Mitchell v. State

Derrick MITCHELL v. STATE of Arkansas

CR 95-439                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 16, 1996


1.   Criminal procedure -- directed verdict motion must state
     specific grounds for motion. -- Due to a lack of specificity
     in his motion for a directed verdict following the State's
     case, where he merely stated in general terms that he did not
     believe that there was sufficient evidence to justify the
     charge, appellant failed to preserve for review his argument
     that there was insufficient evidence to support his conviction
     for first-degree murder; a motion for directed verdict in a
     criminal case must include the specific ground for the motion;
     it must be sufficiently specific to apprise the circuit court
     of the particular point raised.

2.   Criminal law -- defendant in criminal case is ordinarily
     presumed to be mentally competent to stand trial -- test for
     determining if accused is competent. -- A defendant in a
     criminal case is ordinarily presumed to be mentally competent
     to stand trial, and the burden of proving incompetence is on
     that defendant; the test for determining if an accused is
     competent to stand trial is whether he is aware of the nature
     of the charges against him and is capable of cooperating
     effectively with his attorney in the preparation of his
     defense.

3.   Criminal law -- competency to stand trial -- substantial
     evidence supported circuit court's ruling. -- Where appellant
     was evaluated and found to be of average or low intelligence
     but able to understand the legal proceedings against him and
     to assist effectively in his own defense; the evaluation noted
     that other than appellant's own assertion that he was
     possessed by a demon at the time of the shooting, there were
     no other symptoms of a mental disorder at that time; the
     psychologist who was in charge of the evaluation concluded
     that the results of a personality test were inconclusive
     because appellant either did not read the questions, answered
     them randomly, or answered them in such a way as to over-
     report symptoms; the psychologist concluded that appellant was
     competent to stand trial; and appellant offered no expert
     testimony to rebut these opinions; the supreme court held that
     substantial evidence supported the circuit court's ruling of
     competency to stand trial.

4.   Jury -- appellant had burden of proving systematic exclusion
     of members of his racial group from venire -- elements of
     prima facie showing of systematic exclusion. -- Appellant had
     the burden of proving the systematic exclusion of members of
     his racial group from the venire; to make a prima facie
     showing of systematic exclusion, appellant had to establish
     that (1) the group allegedly excluded was a distinctive group
     in the community; (2) the representation of this group in the
     venire was not fair and reasonable in relation to the number
     of such persons in the community; and (3) the
     underrepresentation was due to systematic exclusion; only
     after appellant made his prima facie case by establishing
     these three elements could the burden shift to the State to
     justify its procedure.

5.   Jury -- selection process -- mere showing that venire is not
     racially representative will not make prima facie showing of
     racial discrimination. -- When the jury venire is drawn by
     random selection, the mere showing that it is not
     representative of the racial composition of the population
     will not make a prima facie showing of racial discrimination. 

6.   Jury -- selection process -- appellant did not meet test of
     prima facie showing of racial discrimination. -- Where there
     was no dispute that blacks represented a distinctive group in
     the community, but appellant did not establish the second and
     third elements of the test of a prima facie showing of racial
     discrimination in the jury selection process, failing to offer
     statistical proof of the racial composition of the community
     or of the venire and completely failing to offer evidence of
     systematic exclusion, the supreme court held that there was no
     prima facie case, and, therefore, the burden never shifted to
     the State to justify its procedure; moreover, two blacks sat
     on appellant's jury; the circuit court correctly denied
     appellant's motion to quash.

7.   Jury -- Batson challenge -- procedure to be followed. -- The
     following procedure is to be followed when a Batson objection
     is raised: first, the defendant must make a prima facie case
     that racial discrimination is the basis of a juror challenge; 
     in the event that the defendant makes a prima facie case, the
     State has the burden of showing that the challenge was not
     based upon race; only if the defendant makes a prima facie
     case and the State fails to give a racially neutral reason for
     the challenge is the court required to conduct a sensitive
     inquiry.

8.   Jury -- Batson challenge -- elements of prima facie case that
     racial discrimination is basis of juror challenge -- standard
     of review. -- A prima facie case that racial discrimination is
     the basis of a juror challenge may be established by (1)
     showing that the totality of the relevant facts gives rise to
     an inference of discriminatory purpose, (2) demonstrating
     total or seriously disproportionate exclusion of blacks from
     the jury, or (3) showing a pattern of strikes, questions, or
     statements by a prosecuting attorney during voir dire; the
     standard of review for reversal of a circuit court's Batson
     ruling is whether the court's findings are clearly against the
     preponderance of the evidence.

9.   Jury -- Batson challenge -- appellant did not make prima facie
     case. -- Appellant did not make a prima facie case of racial
     discrimination, having failed to raise an inference of
     discrimination or to prove a disproportionate exclusion of
     blacks from the jury or a pattern of strikes; it was unclear
     from the record which party excluded which jurors, except in
     one instance; moreover, the fact that one black member is
     struck from the jury, by itself, is not sufficient to make a
     prima facie case.

10.  Jury -- discrimination -- presence of minority members on jury
     not determinative but significant -- State's explanation for
     challenge was racially neutral. -- The presence of minority
     members on the jury, while by no means determinative of the
     question of whether discrimination occurred, is significant;
     the best answer the State can have to a charge of
     discrimination is to point to a jury which has black members;
     in the present case, even if a prima facie case had been
     proven, the State's explanation for the challenge was racially
     neutral, and the circuit court was well within its discretion
     to deny the Batson challenge.

11.  Trial -- exclusion of witnesses at trial -- victim allowed to
     remain in courtroom -- appellant failed to show how fairness
     was jeopardized. -- Where appellant failed to show how
     fairness was jeopardized in his trial by the presence of one
     of his victims, the supreme court concluded that the circuit
     court did not err by permitting the victim to attend
     appellant's trial.

12.  Appeal & error -- admission of autopsy photograph -- issue not
     preserved for review. -- Where appellant contended that the
     admission into evidence of the nude autopsy photograph of a
     shooting victim was prejudicial to his case and constituted
     error by the circuit court, the supreme court held that the
     issue was not preserved for review because the photograph at
     issue was not included in either the record or the abstract;
     it was impossible for the appellate court to determine the
     degree of prejudice because the photograph in question was not
     before it. 


     Appeal from Canway Circuit Court; Paul E. Danielson, Judge;
affirmed.
     Michael L. Allison, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.Associate Justice Robert L. Brown
January 16, 1996






DERRICK MITCHELL,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 95-439




APPEAL FROM THE CONWAY COUNTY
CIRCUIT COURT,
NO. CR 94-1 B,
HON. PAUL E. DANIELSON, JUDGE,




AFFIRMED.






     Appellant Derrick Mitchell was tried and convicted of three
offenses arising out of a shooting incident in Union Chapel,
including first-degree murder.  He appeals on six grounds.  We hold
that none of the points of appeal has merit, and we affirm.
     During the early morning hours of January 8, 1994, a fight
broke out at a party at Sonny's Place in Union Chapel.  In order to
stop the fighting, an individual named Michael Clemons fired at
least one shot from his pistol at the ceiling, and the fighting
stopped.  Hearing the shots, appellant Mitchell kicked in the door
at Sonny's Place and brandished a fully automatic Mac II nine
millimeter pistol.  According to one witness, he said: "You ...
want to play bad, I'm the baddest thing around."  He started
shooting and sprayed the ceiling and wall with gunfire.  According
to Shalla Criswell, she heard the shooting stop but when she and
Felicia Payne came to the bedroom door, Mitchell opened fire again. 
Shalla Criswell was wounded in the side, and Felicia Payne was shot
in the abdomen and later died as a result of that wound.  According
to Criswell, after the shooting Mitchell said: "I got the bitch,"
referring to Felicia Payne.
     During a mental health evaluation before trial, Mitchell
claimed that he had been possessed by a demon at the time of the
shooting.  He was found fit to stand trial.  At trial, he admitted
shooting the victims but offered a defense.  He claimed that he was
inside Sonny's Place when a door slammed, and he felt the gun go
off.  He did not remember firing it himself.  He blamed his memory
loss on intoxication.  He was convicted of first-degree murder,
first-degree battery, and aggravated assault and received 40 years,
20 years, and 6 years, respectively.  The circuit court ordered
that the sentences be served consecutively.
     Mitchell asserts that there was insufficient evidence to
support his conviction for first-degree murder, and we consider
this point initially, as is our practice.  Rockett v. State, 319
Ark. 335, 891 S.W.2d 366 (1995).  Mitchell has failed to preserve
this issue for our review due to a lack of specificity in his
motion for a directed verdict following the State's case.  He
merely stated in general terms that he did not believe that there
was sufficient evidence to justify the charge.  We set a bright
line rule in Walker v. State 318 Ark. 107, 883 S.W.2d 831 (1994),
and held that a motion for directed verdict in a criminal case must
include the specific ground for the motion.  In Walker, we quoted
from earlier authority that a directed verdict motion must be
sufficiently specific to apprise the circuit court of the
particular point raised.  See Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993), quoting Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992).  Accordingly, we will not consider this point.
     Mitchell next contends that the circuit court erred in finding
him competent to stand trial.  A defendant in a criminal case is
ordinarily presumed to be mentally competent to stand trial, and
the burden of proving incompetence is on that defendant.  Mask v.
State, 314 Ark. 25, 869 S.W.2d 1 (1993) (substituted opinion on
denial of rehearing).  The test for determining if an accused is
competent to stand trial is whether he is aware of the nature of
the charges against him and is capable of cooperating effectively
with his attorney in the preparation of his defense.  See Ark. Code
Ann.  5-2-302 (Repl. 1993); see also Mauppin v. State, 314 Ark.
566, 865 S.W.2d 270 (1993).  In Mauppin, we stated:
     We have said that in order to be competent to stand trial
     an accused must have the capacity to understand the
     nature and object of the proceedings brought against him,
     to consult with counsel, and to assist in the preparation
     of his defense.  Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989).  Upon appellate review of a finding of an
     accused's fitness to stand trial, the appellate court
     will affirm if there is substantial evidence to support
     the finding of the trial court.  Id.
314 Ark. at 567, 865 S.W.2d  at 271.
     Mitchell was evaluated in 1994 by a team headed by Dr. John
Anderson, a psychologist with the Mental Health Services Division
of the Arkansas Department of Human Services.  He was found to be
of average or low intelligence but able to understand the legal
proceedings against him and to assist effectively in his own
defense.  The evaluation noted that other than Mitchell's own
assertion that he was possessed by a demon at the time of the
shooting, there were no other symptoms of a mental disorder at the
time of the shooting.  Tests were also administered, and Dr.
Anderson concluded that the results of the Minnesota Multiphasic
Personality Inventory-2 test were inconclusive in that Mitchell
either did not read the questions, randomly answered them, or
answered them in such a way as to over-report symptoms.  Dr.
Anderson stated during the competency hearing that Mitchell told
him that there was a seven to eight minute gap in his memory during
the shooting incident which might have been caused by a demon.  Dr.
Anderson concluded that Mitchell was competent to stand trial.
     Mitchell offered no expert testimony to rebut these opinions. 
We conclude that substantial evidence supports the circuit court's
ruling of competency to stand trial.
     For his third point, Mitchell, who is black, argues that the
makeup of the jury venire did not represent a fair cross section of
the community.  To support his contention, he points to the fact
that when the circuit clerk first called 224 jurors for the venire
only 35 reported, and when the clerk followed this with a call of
112 jurors, only 26 reported.  In his motion to the circuit court,
defense counsel emphasized that the venire contained only 3 or 4
black jurors which was disproportionately low for the racial makeup
of Conway County where Union Chapel is located.
     The State maintained that the venire was randomly selected
from the voter registration list, but defense counsel countered:
     I know how that system works, but when they write in they
     have work hardships, illnesses, don't answer or respond
     to their letters, then it's not a random selection, it
     gets to be very selective because it boils down to just
     a few people that (sic) are interested enough in our
     system of government and our judicial system to serve on
     a jury.
The circuit court then called the circuit clerk, Carolyn Gadberry,
who testified that there was no way to tell the racial makeup of
the venire called from a voter list.  The circuit court denied the
motion to quash the venire.
     Mitchell had the burden of proving the systematic exclusion of
members of his racial group from the venire.  Biggers v. State, 317
Ark. 414; 878 S.W.2d 717 (1994); Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993); Walton v. State, 279 Ark. 193, 650 S.W.2d 231
(1983).  To make a prima facie showing of systematic exclusion, he
had to establish (1) the group allegedly excluded was a distinctive
group in the community; (2) the representation of this group in the
venire was not fair and reasonable in relation to the number of
such persons in the community; and (3) the under representation was
due to systematic exclusion.  Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989).  Only after he made his prima facie case by
establishing these three elements could the burden shift to the
State to justify its procedure.  Sanders v. State, supra.  When the
jury venire is drawn by random selection, the mere showing that it
is not representative of the racial composition of the population
will not make a prima facie showing of racial discrimination. 
Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993); Thomas v.
State, 289 Ark. 72, 709 S.W.2d 83 (1986).
     In the instant case, there was no dispute that blacks
represented a distinctive group in the community.  However,
Mitchell did not establish the second and third elements of the
Sanders test.  He failed to offer statistical proof of the racial
composition of the community or of the venire.  Furthermore, he
completely failed to offer evidence of systematic exclusion.  As a
result, there was no prima facie case, and, therefore, the burden
never shifted to the State to justify its procedure.  We further
note that two blacks sat on his jury.  The circuit court correctly
denied his motion to quash.
     Mitchell next maintains that the circuit court erred in
failing to make a sensitive inquiry into the circumstances
surrounding his Batson challenge.  During voir dire, the State
sought to strike a black juror, Carolyn Hervey, for cause.  Ms.
Hervey stated on voir dire that she was related to Bryan Hervey, a
State witness, by marriage, as well as being related to State
witnesses Dejuan and Michael Clemons.  Ms. Hervey admitted that she
was their aunt.  Michael Clemons, at one point, was a co-defendant
in this action.  Ms. Hervey stated, nevertheless, that she would
not have a problem sitting on the jury even though her decision
would be partially based on her relativesþ testimony.
     The prosecutor moved to strike Carolyn Hervey for cause based
on her kinship with one of the former co-defendants and her
suspected knowledge of the facts of the case.  The defense retorted
that Ms. Hervey stated that she could be objective in the case. 
The circuit court denied the motion to strike for cause.  The State
then used a peremptory challenge to strike Ms. Hervey, and the
defense raised a Batson objection.  The court ruled that there was
a sufficient basis for the State to use one of its challenges.
     This court has stated the procedures to be followed when a
Batson objection is raised:
     First, the defendant must make a prima facie case that
     racial discrimination is the basis of a juror challenge. 
     In the event the defendant makes a prima facie case, the
     State has the burden of showing that the challenge was
     not based upon race.  Only if the defendant makes a prima
     facie case and the State fails to give a racially neutral
     reason for the challenge is the court required to conduct
     a sensitive inquiry.
Franklin v. State, 314 Ark. 329, 338, 863 S.W.2d 268, 273 (1993);
see also Heard v. State, 322 Ark. 553, ___ S.W.2d ___ (1995); Sims
v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). This court has
stated that a prima facie case may be established by:  (1) showing
that the totality of the relevant facts gives rise to an inference
of discriminatory purpose, (2) demonstrating total or seriously
disproportionate exclusion of blacks from the jury, or (3) showing
a pattern of strikes, questions or statements by a prosecuting
attorney during voir dire.  Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994).  The standard of review for reversal of a
circuit court's Batson ruling is whether the court's findings are
clearly against the preponderance of the evidence. Sims v. State,
supra.
     In the matter before us, Mitchell did not make a prima facie
case.  He failed to raise an inference of discrimination or to
prove a disproportionate exclusion of blacks from the jury or a
pattern of strikes.  First, it is unclear from the record which
party excluded which jurors, except for Juror Hervey.  Secondly,
the fact that one black member is struck from the jury, by itself,
is not sufficient to make a prima facie case.
     Moreover, we again observe that two blacks were actually
seated on the jury in this case.  In Thompson v. State, 301 Ark.
488, 785 S.W.2d 29 (1990), this court concluded that the presence
of minority members on the jury, while by no means determinative of
the question of whether discrimination occurred, is significant. 
This court has also stated that the best answer the State can have
to a charge of discrimination is to point to a jury which has black
members.  Gilland v. State, supra; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).  And, finally, even if a prima facie case had
been proven, the State's explanation for the challenge was racially
neutral, and the circuit court was well within its discretion to
deny the Batson challenge.
     Mitchell then contends that the circuit court erred in failing
to exclude the victim, Shalla Criswell, from the courtroom during
the testimony of other witnesses because she had given prior
inconsistent statements regarding the events on the night of the
shooting.  The Rule (Ark. R. Evid. 615) was invoked by Mitchell in
this case, and the circuit court ordered the exclusion of witnesses
during the course of testimony from other witnesses at trial.  Ark.
R. Evid. 616 provides that "[n]otwithstanding any provision to the
contrary" the victim of a crime shall have the right to be present
during the trial of the offense.  As we said in Stephens v. State,
290 Ark. 440, 720 S.W.2d 301 (1986), Rule 616 was added to the
Rules of Evidence by Act 462 of 1985, and we adopted the rule in
that opinion.  We noted that the presence of a victim in the
courtroom throughout the trial conceivably could put the fairness
of the trial in jeopardy under some circumstances, but that that
was not the case in Stephens.  Nor has Mitchell succeeded in
showing us how fairness was jeopardized in his trial by the
presence of one of his victims.  We conclude that the circuit court
did not err by permitting Shalla Criswell to attend Mitchell's
trial.
     For his final argument, Mitchell contends that the admission
into evidence of the nude autopsy photograph of Felicia Payne was
prejudicial to his case and constituted error by the circuit court. 
This point is not preserved for our review in that the photograph
at issue is not included in either the record of this matter or the
abstract of testimony and evidence in Mitchell's briefs.  It is
impossible for this court to determine the degree of prejudice if
the photograph in question is not before us.  See Russell v. State,
269 Ark. 44, 598 S.W.2d 96 (1980).
     Affirmed.