Narvell Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

NARVELL JOHNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 05-82

October 5, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

[NO. CR 03-3342]

HONORABLE TIMOTHY DAVIS FOX,

JUDGE

AFFIRMED

Terry Crabtree, Judge

In a jury trial, appellant Narvell Johnson was found guilty of aggravated robbery, fleeing, and theft of property for which he was sentenced as an habitual offender to cumulative sentences of sixty years in prison. Four issues are advanced for the reversal of his convictions. Appellant contends that: (1) the trial court erred in refusing to grant a mistrial after hearing testimony regarding witnesses speaking to one another; (2) the trial court erred in denying a mistrial after trial counsel's status as a public defender was revealed to the jury; (3) the trial court abused its discretion in refusing to exclude evidence or grant a continuance based on a discovery violation; and (4) the trial court erred in admitting an audio tape into evidence that was not properly authenticated. We affirm.

It is necessary to set out relevant portions of the testimony so that the issues can be understood. On July 26, 2003, Desha Rose was working at a Merle Norman store located in a strip mall in North Little Rock. At around 7:00 p.m., an individual wearing a light-colored tee-shirt came into the store and asked Ms. Rose if the store sold crystal. She answered in the negative and directed him to the Hallmark store next door that was connected to Merle Norman in such a way that customers could go back and forth between the stores. This same individual came back into Merle

Norman a short time later wearing a burgundy with navy and gold polo-style shirt with a light-colored tee-shirt underneath, faded jeans, a ball cap, and sunglasses. He was talking on a cell phone, and Ms. Rose noticed that the man was missing a tooth. After inquiring about the manager and makeup for his wife, the man pulled out a small, silver handgun that had etching on the metal and black tape on the handle. He placed the gun to Ms. Rose's side and demanded money from the register. Ms. Rose complied, handing him some $200 in cash. The man ordered Ms. Rose to a back room. She escaped through a door there that accessed the Hallmark store. Ms. Rose positively identified appellant as the robber in a photographic lineup after the incident and again at trial.

Dawn Gillespie was working at the Hallmark store that evening, and she recalled waiting on a man who was looking at crystal. She said that the man was wearing faded jeans and a tee-shirt that said "Emerald" on the back. The man left, but she saw him back inside the store a bit later, wearing different clothing. Ms. Gillespie said that he had on a reddish-patterned polo shirt, light-colored jeans, a hat, and sunglasses. She thought that he might be looking at the crystal again, but she did not see him in that area. She thought to look in Merle Norman, and as she approached she heard the cash bins "slapping." She turned the corner and saw the man at the cash register. She was by the door at this point, and he started toward her. She backed off and let him run out of the door. Ms.Gillespie was not able to identify anyone as the perpetrator in a photographic lineup, and she was not able to identify appellant at trial.

James Johnson was shopping at an office supply store in the strip mall. While in the parking lot, he saw a man running fast towards the post office at the south end of the mall. He testified that

at the time he was able to describe the vehicle this person got into and the license plate number, but he could recall neither as of the time of trial. He called 911 and relayed the description of the vehicle and the license plate number.

Chris Gardner, a patrolman with the North Little Rock Police Department, heard a dispatchabout the armed robbery at the Merle Norman store. He positioned himself on an on-ramp to I-30 in anticipation that the expressway might be used as an escape route. He saw the suspect vehicle, a grayish-blue station wagon, followed it, and confirmed the reported license-plate number, 005 GRI. The vehicle sped up when Gardner pulled behind and quickly exited onto Roosevelt Road in Little Rock. Although Gardner activated his blue lights and siren, the vehicle continued onward through the residential area, speeding and running a red light. The vehicle stopped abruptly at the intersection of Ives Walk Road and Rock Street. It had been placed in reverse, and it struck the officer's patrol car. Both the driver and the passenger alighted from the vehicle. Gardner pursued the driver but lost sight of him after the driver ran around the corner of a building in an apartment complex. Next, a woman who lived in the apartment at 2913 Cumberland alerted Gardner that a black male had kicked in the door of her apartment, shed some clothing, and had run out of the back of the apartment. Gardner saw the clothing on the floor, a pair of faded jeans and a tee-shirt with "Emerald" on it.

Victoria Watson, the resident of 2913 Cumberland, identified appellant as the man who had broken into her apartment that night. She said that appellant took off his outer clothing and put money in the shorts that he had on under his jeans. She said that he had on another tee-shirt under the one he had been wearing.

Appellant was apprehended after a foot chase by a number of Little Rock police officers in the area between Main and Scott Streets. At the scene, Officer Gardner identified appellant as the driver of the station wagon and the person who had fled from the vehicle. A ball cap, cell phone, maroon shirt, gun, and sunglasses were recovered from the vehicle. Ms. Rose identified these items as those that were worn or used by appellant during the commission of the robbery.

Appellant's first argument is that the trial court erred by refusing to declare a mistrial after hearing evidence that the witnesses had been speaking to one another in violation of the witness-exclusion provisions of Ark. R. Evid. P. 615. This matter first came up at trial during the testimony of Officer Gardner when appellant's counsel informed the court that she had been advised byappellant's mother that the witnesses were discussing the case in the hallway. The court directed that the witnesses be told that they were not to discuss the case. The matter came up again while the court was reading the jury instructions, and later the court held a hearing. Kenneth Johnson, appellant's brother, testified that he had heard the State's witnesses talking about the case. He could provide no specific details about their conversations, but he insisted that the witnesses were discussing the case. Appellant's mother, Delores Johnson, testified that she had seen the prosecutors take the witnesses into a room and that later the witnesses were sitting in the hallway laughing and talking about the case. The trial court found no misconduct.1

A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). The circuit court has wide discretion in granting or denying a motion for mistrial, and absent an abuse of that discretion, the circuit court's decision will not be disturbed on appeal. Parker v. State, ___ Ark. ___, 127 S.W.3d 486 (2004). Appellant's mother and brother could offer no details about the witnesses' supposed conversations. In finding no misconduct, the trial court could have viewed their testimony with skepticism, given their relationship to appellant. Thus, it remains speculative as to whether a violation even occurred. This distinguishes this case from the one relied upon by appellant, Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987), where the violation of Rule 615 was admitted. Under these circumstances, we find no abuse of discretion in the trial court's denial of the mistrial motion.

At trial, appellant's brother, Kenneth Johnson, testified that appellant was working as a laborer for him in his remodeling business at the time of the robbery and that he had dropped appellant off from work just prior to appellant's arrest. On direct examination, Mr. Johnson wasasked why he had not told the police about this, and he responded that he had not known whom to speak to but that he had informed trial counsel about the alibi. This subject was explored by the State during its cross-examination, during which time Mr. Johnson referred to trial counsel as a "public defender." Appellant contends that the trial court erred by not granting a mistrial after counsel had been labeled as a public defender. We first note that appellant's motion for a mistrial was not timely, as it was not voiced until much later into the State's cross-examination of the witness. See Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). The law is settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Similarly, motions for mistrial must be made at the first opportunity. Id. Notwithstanding this procedural bar, our supreme court has addressed this issue on two occasions. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998); Vaughn v. State, 289 Ark. 31, 709 S.W.2d 73 (1986). In both decisions, the court recognized that is the better practice not to identify counsel as a public defender, but it held that any prejudice resulting from such a comment is speculative and does not warrant the drastic remedy of a mistrial. It is also something that can be dealt with by an admonition to the jury. Landreth, supra. However, appellant did not request one and that failure cannot inure to his benefit. See Vaughn, supra.

During opening statement, the prosecutor stated that the Emerald tee-shirt and jeans that appellant would be described as wearing at the Merle Norman and Hallmark stores were found in the apartment where appellant removed his clothing. After both the State and appellant concluded opening statements, appellant moved for the exclusion of that clothing or a continuance based on a discovery violation. Appellant contended that he had been told that this particular clothing had been found in the station wagon, not the apartment. The prosecutor responded that appellant's counsel had been advised in a telephone conversation that the clothing had been discovered by Officer Gardner in the apartment. The trial court denied appellant's requests to either exclude the evidence or grant a continuance. Appellant contends that the trial court erred in its ruling as his third point on appeal.

Once again, appellant failed to bring this matter to the trial court's attention at the first opportunity because he did not do so until after the conclusion of opening statements. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). The law is clear that objections based on purported discovery violations must be made at the first opportunity. Goerge v. State, ___ Ark. ___, 530 S.W.3d 195 (2004); Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000); Brooks v. State, 76 Ark. App. 164, 61 S.W.3d 916 (2001). Where the allegation of error concerns a statement made by the prosecutor during argument, the defendant must make an immediate objection to the statement in order to preserve the allegation for appeal. Smith v. State, supra. Even had this issue been preserved for appeal, appellant's argument is not well-taken. Appellant made no claim that he had not been provided with the names of the State's witnesses, which included the officers involved, as well as Ms. Watson, who resided in the apartment. Our discovery rules do not require the State to disclose the substance of their expected testimony. Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996). Counsel could have ascertained where the clothing was found had the witnesses been interviewed. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). A defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000).

Appellant's final argument is that the trial court erred in allowing the State to introduce the tape-recording of the 911 call placed by James Johnson. Appellant contends that the tape-recording was inadmissible because it was not properly authenticated. We disagree. The requirement of authentication is satisfied by evidence sufficient to support a finding that the mater in question is what its proponent claims it to be. Ark. R. Evid. 901(a). As for voice identification, Rule 901(b)(5) provides that authentication can be achieved, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Here, Mr. Johnson listened to portions of the tape and testified that he recognized his voice on the tape. He also said that, although parts of thetape were muffled and distorted, it sounded like the substance of the conversation he had with the dispatcher. We also note that the caller was identified as "Mr. Johnson" in the transcript of the recording. The standard of review on admission of evidence is abuse of discretion. O'Neal v. State, ___ Ark. ___, 285 S.W.3d 353 (2004). Abuse of discretion is a high threshold that does not simply require error in the trial court's decision, but requires the trial court to act improvidently, thoughtlessly, or without due consideration. Grant v. State, ___ Ark. ___, 285 S.W.3d 353 (2004).

We find no abuse of discretion here.

Affirmed.

Robbins and Griffen, JJ., agree.

1 Appellant also made a claim of juror misconduct which was also the subject of testimony at the hearing. The trial court found no such misconduct, but appellant does not present any argument on appeal challenging that aspect of the trial court's ruling. Appellant's argument on appeal focuses exclusively on witness misconduct.