{
  "id": 1672610,
  "name": "Tim FOLEY v. STATE of Arkansas",
  "name_abbreviation": "Foley v. State",
  "decision_date": "1978-04-24",
  "docket_number": "CR 77-221",
  "first_page": "278",
  "last_page": "280",
  "citations": [
    {
      "type": "official",
      "cite": "263 Ark. 278"
    },
    {
      "type": "parallel",
      "cite": "565 S.W.2d 128"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "257 Ark. 103",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8717931
      ],
      "weight": 2,
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/ark/257/0103-01"
      ]
    },
    {
      "cite": "353 U.S. 53",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6159521
      ],
      "year": 1957,
      "opinion_index": 0,
      "case_paths": [
        "/us/353/0053-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:2b1ea4f86fd0e706",
    "word_count": 536
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  "last_updated": "2023-07-14T19:12:30.639178+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Harris, G.J., and Fugleman and Horr, JJ."
    ],
    "parties": [
      "Tim FOLEY v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nThe appellant was found guilty of having unlawfully possessed and sold a controlled substance, phencycladine (which is used by veterinarians for tranquilizing horses). The jury returned a verdict of guilty and fixed Foley\u2019s punishment at imprisonment for 5 years and a S3,000 fine.\nAccording to the State\u2019s proof an undercover officer, Gaylon Hutchinson, and a police informer, Steven Howerton, acted together in purchasing the drug from the appellant, for $60. Hutchinson testified at the trial, but Howerton did not appear as a witness. The appellant\u2019s principal argument for reversal is that he was entitled either to a dismissal of the charge or to a continuance, because the prosecution did not produce Howerton as a witness at the trial or make him available for the taking of a pretrial deposition.\nThe appellant, in making this argument, relies upon cases holding that in certain circumstances the prosecution must disclose the identity of a confidential informer, so .\u2019that the accused may be confronted by the witnesses against him. Roviaro v. United States, 353 U.S. 53 (1957); Hooper v. State, 257 Ark. 103, 514 S.W. 2d 394 (1974). In this case, however, the missing witness, Howerton, was not an unidentified confidental informer. Quite the opposite, he was the defendant Foley\u2019s first cousin and contemporary; the two had lived together. According to the undisputed proof, the prosecution had no more control over Howerton than the defense had. The prosecutor testified that he had subpoenaed Howerton, that he desired Howerton\u2019s presence at the trial, and that he did not know Howerton\u2019s whereabouts. The defense, apart from stating that Howerton\u2019s testimony was vital to proof of entrapment, made no proffer of what Howerton\u2019s testimony would have been. There is no showing that the defense made any effort to subpoena Howerton when the opportunity was presented some time before the trial. There is simply no basis for saying that the prosecution somehow contrived to make Howerton unavailable as a witness. The argument is without merit.\nIt is also contended that the court should have allowed the defense to introduce a transcript of testimony given by Howerton in another trial, not involving this defendant. What the defense wanted to introduce was a statement by Howerton, in the course of his earlier testimony, that he and Foley did not have \u201ca marihuana commercial market going last year.\u201d We do not agree with the appellant\u2019s argument that the parties \u201cstipulated\u201d at a pretrial hearing that the transcript might be introduced at the trial. The trial judge merely ruled that the transcript might become a part of the record of the pretrial hearing. Furthermore, at the very most the exclusion was harmless error, because Howcrlon's admission that he did not have a marihuana commercial market going with Foley had no relevance to the charge that holey had sold pheneycladine, an accusation that docs not involve marihuana in any way.\nAffirmed.\nWe agree.\nHarris, G.J., and Fugleman and Horr, JJ.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Patterson & Welch, by: Morgan E. Welch, for appellant.",
      "Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Tim FOLEY v. STATE of Arkansas\nCR 77-221\n565 S.W. 2d 128\nOpinion delivered April 24, 1978\n(Division I)\n[Rehearing denied May 30, 1978.]\nPatterson & Welch, by: Morgan E. Welch, for appellant.\nBill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0278-01",
  "first_page_order": 304,
  "last_page_order": 306
}