A police officer's glimpse of a defendant with a pistol in his lap is not sufficient proof that the man has broken the law, even if the gun was Little Rock Police Chief Kenton Buckner's missing service weapon, Pulaski County Circuit Judge Wendell Griffen ruled Thursday.
Griffen cleared Edward McKay Williams of a felony theft-by-receiving charge Thursday after a 90-minute nonjury trial that included Buckner as a witness. The charge carries up to six years in prison.
Williams did not testify Thursday, and he jogged from the courtroom once the judge said he was free to leave.
Buckner spent about 18 minutes on the witness stand answering questions, many of them about how his city-issued firearm disappeared just short of his first anniversary as the city's 35th police chief. He said the gun vanished sometime over Memorial Day weekend in 2015 while he was moving into a new home.
The chief reported the .40-caliber Glock 27 semiautomatic missing, possibly stolen, on June 8, 2015.
Officers found the weapon about 10 weeks later in the back seat of a car that Williams and a co-defendant were sitting in. By that time, Buckner had received a written reprimand from City Manager Bruce Moore over its loss, and Buckner had reimbursed the city $458 for its replacement.
No one has ever been charged with stealing the weapon, and Buckner testified Thursday that he didn't know what had happened to it or how it had ended up in the hands of strangers. He told the judge that when he reported the gun missing, he described it as "lost, possibly stolen."
Buckner didn't have that pistol in court, but at the prompting of prosecutors, pulled out his current service weapon so they could show the judge how police weapons are engraved with the likeness of a department badge on the right side of the metal slide near the mouth of the barrel.
That etching was a key piece of the prosecution's case. Deputy prosecutor Mike Wright told the judge that seeing the distinctive emblem on a gun would give anybody who saw the weapon reason to think it was stolen or belonged to someone else.
Theft by receiving makes possession of property illegal if the possessor knows or should suspect that the property is stolen.
The marked barrel is not sufficient to prove that Williams should have been suspicious of the gun, defense attorney Don Thompson told the judge.
"Just because there's an emblem on it, it doesn't give rise to [the conclusion] it's stolen," he said. "They're just throwing a little bit [of evidence] out there and saying it's enough to convict him."
There's no law against owning former police weapons, Thompson said. Retired Little Rock officers are regularly allowed to keep their service weapons, and those owners are not prohibited from selling or giving away those weapons, he said.
But the defense argument that appeared to resound the most with the judge was the question of whether Williams was "in control" of the gun.
In order to convict someone of the charge, prosecutors have to prove that the defendant "received, retained or disposed of" the property in question, Thompson said, citing the criminal statute Arkansas Code 5-36-106.
The public defender told the judge that at best prosecutors can prove only that Williams had the gun for at most 30 seconds.
The weapon was found in a backpack in the back seat of the vehicle, and police arrested Williams just after he got out of the car, which further distances him from the gun, Thompson said.
Just touching stolen goods shouldn't be considered a criminal act, Thompson argued, comparing Williams to a shopper at a garage sale who unwittingly handles stolen goods, then is arrested for browsing.
"The mere touching of the weapon does not in and of itself constitute" theft by receiving, the judge agreed. "The court is going to find the defendant not guilty."
The judge described Williams' possession of the weapon as "inexplicable," but said he didn't have enough evidence to know what Williams was doing with the gun for the brief time police saw him with it.
Patrol officer James Phillips testified that he saw the gun in a man's lap when he was called to investigate a complaint about a suspicious person in a car in front of Elegant Accents Jewelers at the Shackleford Crossings shopping center on Shackleford Road in Little Rock.
Phillips testified that he parked behind the vehicle and walked up to the passenger side. Loud music was blaring from the car, and the occupants didn't see him, he told the judge.
When he looked into the car, he could see the driver, identified later as Williams, counting money with a small black pistol in his lap.
The passenger, co-defendant Nathaniel Mitchell Sullivan, was talking on a phone, with a black and silver gun in his lap.
"When I realized they didn't see me, I drew my weapon and backed up to my patrol vehicle" to wait for backup officers, he said.
Police could smell marijuana in the car, so they took the men into custody, Phillips said. Police found a small amount of marijuana on Sullivan and more marijuana in the backpack that contained the chief's gun, officers reported.
Asked to estimate how much time he took looking into the car, Phillips said it was less than a minute but more than 30 seconds. He said he had to take a few seconds to assess what he was seeing before he backed away from the car.
Sullivan, 21, accepted a probated sentence in November 2015 after pleading guilty to the same theft-by-receiving charge for having the chief's gun.
According to police testimony Thursday, officers had seen him in the car with another stolen gun, a .40-caliber Smith & Wesson. That pistol, belonging to James Haley, was found under Sullivan's car seat when police arrested him, officers said.
Thursday's bench trial began with the judge saying he was prepared to order Buckner's arrest when the chief was not in court by the time Griffen was ready to begin the trial, about 9:51 a.m. Prosecutors said Buckner had told them that he could not attend the trial because he was at a Civil Service Commission meeting.
The judge described Buckner's absence as defiance of his specific order to the chief to be in court at 8:30 a.m. In October, Griffen had told all police witnesses, including Buckner, to be in court Thursday.
Since Buckner is the victim in the case, prosecutors could not move forward without him, the judge said.
Griffen told prosecutors that he would give them the same courtesy he offers to anyone who has a missing witness. Griffen said they could have until the conclusion of his daily proceedings to have Buckner in attendance or he would order sheriff's deputies to arrest the chief and transport him to court.
"I can either have him come on his own. Or I can send the sheriff," he said. "Which I will do. It would not be right to treat the chief of police different than anyone else."
The judge took a brief recess at 9:58 a.m., and Buckner arrived in court about 22 minutes later.
He told prosecutors that he had misunderstood their instructions about when the trial would begin. The chief said his understanding was that the proceedings would start at 1:30 p.m., due to the length of the judge's docket, and that what he had intended to communicate to prosecutors was that he would not be in court Thursday morning.
"I don't want the judge to think I just blew this off," Buckner told chief deputy prosecutor John Johnson.
Griffen had been critical of the Police Department in that October hearing, which had been the original setting for Williams' trial.
Griffen said he was forced to delay those proceedings because police were late in turning over potentially significant evidence, despite the case being a year old by then.
That evidence, which did not come into play at Thursday's trial, was not released by the department until the day before the October trial date, the judge said. A disclosure that late did not give the defense sufficient time to review the evidence in time for trial, Griffen said then.
Metro on 01/27/2017