GUILTY AR - Beverly Carter, 49, Little Rock, 25 Sep 2014 - #13

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11/19
occurred concerning the were abouts [sic] or whether foul play is involved in the
disappearance of [the missing person]” because the victim had last been seen with
the defendant six days earlier.
The circuit court’s failure to apply that standard was erroneous and requires
correction so that future courts do not likewise hold that warrants listing a broad
category of items expected to be found constitute impermissible general warrants.
C. The circuit court erroneously failed to apply the good-faith exception from
United States v. Leon.
The circuit court also erred in rejecting the State’s alternative argument that
the evidence obtained from Lewis’s residence and the trunk of his car should not
be suppressed because the officers who obtained that evidence had acted in goodfaith
reliance on the search warrants issued by Judge Wayne Gruber. As above,
Lewis erroneously contends that this Court lacks jurisdiction to consider this issue
under Rule 3 because whether the good-faith exception applies is determined on a
case-by-case basis. See Cross-Appellee’s Brief, at C.A. 6.
Although this Court evaluates each issue independently under Rule 3(d), see
generally State v. Gray, 330 Ark. 364, 366-67, 955 S.W.2d 502, 503-04 (1997), the
State’s good-faith argument is not a separate issue on appeal. Rather, it is an
additional argument erroneously rejected by the circuit court that likewise requires
correction to ensure the correct interpretation of the law. See, e.g., State v. Tyson,
2012 Ark. 107, at 9-11, 388 S.W.3d 1, 6-8 (addressing merits of good-faith

12/19
alternative argument in State’s appeal from the grant of a motion to suppress);
State v. Kelley, 362 Ark. 636, 646-48, 210 S.W.3d 93, 99-101 (2005) (same). This
Court, therefore, should reach the State’s argument that the circuit court incorrectly
interpreted the law on general warrants and its alternative argument that the
officers relied in good faith on a judge’s decision to issue the warrants.
Under Leon, a defective search and seizure can be salvaged if the executing
officers operated in good-faith reliance on a judge’s decision to issue a warrant.
United States v. Leon, 468 U.S. 897, 922 (1984). That exception does not apply
where a warrant is “so facially deficient—i.e., in failing to particularize the place
to be searched or the things to be seized—that the executing officers cannot
reasonably presume it to be valid.” Id. at 923. But in determining whether officers
are acting in good faith, the only question is “whether there was an objectively
reasonable basis for the officers’ mistaken belief.” Massachusetts v. Sheppard,
468 U.S. 981, 988 (1984). Where an officer’s conduct is objectively reasonable
and largely error free, he or she is said to have acted in good faith and even though
“an error of constitutional dimensions may have been committed with respect to
the issuance of the warrant[,]” the results of the search will not be subject to
suppression. Id. at 990.
In rejecting the State’s good-faith argument here, the circuit court
erroneously focused on the fact that the language in the search warrants mirrored
 
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the language used in the affidavits to apply for the warrants. For instance, with
respect to the warrant to search Lewis’s residence, the circuit court found:

Investigator Warren created the affidavit and the warrant itself,
which mirrors the language in their affidavit, typos and all. To be
sure, the investigators were operating under the demands of their job
and the public pressure of a high-profile investigation, but to say that
they acted with such good faith as to come within the protection of
Leon strains credulity.

(Add. 74-75; R. 372-73). It made a similar determination with respect to the
warrant to search the trunk of Lewis’s car. (Add. 81-82; R. 379-80).
But far from “strain[ing] credulity,” the affidavits and warrants at issue
demonstrate that the officers objectively and reasonably believed that they were
being sufficiently specific given the circumstances surrounding Carter’s
disappearance. Indeed, the affidavits supporting the warrants detailed a clear link
between Lewis and Carter’s disappearance. For example, they explained, among
other things, that: 1) Lewis and the car he had just wrecked matched the
description of a man and vehicle seen at the location where Carter’s vehicle had
been found (R. 895-98, 903-06; Supp. Add. 2-5, 10-13); and 2) the cell phone in
Lewis’s possession at the time of his car accident had been used to communicate
with Carter prior to her disappearance. (R. 895-98, 903-06; Supp. Add. 2-5, 10-
13). Moreover, the officers limited the warrants to include only certain categories
of evidence “tending to demonstrate that a potential criminal offense may have
been committed related to the disappearance of Beverly Carter.” (R. 899, 907;

14/19
Supp. Add. 6, 14). And had the circuit court considered those facts and the
circumstances of this case—instead of merely focusing on linguistic similarities—
it could not have concluded that the officers had not acted in good faith.
Therefore, the Court should correct the circuit court’s erroneous rejection of the
State’s good-faith doctrine.
II. The circuit court erred in declining to apply the inevitable-discovery
doctrine to the evidence seized in the trunk of Lewis’s car.
A. This Court’s review is required to ensure that the inevitable-discovery
doctrine is properly applied in the future.
Lewis’s challenge to this Court’s jurisdiction over the second cross-appeal is
almost identical to his first—that the inventory-search issue is fact-bound and,
therefore, does not have widespread ramifications. And, as above, this Court
should reach this issue because a decision correcting the circuit court’s erroneous
interpretation of the inevitable-discovery doctrine will help ensure that doctrine is
correctly applied in the future.
B. This Court should hold that the circuit court erred in suppressing
incriminating evidence found in the trunk of Lewis’s car.
As the State pointed out in its initial briefing on this issue, the inevitablediscovery
doctrine provides that evidence that would otherwise be subject to
suppression due to illegal police activity may still be admissible if the State proves
by a preponderance of the evidence that the police would have inevitably
 
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discovered that evidence by lawful means. E.g., Newton v. State, 366 Ark. 587,
591, 237 S.W.3d 451, 454 (2006).
The State argued below that, pursuant to the Pulaski County Sheriff’s Office
(PCSO) policy, the trunk of Lewis’s car normally would have been subject to a
lawful, warrantless inventory search before it was towed to the police impound.
See United States v. Harris, 795 F.3d 820, 822-23 (8th Cir. 2015) (upholding
warrantless inventory search). This did not occur here because the officers
correctly anticipated that the trunk of Lewis’s car would contain important
evidence and—out of an abundance of caution—sought to obtain a warrant before
searching the trunk. As a result, Lewis’s car was removed from the highway
before an inventory search was completed, and the trunk was only searched after
the police had obtained a warrant. And as noted above, the circuit court later
erroneously (see supra at p. 8) determined that warrant was invalid and suppressed
the hair, tape, and blood discovered in the subsequent search of the trunk.
But even after Lewis’s car was removed to the police impound, it was still
subject to a warrantless inventory search that would have discovered those items.
See Colorado v. Bertine, 479 U.S. 367, 372-73 (1987); Ryan v. State, 303 Ark.
595, 600-01, 798 S.W.2d 679, 682-83 (1990). Indeed, even where officers suspect
that a car will contain evidence of a crime, an inventory search is still valid. See
United States v. Pappas, 452 F.3d 767, 771 (8th Cir. 2006) (“The police are not

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precluded from conducting inventory searches when they lawfully impound the
vehicle of an individual that they also happen to suspect is involved in illegal
activity.”). Nevertheless, the circuit court here reached a contrary conclusion on
the ground that Lewis’s trunk would not have normally been subject to an
inventory search after it was towed to an impound lot because it mistakenly
believed the policy goals underlying inventory searches—officer safety and to
protect an individual’s property—had already been achieved the moment it reached
the impound lot. (Add. 117; R. 429).
That conclusion—effectively a per se rule barring police from pausing an
inventory search and then resuming it after a car has been removed to an impound
lot—is contrary to federal and state precedent. For instance, contrary to the circuit
court’s conclusion that the goals of an inventory search are complete the moment a
car reaches an impound, Colorado v. Bertine holds that inventory searches are still
appropriate after a vehicle has been taken into police custody because the police
are still responsible for the property in their possession. 479 U.S. at 372-73.
3
And
that holding is far from surprising given that—where, as here, an inventory search
has not already been completed—even after a car reaches impound, officers still
___________
3
Lewis concedes that had the policy goals been incomplete at the time of the
tow, “then a subsequent search would have been permissible and the inevitablediscovery
doctrine would apply.” Cross-Appellee’s Brief, at C.A. 13.
 
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need to ensure that its contents do not present a danger and personal property does
not go awry. Moreover, contrary to the circuit court’s approach, Ryan v. State
concluded that the mere fact that an inventory search was suspended does not
render it constitutionally infirm. 303 Ark. at 600-01, 798 S.W.2d at 682-83.
Therefore, contrary to the circuit court’s conclusion, even without a warrant, the
contents of the trunk would have been subject to an inventory search and inevitably
discovered.
Moreover, by invalidating the search warrant and misapplying inevitablediscovery
case law, the circuit court has created a juxtaposition where officers
must choose between obtaining evidence solely through inventory searches or
delaying inventory searches and waiting for warrants that might later be
invalidated, through no fault of the police, without the saving protection of Leon
(see supra at pp. 6-9) or the inevitable-discovery doctrine. As such, under the
logic of the circuit court’s ruling, the police would be better off to inventory search
the entire vehicle from the beginning and never attempt to obtain a warrant.
Accordingly, this Court should declare error as to the suppression of evidence
found in the trunk of Lewis’s car.

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CONCLUSION
For the reasons stated and the authorities cited in this and the State’s initial
brief, the State of Arkansas respectfully requests that this Court declare error as to
the two points on cross-appeal. https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
 
Three distinct items being worked here, each separately, in front of the appeals court:
1 There's a fairly routine item, based on the fact that when the court record was sent to the appeals court, which then is referenced by parties in an appeal, it was missing one or more pages. So the parties requested, and the appeals court ruled, that the lower court record be corrected.
2 Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law. The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required. In the courtroom, the judge agreed with the state. The appeals court is asked to consider the same question.
3 Item 3 is an unusual "cross appeal" (like a counter-claim, but decided separately on its own merits) by the state. It is unusual in that the state is filing an appeal in a case it already won. The state believes that this district judge was far too restrictive on LE, by throwing out evidence that was PROPERLY obtained via warrants according to well-settled (by higher courts) legal principles. They want the appeals court to rule as such, to keep from creating future confusion for LE and courts over what the proper standard is.

I think item 3 is going to be an easy win for the state. The legal precedent is long-standing and clear, and the judge imo screwed up badly. In regards to the AL case, this item will only have an impact if the state wins (which they should) and then AL is able to persuade the court to grant him a new trial (in the item below).

Item 2 will hinge on the nature and value of the evidence in dispute. But to get a new trial, AL will have to hit a home run twice here, 1st in winning on the general argument that this TYPE of evidence required a warrant, and then if he gets lucky on that one, he also has to persuade the judges that the VALUE of that evidence was so great that he was unlikely to have been convicted without it.

Is it possible Al gets a do-over? I can't offer an expert opinion because I'm not conversant enough with all the trial testimony itself (which is all that matters) to weigh in on the overall value of the "other" evidence. But I can say that if it even gets past the first hurdle (and while it's possible, I'm not quite persuaded it will), the confession of his accomplice and the testimony against him that accompanied it should be a very hard hurdle to overcome in persuading the appeals court that there wasn't more than enough to get him convicted anyhow.
 
The oxygen network just did an episode of Beverly's story on "Three Days to Live". I found it very interesting and learned a couple of things we didn't already know. The oxygen app offers 2 free episodes if you don't have a network to sign in with.


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TV Show "Web of Lies" to Feature AR Murder Case of Realtor Beverly Carter. http://www.arkansasmatters.com/news...rder-case-of-realtor-beverly-carter/687632819

LITTLE ROCK, Ark. - The TV network Investigation Discovery has announced that it will feature an Arkansas murder case on its hit series "Web of Lies" Tuesday.

The show will cover the kidnapping and murder of real estate agent Beverly Carter -- a high profile case that made big headlines back in 2014. Carter was killed after being kidnapped during a home showing on September 30.

In January 2016, Arron Lewis was convicted of Kidnapping and Capital Murder in Carter's death. He will serve a life sentence without parole.

(Watch KARK's 3-part interview series with Arron Lewis here: Part 1, Part 2, Part 3)

Investigation Discovery's bio on Carter's "Web of Lies" episode reads:
"50-year-old Beverly Carter is an internet savvy real-estate agent, but when she goes to meet a prospective buyer at a remote house, she goes missing. The search for Beverly goes viral, but depends on unraveling a web of false identities and fake clues."
This episode includes interviews with:
Carl Carter, Beverly’s husband
Carl Carter Jr, Beverly’s son
Kim Carter, Beverly’s daughter-in-law
Detective Jeff Allison, Pulaski County Sheriff’s Office
Brenda Rhoads, Beverly’s friend
Adam Nash, witness

Tune in to the episode Tuesday, April 11, at 7 p.m. central time.
 
arkansasmimi said:
04/07/2017
11:01 AM SUP CRT ORAL ARGUMENT ISSUED
Entry: Thursday, May 4, 2017
Images Oral Argument Notice
https://caseinfo.aoc.arkansas.gov/c...kto=P&case_id=CR-16-413&begin_date=&end_date=
Click to expand...

OFFICE OF THE CLERK
ARKANSAS SUPREME COURT
625 MARSHALL STREET
LITTLE ROCK, AR 7220I
APNTL 7,2017
RE: SUPREME COURT CASE NO.CR-16413
ARRON MICHAEL LEWIS V. STATE OF ARKANSAS

ATTORNEYS OF RECORD:

THE SUPREME COURT WILL HEAR ORAL ARGUMENT IN THE ABOVE STYLED CASE ON
THURSDAY, MAY 4,2017, AT 9:00 AM IN THE SUPREME COURT COURTROOM. TWENTY
MINUTES WILL BE ALLOWED TO EACH SIDE FOR ARGUMENT AND NOT MORE THAN TWO
COUNSELS WILL BE HEARD FOR EACH SIDE.

WHEN YOU COME TO THE LECTERN FOR ARGUMENT, YOU SHOULD IDENTIFY YOURSELF
AND PARTY OR PARTIES YOU REPRESENT; AND, IF TIME IS TO BE APPORTIONED WITH
OTHER COUNSEL, OR RESERVED FOR REBUTTAL, STATE THE DIVISION DESIRED. IF NONRESIDENT
COUNSEL IS TO PARTICIPATE, COMPLIANCE WITH RULE XIV OF THE RULES
GOVERNING ADMISSION TO THE BAR IS MANDATORY. PLEASE NOTE THAT RULE 5-I
PROHIBITS THE READING OF ORAL ARGUMENT. ALSO, PLEASE STAY IN FRONT OF THE
LECTERN DURING ORAL ARGUMENT BECAUSE IT IS RECORDED.

THE COURTROOM WILL BE OPENED AT 8:00AM AND THE RECORDS OF THE CASES TO BE
ARGUED WILL BE LOCATED IN THE BOTTOM SHELVES OF THE LECTERN IN THE
COURTROOM. SEATING FOR ATTORNEYS IN THE COURTROOM IS THE INNER SEMI.
CIRCLE OF TABLES THAT ARE DESIGNATED "FOR COUNSEL ONLY".

RULE 5-I(J) OF THE RULES OF THE SUPREME COURT PERMITS YOU TO CITE CASES
OUTSIDE YOUR BRIEF DURING ORAL ARGUMENT; HOWEVER THIS PROVISION IS
INTENDED TO APPLY TO CASES THAT HAVE BEEN DECIDED SINCE YOU PREPARED YOUR
BRIEF. IF YOU INTEND TO CITE A CASE OUTSIDE YOUR BRIEF, WHICH WAS DECIDED
SINCE YOUR BRIEF WAS WRITTEN, YOU MUST FURNISH THE CITATION TO OPPOSING
COUNSEL AND THE COURT BEFORE THE DATE OF ARGUMENT.
https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
 
Defense Appeal:
a. The Trial Court Erred in Admitting the Cell Phone Seized from Lewis Following a Car Accident
b. The Trial Court Erred in Admitting the Nontestimonial Fruit of Lewis’s Illegal Interrogation
i. The Arkansas Constitution Can Provide Greater Protections Than the Federal Constitution
ii. Several Other States Have Rejected Patane
iii. This Court Should Reject Patane and Find That the Arkansas Constitution Warrants Exclusion of Nontestimonial Fruit of an Illegal Interrogation
iv. Patane Was Wrongly Decided
v. The Recording Should Be Suppressed Under the Arkansas Rules of Criminal Procedure.
c. The Trial Court Erred By Admitting Evidence Obtained Through Abuse of the Prosecutorial Subpoena Power
d. The Trial Court Erred in Admitting Lewis’s Second Custodial
Statement Because it Was the Involuntary Product of False
Promises by Law Enforcement.
e. The Trial Court Erred in Admitting Certain Items Located in Lewis’s Car Pursuant to an Inventory Search
i. Law Enforcement Lacked Good Cause to Retain Lewis’s Car in Official Custody
ii. The Purpose of the Inventory Search was to Obtain Evidence Rather than to Protect Lewis’s Property
https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
 
Arron Lewis JMHO, will never walk the streets free again. He is right where he needs to be. But the points on Appeal can and will effect other cases if wins on any of the the points listed.

Not only will it effect cases in Pulaski County (largest county in state) but potentially effect many others. It has the potential to effect many cases possibly in Appeals and/or going to trial in future. It will also effect how PCSO LEO do their jobs. The actions taken in this case and how was handled (per testimony from Inv) could effect cases for years to come. Copy of the PCSO Tow Policy are in Cross Appeal and Judge Wright transcripts are in the Briefs as well as in the Orders on the Docket page. RE evidence found in the home (BC iPhone) and in trunk of AL vehicle (tape that matched that on BC when she was later found, BC hair) <Judge stated these were not something that would be inventoried per the Tow Procedure to protect veh owners property.

Cross Appeal
I
THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN ITS INTERPRETATION OF THE LAW ON GENERAL WARRANTS; ALTERNATIVELY, IT ERRED BY CURSORILY REJECTING THE STATES'S GOOD-FAITH ARGUMENT
II
THE CIRCUIT COURT'S REFUSAL TO APPLY THE INEVITABLE-DISCOVERY DOCTRINE TO ITEMS FOUND IN THE TRUNK OF APPELLANT'S VEHICLE CONSTITUTED AN INCORRECT INTERPRETATION OF THE LAW ON INVENTORY SEARCHES AND UNDERMINES THE INEVITABLE-DISCOVERY DOCTRINE https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS

That is why the State is Appealing. ADA Johnson filed notice of Cross Appeal because of this immediately because it will definitely have bearing on Pulaski County Pros Office cases.
 
The reason that the record had to be completed is because "Prosecutor's subpoena commanding Google to disclose records associated with particular TextMe account to members of the Pulaski County Sheriff's Office was not part of the record " Document was never entered into the trial record. Although testimony was given about applying for it from Investigator at trial. **I hope we get to see it to see which Pros signed off on it** And while the documents from another case (AL Federal case against PCSO and John Johnson) didn't get admitted into the Appeal. JMHO that was showing the in a verified response to interrogatories of Johnson on procedures within the Pros Office. Ark Code 16-43-212 states clearly can only Pros can only issue Pros Subpoena for their case preparing for trial. In this case BC had just recently became missing. PCSO was trying to find out who she conversed with (in PCSO missing person case) JMHO I feel sure will be used in other cases when this comes up and used to potentially impeach if states different. https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
 
2 Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law. The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required. In the courtroom, the judge agreed with the state. The appeals court is asked to consider the same question.
Click to expand...

RBBM not true. This is what he State is saying. The State argued and Judge Wright agreed that per the case referenced, that AL the defendant > " a defendant had no legitimate
expectation of privacy in his telephone records&#8221; and thus has no standing under the
Fourth Amendment to challenge the subpoenas or phone records obtained". While that is true by the cases referenced, if the PCSO Investigator had simply gotten a Judge to issue the document (a SW) to get the information from Google about the TextMe, then it wouldn't be something that the Def Attorney could argue that Pros should never have issued per Ark Code. Defense is arguing the Pros Subpoena being issued in a PCSO investigation, not the Google Records themselves.

III. THE CIRCUIT COURT DID NOT ERR BY REJECTING
APPELLANT&#8217;S CHALLENGE TO THE USE OF PROSECUTOR&#8217;S
SUBPOENAS.
Appellant argues that the circuit court erred by refusing to suppress evidence
resulting from prosecutor&#8217;s subpoenas. Investigator Michael Hendrix prepared
those subpoenas for Yahoo, Google, and AT&T to obtain the call log associated
with the &#8220;spoof number&#8221; used to contact Carter. (Ab. 3, 122; R. 549, 851). Citing
State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986), Appellant argued below
that police officers are unauthorized to issue prosecutor subpoenas. (Add. 18; R.
223). The court found that Appellant &#8220;omit[ed] the actual holding of the case.
Hamzy held that, prosecutorial misconduct aside, a defendant had no legitimate
expectation of privacy in his telephone records&#8221; and thus has no standing under the
Fourth Amendment to challenge the subpoenas or phone records obtained. (Add.
68; R. 366). On appeal, Appellant makes the same argument he did below, but
ignores the finding that he lacked standing to challenge the subpoenas or phone
records obtained therefrom.
Evidence should not be excluded under the Fourth Amendment unless an
unlawful search or seizure violated the defendant&#8217;s own constitutional rights, and
his or her rights are violated only if the challenged conduct invaded his or her
legitimate expectation of privacy rather than that of a third party. Id. at 564, 709
S.W.2d at 398. &#8220;A person has no legitimate expectation of privacy in information
he voluntarily turns over to third parties.&#8221; Smith v. Maryland, 442 U.S. 735, 743-
744 (1979) (holding that police did not violate the Fourth Amendment by causing a
pen register to be installed at the telephone company&#8217;s offices to record the
telephone numbers dialed by a criminal suspect).
4
In Hamzy, a prosecutor issued a subpoena directing a telephone company to produce phone records for a police
investigation. This Court held that the prosecutor abused his subpoena power by
authorizing the police to seize evidence. Id. at 563, 709 S.W.2d at 397-98.
Nonetheless, Hamzy lacked standing to question the seizure because he did not
show a violation of his own constitutional rights. Id. at 566, 709 S.W.2d at 399.
Here, just as in Hamzy, subpoenas were issued to third parties. Because
Appellant lacked standing to challenge the admissibility of evidence obtained from
prosecutor&#8217;s subpoenas, the court&#8217;s denial of his motion should be affirmed.
__________
4 The recent United States Supreme Court opinion in Riley v. California, 134
S.Ct. 2473 (2014), does not change this. In Riley, the Court considered whether
the police may, without a warrant, search digital information stored on a cell phone
seized from an individual who has been arrested. Id. at 2480. There, the digital
contents of cell phones had been searched by police incident to arrest, and the
Court was required &#8220;to decide how the search incident to arrest doctrine applies to
modern cell phones, which are now such a pervasive and insistent part of daily life
that the proverbial visitor from Mars might conclude they were an important
feature of human anatomy.&#8221; Id. at 2484. The Court distinguished that case from
the circumstances in Smith and held that police generally may not, without a
warrant, search the digital information stored on a cell phone seized from an
individual who has been arrested. Id. at 2485-92 https://contexte.aoc.arkansas.gov/i.../contexte.aoc.arkansas.gov/imaging/IMAGES/DMS
 
AL iPhone - allegedly was never extracted. AL stated he allegedly has 3 (iirc on number) of videos on his phone to prove his story (this was at a Hearing, when AL was still Pro Se, it was after that hearing he took Judge Wright up on getting an Attorney, and Judge appointed Def Attorney Bill James) IF they had extracted it, which they def have capability of then no telling what is on it that could help the Pros. Definitely the recording that he played in the illegal interrogation. <<< that is what the Oral Argument is about (b).

Possible too that the photo that AL allegedly sent to CL with BC in the trunk is still able to be pulled from AL iPhone. I can't understand why they did not extract his phone. IF they had, all they had to do is enter the recording from phone into evidence. This was prior to CL taking the Plea Agreement (she plea July 7, 2015 iirc and that Hearing where AL alleged strongly that he had videos on his phone that he needed to get it extracted for his defense).

Only thing I can think of is IF there was some sort of video on there then it would have to be turned over in Discovery to Defense. Nothing in the trial ever went to anything found on AL phone. Only CL and BC phone. *other than phone records from all AL Spoof #, BC cell and home # and CL text messages that showed only what was on CL iPhone between CL and AL. IIRC some had been deleted and was able to recover. Some note as the MMS pic that CL alleged was of BC in trunk with green tape on her*

Per BC son CCjr, BC phone that was found in AL/CL home was returned to the family. **I don't remember hearing about anything extracted from her iPhone either (in court hearings / trial)
 
SteveS said:
Three distinct items being worked here, each separately, in front of the appeals court:
1 There's a fairly routine item, based on the fact that when the court record was sent to the appeals court, which then is referenced by parties in an appeal, it was missing one or more pages. So the parties requested, and the appeals court ruled, that the lower court record be corrected.
2 Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law. The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required. In the courtroom, the judge agreed with the state. The appeals court is asked to consider the same question.
3 Item 3 is an unusual "cross appeal" (like a counter-claim, but decided separately on its own merits) by the state. It is unusual in that the state is filing an appeal in a case it already won. The state believes that this district judge was far too restrictive on LE, by throwing out evidence that was PROPERLY obtained via warrants according to well-settled (by higher courts) legal principles. They want the appeals court to rule as such, to keep from creating future confusion for LE and courts over what the proper standard is.

I think item 3 is going to be an easy win for the state. The legal precedent is long-standing and clear, and the judge imo screwed up badly. In regards to the AL case, this item will only have an impact if the state wins (which they should) and then AL is able to persuade the court to grant him a new trial (in the item below).

Item 2 will hinge on the nature and value of the evidence in dispute. But to get a new trial, AL will have to hit a home run twice here, 1st in winning on the general argument that this TYPE of evidence required a warrant, and then if he gets lucky on that one, he also has to persuade the judges that the VALUE of that evidence was so great that he was unlikely to have been convicted without it.

Is it possible Al gets a do-over? I can't offer an expert opinion because I'm not conversant enough with all the trial testimony itself (which is all that matters) to weigh in on the overall value of the "other" evidence. But I can say that if it even gets past the first hurdle (and while it's possible, I'm not quite persuaded it will), the confession of his accomplice and the testimony against him that accompanied it should be a very hard hurdle to overcome in persuading the appeals court that there wasn't more than enough to get him convicted anyhow.
Click to expand...

Mimi, not sure what you're disputing from what I wrote in the above. Perhaps you didn't fully follow what I said.

All 3 items as outlined are being separately adjudicated before the Court. As such, the filings pertaining to each will NOT bear on the thinking and decisions of the other items, except to the extent that the same argument is referenced in both. Each set of filings is like a world unto itself.

You argued against what I wrote about Item 2, but it was properly stated by me. I said:
"2 Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law. The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required. In the courtroom, the judge agreed with the state. The appeals court is asked to consider the same question."

Yes that is a DEFENSE appeal. Which is what I said. As I wrote, the defense submitted the appeal and was making the arguments as outlined in the beginning of the paragraph, while the state's argument in reply was also summarized in the middle of the paragraph I wrote.

The "cross-appeal" (item 3) is NOT an answer by the state to the defense's appeal. It is a separate appeal to the higher court, in and of itself, and its issues will be adjudicated accordingly.
 
SteveS said:
Mimi, not sure what you're disputing from what I wrote in the above. Perhaps you didn't fully follow what I said.

All 3 items as outlined are being separately adjudicated before the Court. As such, the filings pertaining to each will NOT bear on the thinking and decisions of the other items, except to the extent that the same argument is referenced in both. Each set of filings is like a world unto itself.

You argued against what I wrote about Item 2, but it was properly stated by me. I said:
"2 Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law. The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required. In the courtroom, the judge agreed with the state. The appeals court is asked to consider the same question."

Yes that is a DEFENSE appeal. Which is what I said. As I wrote, the defense submitted the appeal and was making the arguments as outlined in the beginning of the paragraph, while the state's argument in reply was also summarized in the middle of the paragraph I wrote.

The "cross-appeal" (item 3) is NOT an answer by the state to the defense's appeal. It is a separate appeal to the higher court, in and of itself, and its issues will be adjudicated accordingly.
Click to expand...

Respectfully, I am fully aware of what an Appeal is, what is being Appealed by Def, what is being Cross Appealed by the State and fully understand the reasoning behind. Both the Def Appeal matters and the Cross Appeal.

As to your post, the Google account had to have a legal document to get the information. Again if you look at what I stated. And WHY it is Appealed by Def and the Response by the State. AND what the point is.

2 Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law. The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required. In the courtroom, the judge agreed with the state. The appeals court is asked to consider the same question.
Click to expand...

RBBM not true. This is what he State is saying. The State argued and Judge Wright agreed that per the case referenced, that AL the defendant > " a defendant had no legitimate
expectation of privacy in his telephone records” and thus has no standing under the
Fourth Amendment to challenge the subpoenas or phone records obtained". While that is true by the cases referenced, if the PCSO Investigator had simply gotten a Judge to issue the document (a SW) to get the information from Google about the TextMe, then it wouldn't be something that the Def Attorney could argue that Pros should never have issued per Ark Code. Defense is arguing the Pros Subpoena being issued in a PCSO investigation, not the Google Records themselves.

AND, The Cross Appeal which Pulaski County ADA John Johnson filed the Cross Appeal as soon as possible and would have whether Def Attorney Bill James had filed and Appeal or not (But since AL got Life it was an automatic Appeal in AR). And I stated why it was an important Appeal against Judge Wright decisions.

Again I Totally understand the Appeal. And what each item appealed means for the in reference to what happened in trial. The points appealed has greater potential effects than just on AL.

Now I may have misunderstood your point of "Three distinct items being worked here, each separately, in front of the appeals court". But there is more than 3 points being argued by the Def and 2 by the State on Cross Appeal. There are 5 for the Def (a, b, c, d, e, f http://www.websleuths.com/forums/sh...e-Rock-25-Sep-2014-13&p=13296146#post13296146 ) If Your #1 is in reference to the the actual Pros Subpoena to Google, that was not included into the record. It goes towards (c) the Pros Subpoena Powers. That was NOT part of the Initial Brief filed 8/19/2016, but was a separate, but was 1/25/2017 PETITION WRIT OF CERT TO COMP REC (after the State had filed their Appellee's Brief Cross Appellant's Brief 12/15/2016)

Depending how the AR Supreme Court Opinion is on ea of the 5 points of Appeal, could mean a lot of different things. Especially if they were to get a new trial. Same with if the State won their Cross Appeal.
*was there for the Hearings and Trial not going my MSM reporting.
 
Defense Appeal:
a. The Trial Court Erred in Admitting the Cell Phone Seized from Lewis Following a Car Accident
IF the SC sides with Def, this means that AL Phone is OUT (if got new trial and everything on it)

b. The Trial Court Erred in Admitting the Nontestimonial Fruit of Lewis&#8217;s Illegal Interrogation
i. The Arkansas Constitution Can Provide Greater Protections Than the Federal Constitution
ii. Several Other States Have Rejected Patane
iii. This Court Should Reject Patane and Find That the Arkansas Constitution Warrants Exclusion of Nontestimonial Fruit of an Illegal Interrogation
iv. Patane Was Wrongly Decided
v. The Recording Should Be Suppressed Under the Arkansas Rules of Criminal Procedure.
IF the SC sides with the Def, This would mean that the recording of BC that AL played while in the illegal interrigaion would be OUT **THIS IS BEING ARGUED MAY 4, 2017 and will be recorded and public can access**

c. The Trial Court Erred By Admitting Evidence Obtained Through Abuse of the Prosecutorial Subpoena Power
IF the SC sides with the Def, this would mean the Google information that was obtained that connected the Spoof number used OUT

d. The Trial Court Erred in Admitting Lewis&#8217;s Second Custodial Statement Because it Was the Involuntary Product of False
Promises by Law Enforcement.
IF the SC sided with the Def, that would be the only interrogation left OUT

e. The Trial Court Erred in Admitting Certain Items Located in Lewis&#8217;s Car Pursuant to an Inventory Search
i. Law Enforcement Lacked Good Cause to Retain Lewis&#8217;s Car in Official Custody
ii. The Purpose of the Inventory Search was to Obtain Evidence Rather than to Protect Lewis&#8217;s Property
https://contexte.aoc.arkansas.gov/im...ing/IMAGES/DMS

IF the SC sided with Def, anything that was allowed from AL car would be OUT

Again, jmho IF AL were to get another trial, any of these ^^ that out would not be allowed in the new trial. They would still have CL testimony, AL stupid Affidavit he wrote and had the paralegal service post. They still have AL iPhone, but again as stated prior unsure what is on that iPhone. They have the video from Walmart of AL purchasing the shovel. Witness across the street, but ther were other witnesses that saw other vehicles and SW for other veh other than AL car eventually. The Appeal is automatic. But the potential for the SC Opinion on any of these 5 points, will have effects on cases in the future. No matter for or against, cases will reference back to the Opinion.

And on the State Cross Appeal, they too will have effects either way. But by the testimony of the Investigators and the PCSO tow policy, JMHO seems like the Judge was on pretty solid ground. AND this also ties a little to evidence in Def point (e). As well with many past, current and future searches for tow vehicles, and Search Warrants issued.
IF The State wins either of their points, could mean (in this case) House items in (BC iPhone at AL/CL home), and trunk items in. (BC hair dna match and green tape that matched the roll found at burial crime scene/matched the tape that BC was bound in). But will be referenced in future again JMHO no matter how the ruling.
 
SteveS http://www.websleuths.com/forums/sh...e-Rock-25-Sep-2014-13&p=13256671#post13256671
Attention: All my comments are IMO JMO MOO AFAIK etc
Is it possible Al gets a do-over? I can't offer an expert opinion because I'm not conversant enough with all the trial testimony itself (which is all that matters) to weigh in on the overall value of the "other" evidence. But I can say that if it even gets past the first hurdle (and while it's possible, I'm not quite persuaded it will), the confession of his accomplice and the testimony against him that accompanied it should be a very hard hurdle to overcome in persuading the appeals court that there wasn't more than enough to get him convicted anyhow.
Click to expand...

RBBM. By TOS you wouldn't be able to give an "expert opinion" even if you were "conversant enough with all the trial testimony itself" because your not verified at WS as an expert in any field. No snark intended. Per TOS only those Verified in a profession or a Verified Insider can give that type comments and not need to have back up. Otherwise it just our opinion. I posted links back to where I got information for my opinions.
 
Mimi, addressing your last post first 299, you are correct in noting that I have not gone through the process to be verified an an "expert" by WS. Nor will I, as I prefer to keep myself private. However, I don't lose my background and experience by having a reluctance to register my bona fides with WS, and as a result I still feel a professional obligation (and in some ways a necessity) to distinguish the nature of my "opinion" on certain points.

In any event, hopefully my contributions and distinctions will be helpful to the readers (including you) in understanding some of the issues and process. That is my intention. But if that distinction or my knowledge is not helpful for you, that's fine, just scroll and roll as they say.

IN YOUR POST 297 ... When you say "not true" and then offer the red bold followed by the black bold, it looks to me like you are actually saying the very same thing I had already summarized. Which is that the state in its investigation didn't get a warrant for certain info, with the belief and claim they didn't need one, the judge at trial agreed they didn't need one, and the defense is now re-raising that issue on appeal.

This is what I identified as "Item 2" in my summary. As I said...
*Item 2 is the defense arguing that the state abused its subpoena powers (issued by a prosecutor) to get access to info for an investigation, when a warrant (issued by a judge) was required by law.
*The state says that the specific info being requested never requires a judge's permission-to-search (ie search warrant), therefore a subpoena was a better method since it didn't involve a judge where one was not required.
*In the courtroom, the judge agreed with the state.
*The appeals court is being asked (by the defense) to consider the same question (and rule differently)."LATER IN 297 ..."Now I may have misunderstood your point of "Three distinct items being worked here, each separately, in front of the appeals court". But there is more than 3 points being argued by the Def and 2 by the State on Cross Appeal. There are 5 for the Def (a, b, c, d, e, f http://www.websleuths.com/forums/sho...6#post13296146 )

To clarify for you, my point was that (to use a sports analogy) it's like 3 separate games are being played. In each, it's the state versus AL and all 3 are being played at somewhat the same time, so it can be somewhat confusing to the layman as to what applies to which. There will of course be multiple points raised and argued in each of those 3 separate "games." But they are separate "games," and what is done in one of them isn't part of what's done in another, so I went through and distinguished the 3 from each other, to make it easier for readers here to follow.
*#1 was the "game" of whether or not the trial record, as transmitted to the appeals court, was complete. That game is already over, and in it both the state and AL agreed that part of it had been omitted, and it was ordered by the higher court that it be corrected.
*#2 was the "game" of a defense appeal over some of the evidence used at trial, and deciding whether or not the lower court judge had properly allowed that evidence into the trial. As I noted previously, the answer to that hinges on technical details about the way and from whom the evidence was obtained. I can't predict how they will rule, but think it necessary to understand that a ruling in AL's favor will not necessarily lead to a new trial - it would take a favorable ruling on that issue PLUS some more favorable rulings in his favor.
*#3 was the "game" of a state appeal (called a "cross-appeal") over some of the evidence barred from trial, and whether or not the lower court judge had acted properly in barring it. On this matter, I think he was way off base and it's very likely that the higher court will overturn his ruling, but we have to wait and see it play out because that's for the judges to decide.

AS FAR AS YOUR CONCLUSION IN POST 298 that these appeals will have some ripple effect on future trials in Arkansas, that is correct. All appeals in any state in any criminal case over evidence being included or excluded, and why, carry that consequence. In each, the appeals court ultimately provides a clarification of the law that either confirms prior precedent, or makes new precedent.
 
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