Jeanette Raylene Hall v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-172

December 13, 2000

JEANETTE RAYLENE HALL APPEAL FROM WASHINGTON COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE WILLIAM A. STOREY

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

In a jury trial, Jeanette Raylene Hall was convicted of two counts of delivery of a controlled substance (methamphetamine), and possession of drug paraphernalia, for which she was sentenced to a total of ten years in prison. On appeal, she contends that the trial court erred in admitting the transcript of a tape recording and in failing to grant a mistrial after commenting on the evidence. We find no error and affirm.

The appellant's convictions were based on evidence that she sold methamphetamine to an informant, David Price, on both February 4 and February 9, 1999. The informant testified that onboth occasions he purchased a gram of methamphetamine for $100.00. During the transactions, the informant was equipped with a body microphone that recorded the conversations and allowed the investigating officers to monitor them. Transcripts of the recordings were prepared by one of the investigating officers and a secretary. The issues on appeal concern the transaction that occurred on February 4.

Appellant first argues that the trial court erred in permit ting a transcript of the tape recording into evidence. She contends that the transcript refers to the word "gram," and she insists that this word cannot be heard on the tape. Thus it is her argument that the transcript does not accurately reflect what was said on the tape. The tape itself, however, has not been made a part of the record on appeal. Without it we cannot possibly determine whether the trial court abused its discretion by admitting the transcript because it was not an accurate reflection of the recording. It is the appellant's duty to bring up a record sufficient to demonstrate error. Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992). We can find no error.

Appellant's remaining arguments concern a comment that was made when the trial judge ruled on the admissibility of the transcript. The judge, after listening to the tape, said that "the transcript of what does seem to be audible is consistent with what I've heard." Appellant argues that this remark constitutes animpermissible comment on the evidence and that the trial court erred in denying her motion for a mistrial.

A mistrial is a drastic remedy and appropriate only when the error is beyond repair and cannot be corrected by any curative relief. Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999). Since the trial judge is in a superior position to assess the possibility of prejudice, he is vested with great discretion in acting on motions for mistrial, and this court will reverse only where that discretion is manifestly abused. Hardin v. State, 45 Ark. App. 149, 872 S.W.2d 861 (1994).

In this case, appellant initially declined the trial judge's offer to admonish the jury, but later the judge on his own initiative stated to the jury, "You should disregard my comments that I have made when the tape and the earlier transcript were admitted into evidence .... You can give the tape and the transcript whatever weight you choose to give it when you begin your deliberations." We believe that any possible error in the earlier comment was cured by this admonition, which in effect instructed the jury to disregard the previous remark and reach its own conclusion. Thus, appellant cannot now claim any prejudice. See Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

Affirmed.

Bird and Stroud, JJ., agree.