson lied to a magistrate under oath. Whatever the testimony showed that day in court, it is clear that Officer Richardson was less than honest when talking to Judge Inboden. When the judge asked, \u201cWas she under arrest or under investigation; did she have any outstanding warrants or did she come to you to cut a deal for something else?\u201d, Richardson said \u201cno.\u201d When the judge asked, \u201cDoes she have any charges pending that you\u2019re aware of?\u201d, Richardson said \u201cno.\u201d And these answers were important to Judge Inboden when making his determination whether or not to issue the search warrant, as illustrated by his remarks at the suppression hearing:\nI was trying to establish if it were a self-serving accusation made by someone already on the ropes, who didn\u2019t care if the information were credible or not, as long as it got them off the hook. I was trying to figure out if the Cl\u2019s information could be trusted as reliable, or if it were just a fishing expedition. That helps me make the decision about whether I\u2019m going to issue the warrant. I think the credibility of someone who provides information for an affidavit is crucial; the whole point of having a sworn affidavit is to be able to rely on that information. If someone presents me with something based on a person\u2019s knowledge who isn\u2019t credible or believable, I would be much less likely to grant the warrant. Witnesses\u2019 credibility is always crucial. Without the Cl present, I have to rely on the affiant to the affidavit to the search warrant. In this case, it was Officer Richardson. I relied on his response on the tape being honest. I wanted to know if this person\u2019s feet were to the fire, if they were willing to say anything to get out of the mess they were in. I don\u2019t know to what extent this may have been the case. I relied on [Richardson\u2019s] testimony that this was not the case, and I acted accordingly.\nMagistrates grant warrants and courts review the validity of warrants based on the totality of the circumstances. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). One of the key components of that totality-of-circumstances review, particularly in cases where confidential informants are involved, is the credibility of both the informant and the affiant. When the party providing the information is not completely truthful, that provides more reason for a court to suppress any evidence pursuant to a bad warrant. A history of lying, as Officer Richardson now has, does even more to take away from the circumstances that would allow for the issuance of a search warrant. Even if Officer Richardson is honest in future dealings with judges and magistrates, his credibility and future ability to serve and protect the people of Poinsett County have suffered great damage. As Aristotle stated, even the truth is not believed when a liar declares it.", "type": "concurrence", "author": "Wendell L. Griffin, Judge," } ], "attorneys": [ "Will A. Kueter, Lohnes Tiner, and Brema J. Ryan, for appellants.", "Mike Beebe, Att\u2019y Gen., by: Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Sherman WINTERS Jr. & Deanna Winters v. STATE of Arkansas\nCACR 04-2\n201 S.W.3d 4\nCourt of Appeals of Arkansas\nOpinion delivered January 5, 2005\nWill A. Kueter, Lohnes Tiner, and Brema J. Ryan, for appellants.\nMike Beebe, Att\u2019y Gen., by: Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0146-01", "first_page_order": 172, "last_page_order": 187 }