ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

DAVID SPURGEON,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-462

JUNE 6, 2001

APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT,

NO. CR99-100, CR99-101 & CR99-103,

HON. TED C. CAPEHEART,

JUDGE

AFFIRMED

Appellant David Spurgeon was convicted of two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and simultaneous possession of drugs and firearms. He brings this appeal contending that the court committed reversible error when it overruled his objection to what he termed "eleventh-hour notice" of a State's witness. He also contends that the court erred by finding that his inculpatory statement was voluntarily given. We affirm.

After a search of his residence, Spurgeon was charged with two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and simultaneous possession of drugs and firearms. At the time of the search, Spurgeon gave a statement in which he stated, "All the smoke and little crank was mine and mine alone. My wife won't smoke or crank if you paid her. I don't sell drugs or get other people to." Hissignature appeared at the bottom of the statement.

Spurgeon filed a motion to suppress his statement arguing that he did not knowingly, intelligently, or voluntarily waive his Fifth Amendment right to remain silent; that he was not properly advised of his rights; and that he was not capable of understanding those rights and the consequences of his actions due to his age and emotional and mental state. In addition, he alleged that he had requested the presence of counsel before giving any statements, but was not allowed to consult with an attorney before giving the statements.

A hearing was held in which Dale Pierce, investigator for the South Central Drug Task Force, testified that he was present when a search warrant was executed at Spurgeon's home. The warrant was obtained after a confidential informant reported the presence of drugs at Spurgeon's residence. Pierce testified that when he and other officers arrived at the home, they knocked and when no one answered, they entered the home and began their search. He stated that they found weapons, marijuana, methamphetamine, syringes, and a spoon with some residue in it.

Pierce testified that while the search was taking place, Spurgeon returned to his home, and Pierce asked for his identification. Spurgeon stated that he lived at the residence. Pierce informed Spurgeon that they were searching the residence; he patted Spurgeon down and found a box of marijuana in Spurgeon's pocket. Pierce testified that Spurgeon was read his Miranda rights and that Spurgeon indicated that he understood them. Spurgeon then gave the above-quoted statement and signed it. While he was doing so, his wife arrived, and she also gave a statement.

Spurgeon testified at the hearing that he had signed a statement under duress after the officers threatened to arrest his wife. He admitted to signing the statement. He admitted to using marijuana, but he stated that he only admitted that the crank that was found in the house belonged to him so that the officers would not carry through with their threat to arrest his wife. He later denied having any crank at his house. He stated that the syringes found at his house were for his dogs and for other people who visited his house. Although, he said that he did not know what the people did with the needles when they visited.

Richard Wiggins, director of the South Central Drug Task Force, denied that anyone threatened Spurgeon by stating that his wife would be arrested and said that no one told Spurgeon what to say in his statement. The court ruled that the statement by Spurgeon was admissible and denied Spurgeon's motion to suppress.

During the jury trial, Spurgeon renewed his motion to suppress the statement, and the court again overruled his objection. Wiggins testified during the trial that Spurgeon was not forced to say anything while giving the statement. The statement was introduced at trial.

The second witness called at the jury trial was Kyla Herring. Just before Herring took the stand to testify, Spurgeon objected, stating that he did not have time to prepare for Herring's testimony or investigate because the State did not inform him that Herring would be called until the day before trial. The State maintained that it had provided Herring's name to Spurgeon in connection with another case involving Spurgeon. The court overruled the objection. Herring testified that she purchased marijuana from Spurgeon several times in the two weeks preceding Spurgeon's arrest. A jury found Spurgeon guilty, and he wassentenced to serve twenty years in the Arkansas Department of Correction.

Spurgeon's first point on appeal is that the court erred by overruling his objection to Kyla Herring's testimony, contending that he was prejudiced by her testimony because her name was not disclosed to him as a witness in this case until the day before the trial. He also contends that her testimony was more prejudicial than probative. Pursuant to Ark. R. Crim. P. 17.1, Spurgeon requested the names of the witnesses the State intended to call.

Rule 17.1 imposes a duty to disclose information in sufficient time to permit the defense to make beneficial use of it and that a failure to comply could be cured if the defense were granted a continuance or by recessing the trial until defendant's attorney could have an adequate interview with the witnesses. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). Some of the purposes of Rule 17.1 are to reduce delays during trial, to lead to conclusiveness and completeness in the disposition of criminal cases, to alleviate docket congestion, and to permit a more economical use of judicial resources. Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981). Disclosure in advance of the trial does not create any risks for the State inasmuch as any improper use of the disclosed material is virtually impossible. Nelson v. State, supra. When the State has committed a discovery violation under Ark. 17.1, the court must act. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979). When the State violates the pretrial discovery rule, the court has four options under Ark. R. Crim. P. 19.7. They are: (1) the evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance can be granted; and, (4) an appropriate order may be entered depending on the circumstances. Ark. R. Crim. P. 19.7; Nelson v. State, supra.

When determining whether a discovery violation has occurred, each case must be judged on its own. Lewis v. State, supra. The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose; absent a showing of prejudice, we will not reverse. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). If prejudice will result, the court must take appropriate action to remove the prejudice. Nelson v. State, supra. A party alleging error is required to demonstrate that prejudice will in fact exist. Smith v. State, 10 Ark. App. 390, 664 S.W.2d 505 (1984).

We agree with Spurgeon that the State violated the discovery rules in that it should have provided Kyla Herring's name as a potential witness earlier than the day before the trial. Failing to do so is a violation of the discovery rule set forth in Ark. R. Crim. P. 17.1. However, we hold that Spurgeon has not shown that he was prejudiced by Herring's testimony.

Herring's testimony was that she had bought marijuana from Spurgeon in the two weeks preceding his arrest. Spurgeon concedes that the State properly introduced evidence that he possessed twelve ounces of marijuana found at his home. Possession by any person of one ounce of marijuana shall create a rebuttable presumption that such person possesses the marijuana with intent to deliver. Ark. Code Ann. § 5-64-401 (Repl. 1997). Based upon this statute, he admits that the evidence was "ample to prove possession with intent to deliver." Herring's testimony that she purchased the marijuana did not prejudice Spurgeon because, as he concedes, he possessed enough marijuana for the presumption to exist thathe intended to sell it. Herring's testimony concerning her purchase of marijuana from Spurgeon was not necessary to prove the charge of possession of marijuana with intent to deliver.

Spurgeon also argues that Herring's testimony was more prejudicial than probative, an argument that he made to the court below. In response to this argument, the court instructed the jury that evidence of other crimes is not admissible to prove that Spurgeon acted in conformity therewith. The court stated, "He's charged with possession of marijuana with intent to deliver and evidence of other crimes is not admissible in that regard on the intent of the marijuana charge." Spurgeon argues that the cautionary instruction was not curative of any prejudice that was a result of Herring's testimony. We disagree. Trial courts have broad discretion in determining evidentiary issues. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). In view of the overwhelming proof, the prejudicial impact, if any, caused by Herring's testimony was insignificant. See Smith v. State, supra.

For Spurgeon's second point on appeal, he argues that the court erred in finding that his inculpatory statement was voluntarily given. He maintains that he was coerced into giving the statement in that the officers had threatened to arrest his wife if he did not "put something about methamphetamine in his statement."

When the voluntariness of a statement is at issue, we make an independent determination based upon the totality of the circumstances surrounding the statement. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). We will reverse a ruling of the trial court only if that ruling was clearly against the preponderance of the evidence. Id. Acustodial statement is presumed involuntary, and the burden is on the State to show that the statement was voluntarily given. Id. A confession based upon threats of harm is inadmissible. Id. In making a determination of whether a statement was voluntarily made, we will consider such factors as the length of the questioning, the advice or lack of advice on constitutional rights, the repeated or prolonged nature of questioning, and the use of mental or physical punishment. Id. Conflicts in testimony are for the trial court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id.

In the case at bar, there was conflicting testimony between Spurgeon and the officers taking his statement. Although Spurgeon argued that his statement was given under duress, there was testimony to the contrary; there was testimony that it was freely given. Wiggins, director of the South Central Drug Task Force, denied that anyone threatened Spurgeon and stated that no one forced Spurgeon to say anything when he gave his statement. Pierce testified that Spurgeon was read his Miranda rights and that Spurgeon indicated that he understood those rights. Based upon this testimony, we cannot say that the trial court's determination that the statement was voluntary was clearly against the preponderance of the evidence.

Affirmed.

Neal, J., agrees.

Pittman, J., concurs.