                                  Cite as 2020 Ark. 217
                  SUPREME COURT OF ARKANSAS
                                      No.   CR-18-1057

                                                Opinion Delivered:   May 28, 2020
RODNEY HARMON
                               APPELLANT APPEAL FROM THE FAULKNER
                                         COUNTY CIRCUIT COURT
V.                                       [NO. 23CR-15-702]

STATE OF ARKANSAS                         HONORABLE CHARLES E. CLAWSON,
                                 APPELLEE JR., JUDGE

                                                AFFIRMED; COURT OF APPEALS’
                                                OPINION VACATED.


                             ROBIN F. WYNNE, Associate Justice

       Rodney Harmon was convicted of various drug and drug-related offenses and

sentenced to an aggregate term of forty years’ imprisonment. On appeal, Harmon argues

that the trial court erred by (1) refusing to order the State to obtain a video recording of

the search of Harmon’s home and to identify the filmmakers; (2) denying Harmon’s

request for a continuance to obtain the video and identify the filmmakers; (3) granting the

State’s motion in limine to exclude testimony regarding the filmmakers’ presence; (4)

giving a nonmodel jury instruction on the methamphetamine-trafficking charge; and (5)

allowing the State to play a recording of a controlled drug buy through an informant

during the penalty phase of the trial. We affirm and vacate the opinion of the court of

appeals.

                                       I. Background
       In September 2015, officers of the United States Drug Enforcement Agency, the

Twentieth Judicial District Drug Task Force, and the Faulkner County Sheriff’s Office

executed a warrant for the search of Harmon’s home. They found more than six pounds of

methamphetamine, multiple firearms and ammunition, baggies, scales, and cash. An HBO

documentary film crew was also present at the search under an agreement with law

enforcement. The crew, which consisted of Craig and Brent Renaud and a camera

operator, was working on a documentary called Meth Storm, which later aired on HBO. The

filmmakers did not participate in the search, nor did they include footage of the search in

the film. They were not included as witnesses in the report of the search given to

prosecutors. The film’s credits thanked the judge and deputy prosecuting attorney who

handled Harmon’s case.

       For more than a year after the search took place, the prosecutor was unaware of the

presence of the filmmakers. When she learned of their presence in January 2017, she

contacted defense counsel, stating that she did not have any of the footage but providing

contact information for Craig Renaud. Days later, Harmon moved for a continuance. At a

hearing on the motion, Harmon argued that the filmmakers could be agents of the State.

He argued that the footage could be relevant and subject to disclosure, and that he might

want to file an amended motion to suppress, based on the contents of the footage. The

prosecutor said that the State did not have the HBO footage and that she had

unsuccessfully tried to contact HBO to obtain it. She also said she had given defense

counsel the information she had. The trial court granted the continuance.

                                            2
       During the next several months, Harmon unsuccessfully sought the footage and the

identities of the filmmakers present at the search. The prosecutor gave defense counsel

additional contact information for the HBO legal department and DEA personnel who

may have approved the presence of the film crew. About a month before trial, the trial

court denied Harmon’s request for an order requiring the State to obtain the video but

issued an order to “whomever shall be in possession and/or ownership” of the video to

provide it. On the first day of trial, the trial court denied Harmon’s motion for a

continuance until the video was obtained and people present identified. The court granted

the State’s motion in limine to prohibit mention of the filmmakers’ presence at the search.

After the court granted the State’s motion, Harmon proffered testimony from LeAnn Bakr,

the DEA agent present at the search, that a previously unidentified camera operator named

“Cole” was present at the search. Bakr also testified that she chose not to include the

filmmakers as witnesses in her search-warrant report. Johnny Sowell of the drug task force

testified that, although he did not write the report, he would not have listed the

filmmakers as witnesses if he had.

       Before trial, the State moved to use a nonmodel jury instruction on the

methamphetamine-trafficking charge. The State proffered a jury instruction that added a

series of factors for the jury to consider on “purpose to deliver,” pulled from the model

instruction for a lesser-included offense. Harmon proffered the model instruction. Over

Harmon’s objection, the court gave the nonmodel instruction. The jury convicted Harmon

of trafficking methamphetamine within 1,000 feet of a school-bus stop, simultaneous

                                            3
possession of drugs and firearms, possession of drug paraphernalia, and maintaining a drug

premises within 1,000 feet of a school-bus stop. During the penalty phase of the trial, the

State moved to introduce recordings of drug purchases from Harmon allegedly made by

Shannon Daniels, a confidential informant who was not present at trial. Over Harmon’s

objection that the evidence was more prejudicial than probative, the trial court allowed the

evidence. Harmon was sentenced to an aggregate term of forty years’ imprisonment.

       Harmon timely appealed his convictions. On December 4, 2019, the court of

appeals affirmed in part and reversed in part. Harmon v. State, 2019 Ark. App. 572, 591

S.W.3d 347. We granted Harmon’s petition for review. When we grant a petition for

review, we treat the appeal as if it had originally been filed in this court. Stone v. Washington

Reg’l Med. Ctr., 2017 Ark. 90, at 4, 515 S.W.3d 104, 107.

                                      II. Points on Appeal

                                       A. HBO Footage

       For his first point on appeal, Harmon argues that the trial court abused its

discretion by refusing to order the State to obtain the HBO video footage of the search of

Harmon’s home and to identify the filmmakers present. Harmon acknowledges that the

State does not have an affirmative duty under Brady v. Maryland, 373 U.S. 83 (1963), to

produce evidence it does not have. But he contends that under Rules 17.1 and 17.4 of the

Arkansas Rules of Criminal Procedure, the State was obligated to obtain the footage and

the identities of the filmmakers. Rule 17.1(c) provides in relevant part that “[t]he

prosecuting attorney shall, upon timely request, disclose and permit inspection, testing,
                                               4
copying, and photocopying of any relevant material regarding (i) any specific searches and

seizures.” Rule 17.4(a) provides that “[t]he court in its discretion may require disclosure to

defense counsel of other relevant material and information upon a showing of materiality

to the preparation of the defense.”

       In arguing that it was the State’s responsibility to provide the video, Harmon

contends that the HBO filmmakers were state actors or agents of the state because they

were present at the behest of law enforcement. We review rulings regarding alleged

violations of discovery rules for abuse of discretion. Hicks v. State, 340 Ark. 605, 612, 12

S.W.3d 219, 223 (2000). Harmon relies on Wilson v. Layne, 526 U.S. 603, 614 (1999), in

which the United States Supreme Court held that it is a violation of the Fourth

Amendment for police to bring members of the media or other third parties into a home

during the execution of a warrant when the presence of the third parties in the home was

not in aid of the execution of the warrant. Harmon argues that because the filmmakers

were state actors or agents, the State had an obligation to obtain the video and identify

who was present at the search.

       Harmon does not provide convincing authority to support his contention that the

filmmakers were state actors or state agents. The filmmakers were more than mere

bystanders; they were present at the invitation of law enforcement. But that does not make

them state actors or agents. Bakr and Sowell testified that the filmmakers did not

participate in the search. Wilson is not on point. Any possible Fourth Amendment claim

Harmon may have against law enforcement under Wilson stemming from the presence of

                                              5
the filmmakers at the search is distinct from the State’s discovery obligation to obtain the

video and identify all individuals present.

       Harmon cites a series of cases for the proposition that information held by the

police is imputed to the prosecution. In Williams v. State, 267 Ark. 527, 593 S.W.2d 8

(1980), the defendant made an incriminating statement in the presence of a police officer.

The prosecutor learned of the statement the evening before trial but did not disclose it to

the defense until after voir dire the next day. We concluded that because the defendant

made the statement in the police officer’s presence, the officer’s knowledge of the

statement was imputed to the prosecution. Id. at 531, 593 S.W.2d at 10. Likewise, in Lewis

v. State, the State called a witness whom the prosecutor had learned about the morning of

the trial. Because the witness had given crucial information to the police, we concluded

that information was imputed to the prosecution. 286 Ark. 372, 375, 691 S.W. 2d 864,

865 (1985). Harman argues that because law enforcement knew about the presence of

filmmakers during the search, that knowledge is imputed to the prosecution, which had a

duty to disclose the footage under Rule 17. We disagree. While we recognize that

information held by the police is imputed to the prosecution, in this case the police did

not possess the footage and did not take statements from the filmmakers. The State did not

call the filmmakers as witnesses or introduce the footage into evidence. Plus, the

prosecutor disclosed the existence of the footage and contact information for the

filmmakers more than a year before trial.

       Harmon also argues that the presence of the filmmakers at the search of his home is

                                              6
analogous to the presence of witnesses at the taking of a custodial statement. We have held

that the State must produce all witnesses present at the taking of a custodial statement or

explain their absence, Foreman v. State, 328 Ark. 583, 590, 945 S.W.2d 926, 930 (1997).

But the taking of a custodial statement is not the same as the search of a home. And the

State did disclose the presence of the filmmakers. Under these circumstances, we decline to

extend our holding in Foreman to include witnesses present at the execution of a search

warrant who did not participate in the search.

       The State cites Barrow v. State, 2010 Ark. App. 589, 377 S.W.3d 481, to support its

contention that Rule 17 does not require it to produce the video. In Barrow, there was

evidence of the victims’ medical treatment at area hospitals that the State did not disclose

to the defense. The court of appeals held that “[b]ecause the medical facilities are not law-

enforcement agencies, the prosecutor had no obligation to obtain the records under Rule

17.3. In the absence of a showing . . . that the State had access to the records, no discovery

violation occurred.” Id. at 15, 377 S.W.3d at 491. According to the State, the evidence

held by the filmmakers is akin to evidence held by the hospitals in Barrow.

       We agree. The filmmakers were not law-enforcement officers, nor were they acting

as state agents. Because the State did not possess the video, we find no discovery violation.

It is undisputed that neither the police nor the prosecution had the video. As soon as she

found out about the presence of the filmmakers, the prosecutor informed defense counsel

and provided contact information for one of the filmmakers. She also attempted to get the

video herself and later provided additional contact information for relevant individuals at
                                              7
HBO and the DEA more than a year before trial. The question is not whether the State

could have done more to get the video; it is whether the trial court abused its discretion by

not ordering the State to do so. We conclude the trial court did not abuse its discretion in

declining to order the State to obtain the video.

                                      B. Continuance

       Next, Harmon argues that the trial court abused its discretion by denying the

defense’s request for a continuance to obtain the video and the identity of the filmmakers

present. He argues that he made good-faith efforts to obtain the evidence and was

prejudiced without having it at trial. He tried to obtain the video—he contacted counsel for

HBO, which declined to produce the footage without an order, contacted the Renauds’

company, and attempted to serve Craig Renaud—but was ultimately unsuccessful.

       We review the denial of a continuance for abuse of discretion. Price v. State, 365

Ark. 25, 33, 223 S.W.3d 817, 824 (2006). A trial court should consider the following

factors in deciding whether to grant a continuance: (1) the diligence of the movant; (2) the

probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of

the witness in the event of a postponement; and (4) the filing of an affidavit, stating not

only what facts the witness would prove, but also that the appellant believes them to be

true. Miller v. State, 328 Ark. 121, 124, 942 S.W.2d 825, 827 (1997).

       The trial court did not abuse its discretion in denying Harmon’s request for a

continuance. Harmon knew about the existence of the footage for about sixteen months

before trial. He made multiple attempts to get the video. The need for an order was

                                              8
discussed with the trial court during the October 2017 hearing on Harmon’s motion to

continue. The State agreed to the continuance, and the prosecutor said she was “willing to

do whatever is necessary” for Harmon to get the video. But there is nothing in the record

that shows Harmon made efforts to obtain an order until the trial court issued it in May

2018, less than a month before trial. There is no evidence that he attempted to subpoena

HBO. We find that there is little likelihood that he could obtain the evidence if given

another continuance. Plus, there is no evidence about the probable effect of the evidence

at trial. We acknowledge that Harmon only learned of the identity of a camera operator

named “Cole” from Bakr’s proffered testimony on the first day of trial. But Harmon knew

for more thana year that HBO filmmakers had been present; that he did not know the first

name of the camera operator did not merit a continuance under these circumstances.

                                  C. Motion in Limine

      Harmon argues that the trial court abused its discretion by granting the State’s

motion in limine to exclude testimony regarding the presence of the HBO filmmakers. He

argues that trial references to absent witnesses are a proper subject of argument, citing

Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994), and Noel v. State, 331 Ark. 79, 960

S.W.2d 439 (1998), for the proposition that references to absent witnesses imply those

witnesses have something to hide. He contends that the presence of undisclosed witnesses

at the scene of the offense and the fact that the search was recorded but the footage was

not provided raises the inference that law enforcement wanted to conceal their presence,

showing reasonable doubt.

                                            9
       We review the trial court’s ruling on the admissibility of evidence for abuse of

discretion. Vance v. State, 2011 Ark. 392, at 6, 384 S.W.3d 515, 519. Under Arkansas Rule

of Evidence 403, a trial court may exclude relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

       The trial court did not abuse its discretion in granting the State’s motion to exclude

testimony about the film. The cases Harmon cites, Bullock and Noel, can be distinguished.

In both cases, the defendant gave alibi testimony—Bullock testified that he worked and

received a paycheck on the day of the offense, and Noel gave names of alibi witnesses. In

closing arguments, the State pointed out holes in that testimony—Bullock did not produce

the paycheck, and Noel did not call the witnesses. In both cases, the trial court declined to

declare a mistrial, and we affirmed. These cases examine how the failure to produce alibi

evidence undermines the credibility of defendants who testify. Bullock, 317 Ark. at 206,

876 S.W.2d at 580–81; Noel, 331 Ark. at 89, 960 S.W.2d at 444. That is not the issue here.

       Testimony that filmmakers were present at the search could possibly be relevant to

whether there was reasonable doubt about what happened during the search in the absence

of the footage or testimony from the filmmakers. But the trial court could conclude that

the risk of confusion substantially outweighed any probative value. Neither party planned

to introduce any footage; indeed, neither party had any footage. The filmmakers played no

role in the search; they merely observed it. Harmon’s argument that law enforcement had

                                             10
something to hide is undercut by the prosecutor’s prompt disclosure of the filmmakers’

presence well over a year before trial. We conclude that the trial court did not abuse its

discretion on this point.

                              D. Nonmodel Jury Instruction

       Next, Harmon argues that the trial court abused its discretion by allowing a

nonmodel jury instruction on the methamphetamine-trafficking charge. The State

requested a nonmodel instruction on this charge, which added six factors that the jury

could consider in determining whether Harmon had “purpose to deliver” to the model

trafficking instruction, Arkansas Model Jury Instruction–Criminal 2d 64.440. Harmon

objected to the State’s request for a nonmodel instruction and proffered AMI Crim. 2d

64.440 as written. The instruction given to the jury read as follows (the nonmodel portions

are underlined):

              Rodney Harmon is charged with the offense of trafficking
       methamphetamine. To sustain this charge, the State must prove beyond a
       reasonable doubt; first, that Rodney Harmon possessed or possessed with the
       purpose to deliver more than 200 grams by aggregate weight including an adulterant
       or dilutant of methamphetamine; and second, that he did so knowingly or
       purposely.

              Purpose to deliver may be shown by evidence that you find beyond a
       reasonable doubt proves Rodney Harmon’s purpose to deliver methamphetamine.
       The evidence which you may consider along with all the facts and circumstances of
       the case include any of the following factors:

        Defendant possessed        the   means     to   weigh,   separate,   or   package
         methamphetamine; or

        Defendant possessed a record indicating a drug related transaction; or


                                            11
        The methamphetamine was separated and packaged in a manner to facilitate
         delivery; or

        Defendant possessed a firearm that was in his immediate physical control at the
         time of the possession of the methamphetamine; or

        The Defendant possessed at least two other controlled substances in any
         amount; or

        Other evidence that contributes to prove the Defendant’s purpose was to deliver
         methamphetamine.

              And these definitions are applicable:

               Knowingly, a person acts knowingly with respect to his conduct or attendant
       circumstances when he is aware that his conduct is of that nature or that such
       circumstances exists. A person acts knowingly with respect to a result of his conduct
       when he is aware that it is practically certain that his conduct will cause such a
       result.

               Possession, there are two kinds of possession, actual and constructive. Actual
       possession of a thing is a direct physical control over it. Constructive possession
       exists when a person, although not in actual possession of that thing, has a right to
       control it and intends to do so. If two or more persons share actual or constructive
       possession of a thing, either or both may be found to be in possession.

              Purposely, a person acts purposely with respect to his conduct or a result
       thereof when it is his conscious object to engage in conduct of that nature or to
       cause such a result.

This instruction essentially imports the purpose-to-deliver language from an instruction on

a lesser-included offense—possession with intent to deliver—also given to the jury.

       Harmon argues that a nonmodel instruction should be given only when the trial

judge finds that the model instruction does not accurately state the law or does not contain

an instruction on the subject. Ventress v. State, 303 Ark. 194, 197, 794 S.W.2d 619, 620

(1990). There is a model instruction on the trafficking charge—AMI Crim. 2d 64.440—so
                                             12
the question is whether the instruction accurately states the law. AMI Crim. 2d 64.440

tracks the language of Arkansas Code Annotated § 5-64-440—trafficking a controlled

substance. Therefore, Harmon argues, the trial court did not have discretion to give a

nonmodel instruction.

       We will not reverse a trial court’s ruling on whether to submit a jury instruction

absent an abuse of discretion. Kinsey v. State, 2016 Ark. 393, at 9, 503 S.W.3d 772, 778. A

nonmodel jury instruction is to be given only when the model instruction does not

correctly state the law or there is no model instruction on the subject. Pokatilov v. State,

2017 Ark. 264, at 8, 526 S.W.3d 849, 856. Moreover, a trial court cannot modify a model

instruction unless it is clear that the model instruction incorrectly applies the law to the

facts. Moore v. State, 317 Ark. 630, 635, 882 S.W.2d 667, 669 (1994).

       We reiterate our long-standing rule that a trial court should not give a nonmodel

instruction unless the court concludes that the model instruction does not accurately state

the law. See, e.g., Fincham v. State, 2013 Ark. 204, at 5, 427 S.W.3d 643, 647. Here, the

model instruction on trafficking proffered by Harmon accurately states the law. It tracks

the trafficking statute, Ark. Code Ann. § 5-64-440, which does not include the purpose to

deliver factors. The AMCI 2d 64.440 “Note on Use” explains that this exclusion was

intentional:

              Possession with the purpose to deliver was added to trafficking in Act 529 of
       2013, section 4, and the legislation did not include the factors to be considered.
       Compare section 5 of Act 529 which lists factors with respect to Ark. Code Ann. §
       5-64-442 and Ark. Code Ann. § 5-64-420. The committee has followed Act 529 and
       has not included the factors in this instruction.

                                            13
We conclude that the trial court gave an erroneous instruction.

       The question then is whether that error is harmless. An appellant is not required to

demonstrate prejudice when the trial court gives an erroneous instruction involving the

trial mechanism to be used in deciding a civil or criminal case. Skinner v. R.J. Griffin & Co.,

313 Ark. 430, 434, 855 S.W.2d 913, 916 (1993). However, we also explained that “an

appellee may demonstrate that the giving of an erroneous instruction was harmless, and we

would affirm. Some examples of this are where the jury demonstrably was not misled

because the jury rejected the theory of the erroneous instruction, or where the erroneous

instruction was obviously cured by other correct instructions.” Id. at 435, 855 S.W.2d at

916 (internal citations omitted).

       We conclude that this erroneous instruction was obviously cured by other

instructions. The jury was instructed on the purpose-to-deliver factors—which they could

consider in the trafficking offense—in an instruction on the lesser-included offense of

possession with intent to deliver a few pages later. Harmon does not dispute that these

factors are legally accurate. The inclusion of these factors in the instruction on the

trafficking offense merely meant that that jurors would not have to flip back and forth

between instructions when considering the factors. Under these circumstances, we cannot

see how Harmon was prejudiced by the nonmodel trafficking instruction. Therefore, we

conclude that the giving of the nonmodel instruction was harmless error.

                                    E. Witness Testimony


                                              14
       Finally, Harmon argues that the trial court abused its discretion by allowing the

State, during the penalty phase of the trial, to play a recording of a drug purchase from

Harmon allegedly made by Shannon Daniels, a confidential informant who was not

present to testify. Harmon contends that this evidence was more prejudicial than probative

and should have been excluded under Arkansas Rule of Evidence 403.

       We review the trial court’s admission of evidence in the penalty phase of a trial for

abuse of discretion. MacKool v. State, 365 Ark. 416, 456, 231 S.W.3d 676, 706 (2006).

Evidence may be excluded if the probative value of the evidence is substantially outweighed

by the danger of unfair prejudice. Ark. R. Evid. 403. On appeal, Harmon merely restates

his claim below that this evidence was more prejudicial than probative. He fails to state

more than conclusory allegations, nor does he develop his argument. This court does not

consider arguments that are unsupported by convincing argument or sufficient citation to

legal authority. See, e.g., Armstrong v. State, 366 Ark. 105, 109, 233 S.W.3d 627, 631 (2006).

We find no abuse of discretion in the trial court’s admission of this testimony.

       Affirmed; court of appeals’ opinion vacated.

       BAKER, HART, and WOOD, JJ., dissent.

       RHONDA K. WOOD, Justice, dissenting. The Fourth Amendment prohibits the

media and other unauthorized third parties from accompanying law enforcement into a

home during execution of a warrant. Wilson v. Layne, 526 U.S. 603 (1999). The Wilson

opinion, written by Chief Justice Rehnquist and joined by Justices O’Connor, Scalia,



                                             15
Kennedy, Souter, Thomas, and Ginsburg, explained that media ride-alongs further no

legitimate law enforcement purpose and

       ignore the importance of the right to residential privacy at the core of the Fourth
       Amendment. Were such generalized law enforcement objectives themselves
       sufficient to trump the Fourth Amendment, the protections guaranteed by that
       Amendment’s text would be significantly watered down.

Id. at 612 (cleaned up).

       Despite Wilson’s clear holding, in 2015, HBO filmmakers accompanied the DEA

and the Twentieth Judicial District Drug Task Force while they executed a search warrant

at Harmon’s residence. The search warrant did not authorize the presence of any third

parties. Drug Task Force member Johnny Sowell testified that the filmmakers entered

Harmon’s home and surrounding premises. He stated that the filmmakers likely knew

about the search because either he or a DEA agent notified them. Sowell stated that he

often briefed the filmmakers on the task force’s operations so they could film them. This

search violated the Fourth Amendment.

       The record does not reflect that the State made any significant attempt to obtain or

retain the unconstitutionally created footage as evidence. The State did not even disclose

the ride-along until January 2017, one month before the scheduled jury trial. While the

circuit court did at first grant Harmon continuances, it placed the burden on Harmon to

locate the film footage. The film footage is relevant because, before the January 2017

disclosure of the ride-along, Harmon had filed a motion to suppress and challenged the

search on Fourth Amendment grounds. I believe it was error for the circuit court to place


                                            16
this burden on Harmon, particularly given the constitutional violation and Harmon’s

challenge to the search. For these reasons, I respectfully dissent.

       Our discovery rules require the State to disclose and permit inspection of “any

relevant material regarding . . . any specific searches and seizures.” Ark. R. Crim. P. 17.1(c).

The rules also provide that the circuit court “may require disclosure to defense counsel of

other relevant material and information upon a showing of materiality to the preparation

of the defense.” Ark. R. Crim. P. 17.4(a). When a party violates a discovery rule, the court

may exercise any of these options: order that party to permit the discovery or inspection of

materials not previously disclosed; grant a continuance; prohibit the party from

introducing the material; or enter another order that the court finds proper under the

circumstances. Ark. R. Crim. P. 19.7. It is within the circuit court’s discretion which

sanction to employ. Hicks v. State, 340 Ark. 605, 612–13, 12 S.W.3d 219, 224 (2000).

       This case does not involve a Fourth Amendment issue on appeal. But Wilson is

relevant because of Harmon’s stated purpose for the footage. Early in the case, Harmon

moved to suppress the fruits of the search, and the State filed a response. At that time, law

enforcement knew HBO had filmed the search. Yet the State did not inform Harmon of

the possible existence of the film footage until 2017, did not aggressively help him obtain

it, and did not fully disclose the names of everyone present until the day of trial. It was not

until the DEA agent’s proffered testimony at trial that the defense discovered the presence

of another HBO-affiliated person named “Cole.” The State had a duty to disclose Cole’s

presence well before when Harmon requested it during discovery. The DEA agent’s

                                              17
knowledge is imputed to the prosecution, and the State’s failure to disclose until the day of

trial constitutes a discovery violation.

       We have granted relief in similar cases. For example, we reversed and remanded for

a new trial when the State did not disclose a witness until the day of trial, even after the

defense’s timely discovery motion. Lewis v. State, 286 Ark. 372, 374, 691 S.W.2d 864, 865

(1985). We also reversed and remanded for a new trial when the State failed to disclose an

exculpatory statement in the possession of the police, reasoning as follows: “Even if the

statement was not in the prosecutor’s open file, the statement was imputed to the

prosecution and disclosure was required.” Lacy v. State, 272 Ark. 333, 335, 614 S.W.2d

235, 236 (1981). We also reversed and remanded for a new trial where, again, the State

disclosed on the day of trial adverse testimony of a witness. Williams v. State, 267 Ark. 527,

532, 593 S.W.2d 8, 11 (1980). Likewise, in this case, Harmon did not know about Cole’s

presence until the day of trial. This information, if provided earlier, would have given

Harmon another lead to locate the video footage.

       Even so, the burden to locate the footage should not have fallen on Harmon

exclusively. The circuit court’s ineffectual order directed only “whomever shall be in

possession and/or ownership” to turn over the footage. The court placed no affirmative

burden on the State. And, as the proffered testimony showed, the filmmakers did not just

stumble onto the scene. Law enforcement invited HBO to the raid. Indeed, the State’s

cooperation with HBO resulted in a special thanks in Meth Storm’s closing credits to the

then-elected prosecuting attorney and deputy prosecuting attorney handling Harmon’s

                                             18
case. It is startling that the majority gives no credence to the legitimate argument that HBO

would be more responsive to these favored entities as opposed to Harmon’s defense

counsel. Under Rule 17.4, the circuit court should have exercised its discretion and

ordered the State to obtain the footage, which but for the Fourth Amendment violation

would never have existed.

       I conclude these discovery violations entitle Harmon to a new trial. Without the

footage, one cannot say whether it would contain relevant or exculpatory evidence. The

court’s failure to require its disclosure—in the face of a constitutional violation—provides

sufficient grounds to reverse. The court failed to adequately address the State’s futile efforts

to turn over relevant information in the hands of its agents or in the hands of filmmakers

who were intimately involved with an unconstitutional search. If the footage could not be

located, after the State’s diligent and meaningful efforts, then Harmon should have been

free to discuss it during trial.

       BAKER and HART, JJ., join.

       Jeff Rosenzweig, for appellant.

       Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.




                                               19
