Mark Allen Bray v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION JUDGE JOSEPHINE LINKER HART

DIVISION I

MARK ALLEN BRAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-278

October 4, 2000

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR-98-439-1]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

A jury found Mark Allen Bray guilty of criminal attempt to commit capital murder and sentenced him to serve a total of 264 months in the Arkansas Department of Correction. For reversal, appellant argues that the trial court erred by denying his motion for a mistrial. We disagree with appellant and affirm.

On December 1, 1998, Lieutenant Melvin Steed of the Garland County Sheriff's Office observed a vehicle, with a Mississippi tag, being driven in a suspicious manner. He stopped the vehicle, which had three passengers, including appellant, who was driving. An Arkansas Criminal Information Center (ACIC) search revealed that Nevada had an outstanding felony warrant for appellant's arrest. Steed, accordingly, attempted to place appellant under arrest. Appellant was told to exit the vehicle and place his hands on the car. Prior to placing the handcuffs on appellant, Steed was struck by appellant and knocked tothe ground. During the ensuing struggle, appellant grabbed Steed's weapon and threatened to kill

him. The two passengers in the vehicle heard Steed's call for help and came to his aid by helping secure appellant until another police officer arrived to arrest appellant. The following day, a felony information was filed charging appellant with criminal attempt to commit capital murder of a police officer.

The case proceeded to trial, and during appellant's closing argument, his counsel stated to the jury:

Mr. Bray was traveling, and I think this is important, in a car registered in his name. He had a valid Mississippi driver's license in his name. There was not an alias. He wasn't trying all that hard not to be found out. He wasn't known as John Doe, Joe Smith. He was Mark Allen Bray with a valid Mississippi license in a car registered in his name. A car that he was traveling in that, by the way, had no weapons in it. There was no firearms.

(emphasis added). The State, in response, objected and during a bench conference argued that this argument was improper because there had been no evidence regarding whether there was a firearm located in the vehicle. At that time, the following exchange took place at the bench:

DEFENSE COUNSEL: I think that he's - I don't think they've ever seen any weapons.

COURT: Well, that doesn't mean there weren't any, Mr. Oliver . . .

DEFENSE COUNSEL: Well, are they going to say there were?

COURT: No.

DEFENSE COUNSEL: Well, then . . .

COURT: I mean, you can argue there weren't any because there's been no testimony.

DEFENSE COUNSEL: Well, now they've made a big issue out of it and they're going to think "Oh, my God, there's a weapon in there." I think this is mistrial material for her to do that because they don't have any evidence of any weapons but they're objecting to me talking about it. We've done it in front of the jury. They're going to think that there must have been a weapon then. I think we've got a mistrial.

COURT: Well, I'm going to disagree with you.

DEFENSE COUNSEL: Well, I mean, by this objection they suggest that there was a weapon. That's what bothers me about it. When there wasn't.

COURT: Well, but the statement that led to the objection was made by you when there was no testimony that there was no weapon in there.

DEFENSE COUNSEL: Well, how could there -- if there's no testimony there's no weapon -- there is no testimony. I can get up there and say there's no testimony there's a weapon, or a firearm. What difference does it make?

COURT: Because I don't know if there was a weapon.

DEFENSE COUNSEL: Well, how about there was no testimony there was any gun or weapon in that vehicle.

COURT: That's just a valid statement.

PROSECUTOR: Yeah, that's a valid statement.

DEFENSE COUNSEL: But, now, I still think that I'm going to have to, for the record, move for a mistrial. She's made an issue out of something I can't prove and they're going to think we're trying to hide something.

COURT: Well, I'm going to deny the motion. You canrefer to the fact that there was no testimony that there was any weapon in the vehicle, but you can't make the statement that there was no weapon in the vehicle.

Appellant's counsel thereupon told the jury, "The bottom line is there's no testimony there was any weapons in that car. No testimony there was any firearm, no testimony there was any guns, not that effect. I think that's important. . . ." Nevertheless, appellant was convicted and from that conviction comes this appeal.

Our review of denial of a motion of a mistrial is well-settled. Recently, our supreme court in Engram v. State, 341 Ark. 196, 205, 15 S.W.3d 678, 683 (2000) stated:

We have held that a trial court has wide latitude in its discretion to grant or deny a mistrial and will not be reversed absent an abuse of that discretion. . . . Moreover, a mistrial should be granted only where an admonition could not cure any prejudice. . . . Finally, this court will not reverse in the absence of a showing of manifest prejudice. . . .

(citations omitted).

We conclude that the trial court did not abuse its discretion in denying appellant's mistrial motion. The oft-stated rule is that "closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom." Leaks v. State, 339 Ark. 348, 357, 5 S.W.3d 448, 454 (1999) (citing Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993); Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990)). The trial court agreed with the State's objection, but allowed appellant to inform the jury that there was no testimony that a weapon was found in the vehicle. Appellant, however, argues that the nature of the remarks at the benchconference, which was held in the jury's presence, caused the jurors to believe a weapon was in fact in that vehicle, and thus, the resulting prejudice to appellant necessitated a new trial. Because the jury was told that, in fact, there was no evidence that there was a weapon in the vehicle, we do not believe that the jury was left with a settled opinion that there was a weapon in the vehicle. Finally, appellant did not timely request a jury admonition, and we are not disposed to reverse absent such a request.

Affirmed.

JENNINGS and GRIFFEN, JJ., agree.