Ronald J. Brewer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RONALD J. BREWER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-887

May 11, 2005

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT

[NO. CR2003-940]

HON. JOHN FOGELMAN,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Ronald J. Brewer was convicted by a Craighead County jury of five offenses: (1) manufacture of a controlled substance (methamphetamine); (2) possession of drug paraphernalia with intent to manufacture methamphetamine; (3) possession of pseudoephedrine with intent to manufacture methamphetamine; (4) possession of methamphetamine with intent to deliver; (5) possession of drug paraphernalia with intent to use. He received an aggregate term of twenty-five years in the Arkansas Department of Correction. Appellant raises two points on appeal. He argues that the trial court erred in denying his motion to suppress a taped custodial statement that he gave to law enforcement officials, and also erred in denying his motion for a mistrial based on the trial judge's ex parte communication with members of the jury. We affirm.

In August 2003, law enforcement officials in Jonesboro, Arkansas, received a complaint from a local U-Haul facility indicating that its customers were experiencing chest pains and having difficulty breathing and that a strong chemical odor was present in the air.

Upon arriving at the scene, officials realized that a "meth lab" was in operation in the vicinity. Witnesses identified appellant as being at the scene, and officials arrested him on a warrant approximately one week later.

I. Failure to Suppress Appellant's Taped Statement

Although Arkansas appellate courts have held that a statement is presumptively involuntary if made while an accused is in custody, the statement can be admissible if the State meets its burden to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Winston v. State, 355 Ark. 11, 131 S.W.3d 333 (2003). This court makes an independent determination based upon the totality of the circumstances. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In reviewing the trial court's ruling, we will reverse it only if it is clearly against the preponderance of the evidence. Id.

It is evident from the record that appellant's taped statement was played for the jury and introduced into the record in this matter; however, it was neither transcribed and included in the record nor sent to us as a recording for review. Testimony from witnesses and statements by the trial judge indicate that certain portions of the original tape were suppressed, but we are unable to discern what those portions were or how they fit into context with the rest of the tape. It is well established that the courts will not presume prejudice, and we will not reverse the trial court's ruling absent a showing of prejudice. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). We hold that appellant made no showing of prejudice with regard to the taped statement because he failed to put the actual text of the statement he is contesting before us for review. The burden of providing a record sufficient to demonstrate error is upon the appellant. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). Accordingly, we affirm on this point.

II. Denial of Motion for Mistrial

A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction to the jury. DeAsis v. State, __ Ark. __, __ S.W.3d __ (Jan. 13, 2005). The decision to grant or deny a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Id. A party seeking a mistrial on the basis of ex parte communication bears the burden of demonstrating that a reasonable possibility of prejudice resulted from the alleged improper conduct. See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). Reversible error cannot lie upon the allegation alone; the complaining party must provide something more than mere allegation to establish prejudice. Id.

The ex parte communication at issue occurred during a break in the trial, at which time the trial judge walked through a room in which the jurors were assembling to deliver muffins to them. As the trial judge walked into the room, one first-time juror posed a "hypothetical question" to him. She asked generally what type of decision jurors make, in effect whether it was just "guilty" or "not guilty." The trial judge responded, stating that if a jury finds a defendant guilty, then they move into a sentencing phase, during which they determine the defendant's sentence. Appellant's counsel noticed the encounter and confronted the trial judge about it, at which time the trial judge immediately went on the record and described his account of the conversation. The trial judge then allowed appellant's counsel to question the jurors extensively on the record about the incident and to make an argument regarding the issue directly to the jury. Additionally, the trial judge admonished the jury regarding the ex parte communication at the request of appellant's counsel.

Appellant refers to the great influence a trial judge has on a jury, and quotes the Arkansas Supreme Court's holding that a trial judge must "refrain from impatient remarks or unnecessary comments which might indicate his personal feelings or which might tend to influence the minds of jurors to the prejudice of a litigant." Green v. State, 343 Ark. 244, 252, 33 S.W.3d 485, 490 (2000). The supreme court further stated that "[i]n a jury trial there is probably no factor that makes a more indelible impression on a juror than the attitudes, statements, and opinions of the trial judge. To them, his word is the law." Id. Appellant maintains that the juror's question was not merely hypothetical, but rather was related to the sentencing of a defendant that had already been found guilty. He claims that merely by answering the question, the trial judge prejudiced him because there was a chance that the trial would never reach the sentencing phase in the event he was found to be innocent of the charges. Appellant contends that the judge "gave the jury the unmistakable message that it is acceptable to circumvent and violate the court's precautionary instruction [not to discuss the case] if it is done under the pretext of being `hypothetical'." Appellant argues that even though a trial judge gave a curative instruction, the jury may have been influenced and that the impression made could not be eradicated by any explanation or curative instruction. See Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978).

Canon number two of the Arkansas Code of Judicial Conduct states that a judge shall avoid impropriety and the appearance of impropriety in all his activities and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Appellant maintains that the trial judge's act of being in the room with jurors, albeit for the initial purpose of delivering muffins, created a situation whereby improper communication between himself and jurors could, and did, occur. Canon 3(B)(7) states in part that a judge shall not:

. . . . initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

The ex parte communication between the trial judge and jurors was neither required for scheduling or administrative purposes nor was it for an authorized emergency that did not deal with substantive matters or issues on the merits. The record confirms that the juror's question was not a substantive one about this particular case, but rather a procedural question regarding the jury's responsibilities with regard to all bifurcated cases. The trial judge's response to that question had no bearing on this specific matter, but rather was an explanation of the bifurcated nature of our jury-trial system. While the proper action by the trial judge would have been to not respond at all, other than perhaps to have directed the juror to ask the question at the proper time during open court, appellant has failed to meet his burden to show that he was prejudiced by the trial judge's answer to the question. The trial judge immediately went on the record to explain the situation, allowed appellant's counsel to question the jurors in detail and then make an impassioned commentary to them, and gave the requested admonition to the jury. We have held that an admonition is the proper remedy where the assertion of prejudice is highly speculative. Smith v. State, 85 Ark. App. 475, 157 S.W.3d 566 (2004). In this case there was a request for an admonition that was granted and made by the judge to the jury, in addition to the other explanatory and remedial measures taken by the trial judge. We hold that the trial judge did not abuse his discretion in denying appellant's motion for a mistrial, and we affirm on this point.

Affirmed.

Pittman, C.J., and Bird, J., agree.