{
  "id": 1882725,
  "name": "Johnny Lee ASHER v. STATE of Arkansas",
  "name_abbreviation": "Asher v. State",
  "decision_date": "1990-09-10",
  "docket_number": "CR 90-60",
  "first_page": "202",
  "last_page": "206",
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      "cite": "303 Ark. 202"
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      "cite": "795 S.W.2d 350"
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      "reporter": "Ark.",
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      "year": 1986,
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      "cite": "290 Ark. 503",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "cite": "479 U.S. 367",
      "category": "reporters:federal",
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        6216740
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  "last_updated": "2023-07-14T18:41:20.399175+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Johnny Lee ASHER v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Otis H. Turner, Justice.\nWhile operating a pick-up truck, the appellant suffered an epileptic seizure resulting in a single-vehicle accident. An employee of a nearby business witnessed the event and, after arranging for an ambulance, went to the vehicle to assist the appellant, who was semi-conscious and bleeding from a severe head laceration.\nEmergency medical personnel were at the scene when two police officers arrived. The appellant, who was in need of medical attention, was removed from the truck and taken by ambulance to the hospital.\nThe police officers conducted routine traffic-accident procedures and called a tow truck to remove the vehicle. Prior to the arrival of the tow truck, the officers conducted an inventory search of items located in the appellant\u2019s vehicle. In the course of the inventory, they found a plastic pill bottle stuffed with two baggies containing a brownish powder and a third baggie containing a white powder. Tests subsequently revealed the contents to be controlled substances. The officers also discovered a handgun and a shotgun in the vehicle. It was later determined that the appellant was a felon.\nThe appellant was charged with two counts of illegally possessing a firearm and two counts of possession of a controlled substance with intent to deliver. At trial, he was convicted, and the trial court followed the jury\u2019s recommendation of a sentence totaling 42 years imprisonment and a $40,000 fine.\nFor reversal, the appellant asserts three errors: first, that the search of the appellant\u2019s truck was accomplished illegally; second, that a previously undisclosed state\u2019s witness, Linda Kaiser, was improperly permitted to testify in rebuttal; and third, that the state\u2019s cross-examination of the appellant\u2019s wife, Marilyn Asher, was improperly conducted.\nWe find that none of the issues asserted by the appellant constitutes reversible error, and we therefore affirm the convictions.\nWith regard to point one \u2014 the search of the vehicle \u2014 the record clearly establishes that the appellant was removed from the scene in a semi-conscious state and that his condition was such that the officers made no attempt to talk to him at that time. The vehicle was removed from the accident site to be placed in the custody of the police or third parties. It is imperative under such circumstances that an inventory search be made to protect the owner\u2019s property and to insure against claims of lost, stolen, or vandalized property. The United States Supreme Court has recognized that these interests may be found to outweigh the individual\u2019s Fourth Amendment interests requiring a warrant prior to search. Colorado v. Bertine, 479 U.S. 367 (1987).\nThe facts here are somewhat analogous to those in Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), where the appellant was taken from the scene to a hospital following a gun battle with the police. In those circumstances we held that the search of Snell\u2019s vehicle was a proper inventory search.\nWe hold that in this instance the search of the appellant\u2019s vehicle was a proper inventory search authorized by A.R.Cr.P. Rule 12.6(b).\nThe appellant next contends that the state was improperly permitted to call an undisclosed eyewitness in rebuttal.\nThe state produced evidence that the handgun was found in a \u201cpouch\u201d located at the front of the seat on the driver\u2019s side. The appellant called a witness, Jack Prine, to prove that Prine had borrowed the appellant\u2019s vehicle and that the guns belonged to the witness and that he had, unknown to the appellant, left the firearms in the appellant\u2019s vehicle. The defense carefully examined both prosecution and defense witnesses in an attempt to show that the weapons were not in plain view and that the appellant could not have noticed them.\nOn rebuttal, the state called Linda Kaiser, an employee of a business located near the scene of the accident. The state had not listed Kaiser as a witness in its response to discovery and did not call her as a witness during the presentation of the prosecution\u2019s case-in-chief.\nKaiser testified that she went to the vehicle immediately following the accident in order to see if an ambulance was needed. She saw a handgun in plain view in the seat pouch on the driver\u2019s side. Clearly, this testimony could have been produced by the state in its case-in-chief. However, that fact alone does not preclude its introduction on rebuttal if the testimony serves to refute evidence raised by the defense. See Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).\nThe state proved the weapons were found in the defendant\u2019s possession \u2014 in his truck. The defense to this proof was a lack of knowledge of the presence of the weapons on the part of the accused. It was then proper rebuttal for the state to counter that defense by showing that the handgun was in plain view.\nIn Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986), the Arkansas Court of Appeals, upholding a felon-in-possession-of-a-firearm conviction, stated: \u201cThe evidence is sufficient if it is shown, by either direct or circumstantial evidence, that the appellant had the right to exercise control over the object.\u201d In arriving at its decision, the court of appeals properly analogized Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981), and Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), opinions discussing constructive possession of controlled substances.\nRebuttal witnesses need not be disclosed in response to discovery requests. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). The admission of the testimony of Linda Kaiser as a rebuttal witness under the circumstances of this case was not error.\nThe appellant\u2019s third point for reversal concerns the cross-examination of Marilyn Asher, the appellant\u2019s wife. This point gives cause for concern, but upon a close examination of the record, we conclude that, though the questioning was improper, there exists no reversible error.\nDuring cross-examination the following exchange occurred:\nQ: Let me ask you this. On October 3, 1988, were you in possession of a number of stolen guns in a fake wall in your bedroom?\nA: Not to my knowledge.\nQ: You didn\u2019t have any knowledge of that wall being there and those guns behind it?\nA: No.\nDEFENSE COUNSEL: I am going to object Your Honor and move for a mistrial. . .\nTHE COURT: Bailiff, would you take the jury out.. . .\nOut of the jury\u2019s hearing, defense counsel moved again for a mistrial on the grounds that the questions concerned criminal activity that allegedly occurred after the incident giving rise to the pending charges against the appellant and, further, that the questioning was inflammatory and prejudicial.\nNo rule of evidence permits this line of questioning, and the questions addressed to the witness were patently improper. However, to preserve a point for review, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. A.R.C.P. 36.21; Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). In this instance, that first opportunity occurred when the question was first asked and before it was answered.\nEven if the objection had been timely made, under the circumstances we do not believe that the defendant was prejudiced. The witness gave a negative answer to the question. An isolated and impermissible question, though technically error, does not necessarily dictate a reversal. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). See also Cox v. State, 264 Ark. 608, 573 S.W.2d 906 (1978). We will not reverse for error that does not affect the essential fairness of a trial. A litigant is entitled to a fair trial, not a perfect one. Scherrer v. State, 294 Ark. 237, 742 S.W.2d 877 (1988).\nAffirmed.",
        "type": "majority",
        "author": "Otis H. Turner, Justice."
      }
    ],
    "attorneys": [
      "Jennifer Morris Horan; for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Theodore Holder, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Johnny Lee ASHER v. STATE of Arkansas\nCR 90-60\n795 S.W.2d 350\nSupreme Court of Arkansas\nOpinion delivered September 10, 1990\n[Rehearing denied October 8, 1990.]\nJennifer Morris Horan; for appellant.\nSteve Clark, Att\u2019y Gen., by: Theodore Holder, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0202-01",
  "first_page_order": 240,
  "last_page_order": 244
}