ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

RODNEY STIDHAM

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-531

April 25, 2001

APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, WESTERN DISTRICT

[NO. CR99-38]

HON. ALAN DAVID EPLEY,

CIRCUIT JUDGE

REVERSED AND REMANDED

The appellant in this criminal case was charged with possession of methamphetamine with intent to deliver, possession of LSD with intent to deliver, and possession of drug paraphernalia based on events that occurred on July 18 and 19, 1998. The information was amended on January 26, 1999, to add additional charges (possession of methamphetamine, another count of possession of drug paraphernalia, and fleeing) arising out of conduct that occurred on August 29, 1998. The information was amended a third time on September 9, 1999, to charge appellant as a habitual offender. The court granted appellant's pretrial motion to sever the offenses alleged to have been committed on August 29, 1998, from the other charges. Although the severed charges were set for a separate trial, the trial judge read

the amended information including the severed charges and the habitual offender charges to the jury during voir dire. Appellant's motions for mistrial were denied, he was convicted of possession of methamphetamine with intent to deliver, possession of LSD with intent to deliver, and possession of drug paraphernalia, and sentenced as a habitual offender to fifty-five years in the Arkansas Department of Correction. This appeal followed.

Appellant contends that the trial court erred in denying his motion for mistrial after reading the severed offenses and habitual offender charge to the jury during voir dire. We agree. The case of Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984), is directly on point. There the supreme court said that:

Alva Donald Allard was convicted of aggravated robbery of the Town and Country Motel, which is south of Rogers, Arkansas. He was sentenced to 40 years imprisonment.

His conviction must be reversed because the clerk of the court read to the jury the original indictment which, in addition to the charge for aggravated robbery, included two counts of theft by receiving. This was at the beginning of the trial, and the appellant moved immediately for a mistrial, which the court should have granted because there was no way this jury could hear the case and remove from its mind the fact that the appellant was also charged with two counts of theft by receiving. The trial judge tried to admonish the jury and cure the error, but it is not the sort of error that can be so cured. He could not tell the jury it was a false statement, because it was not - the charges were pending. He could only point out that this trial was on an aggravated robbery charge. From the beginning, this defendant was not clothed with one of the constitutional benefits afforded all defendants in a criminal case, a right to a fair and impartial jury.

In Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), we were presented with a similar problem. The defendants hadentered pleas of guilty to part of the charges in an indictment and not guilty to others. The prosecuting attorney was allowed to read that part of the charge to which the defendants had pleaded guilty. We held this was reversible error, as it destroyed the impartiality of the jury and denied the defendant due process of law. We have consistently reversed cases in which other charges or convictions were improperly brought to the attention of the jury. Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984). In two other Arkansas cases we held that the trial judge had not abused his discretion in denying a mistrial when testimony as to other offenses was introduced. However, in those cases the testimony was invited by the defense. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983).

Allard v. State, supra, 283 Ark. at 317-18, 675 S.W.2d at 830. As in Allard, the attempt to cure the error by admonishment in the present case was ineffective because "it is not the sort of error that can be so cured." Furthermore, despite the State's argument to the contrary, appellant's objection was timely. He brought the matter to the trial court's attention immediately and asked for a mistrial after the trial court's unsuccessful attempt to cure the error by limiting instruction. This is comparable to the time that the objection was made in Allard, and compares favorably to the circumstances in Benton v. State, 41 Ark. App. 167, 850 S.W.2d 36 (1993). Finally, although the State appears to be correct in its assertion that no objection was made to the reading of the habitual offender charge, this does not matter because the reading of the severed fleeing charge was itself sufficient to mandate that a mistrial be granted under Allard.

We briefly discuss the other issues raised by appellant because they may recur on remand. Appellant asserts that the trial court erred in denying his motion to suppressevidence obtained following the stop of his vehicle, asserting that there was no probable cause for the stop and that the stop was in any event pretextual. In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. McDaniel v. State, 65 Ark. App. 41, 985 S.W.2d 320 (1999).

In the present case, there was evidence that Greg Lester, an investigator for the Carroll County Sheriff's Department, observed appellant driving a pickup truck on July 18, 1998. Officer Lester had seen an NCIC printout approximately a week beforehand that indicated that appellant's driver's license had been suspended. Officer Lester stopped appellant's vehicle and asked appellant to present his license. Appellant said he had left it at home. Officer Lester obtained from appellant his full name and date of birth, and a recheck of the database confirmed that appellant's driver's license was in fact suspended. Appellant was arrested for driving on a suspended license and, during a subsequent inventory search of his vehicle, officers discovered methamphetamine, LSD, and drug paraphernalia.

A law enforcement officer may make a warrantless arrest of a person when the officer has reasonable or probable cause to believe has violated the law in the officer's presence. Ark. R. Crim. P. 4.1(a)(iii). Probable cause is determined by the officer's knowledge at the time of the arrest. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). An officer's mere suspicion or even strong reason to suspect that an offense was committed is not enough to establish probable cause. Mounts v. State, 48 Ark. App. 1, 888S.W.2d 321 (1994). However, the officer at the time of the arrest is not required to have enough proof to sustain a conviction in order to have probable cause to make a warrantless arrest, but need only have reasonable, trustworthy information sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense. Id. We think that Officer Lester's knowledge that appellant's driver's license had been suspended as of one week prior to the stop, although of itself insufficient to sustain a conviction, was the sort of information that would warrant a prudent officer to believe that appellant was committing an offense.

Nor do we agree with appellant's argument that his arrest was pretextual, i.e., that the custodial arrest would not have occurred had the arresting officer not been prompted by the ulterior motive of searching for evidence of other crimes. The ultimate question in such cases is whether a reasonable police officer would have effected a custodial arrest even had no ulterior motive been present, see State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), and we cannot say that it would be unreasonable for a police officer to arrest a driver who had not merely violated a traffic regulation, but who in fact had no authority to drive at all.

Finally, appellant contends that the trial court erred in admitting the testimony of chemists employed by the Arkansas State Crime Laboratory concerning the chemical analysis of the substances found in appellant's vehicle. Specifically, he argues that the State failed to lay a proper foundation for this testimony by showing that tests underlying the testimony were scientifically valid. We find no error on this point. There was testimony that the chemists performed hundreds of such tests every month, that the tests that wereperformed were routine tests in research chemistry and the forensic field, and that these tests were used across the country and across the world. Given this testimony that these tests were routine in nature and generally embraced by the scientific community, we cannot say that the trial judge erred in permitting the chemists to testify concerning them. See Farm Bureau Mutual Insurance Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).

Reversed and remanded.

Vaught and Hart, JJ., agree.