Davis v. State

Fred DAVIS v. STATE of Arkansas

CA CR 97-404                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered January 28, 1998


1.   Jury -- violation of defendant's right to impartial jury --
     focus on persons who actually sat on jury. -- In deciding
     whether a defendant's right to an impartial jury has been
     violated, the focus should not be on a juror who was
     peremptorily challenged, but on the persons who actually sat
     on the jury; the loss of peremptory challenges cannot be
     reviewed on appeal; to preserve for appeal an argument that
     the trial court erred in not excusing certain jurors for
     cause, the appellant must have exhausted his peremptory
     challenges and must show that he was later forced to accept a
     juror who should have been excused for cause.

2.   Jury -- use of peremptory challenges -- appellant's reliance
     on Glover misplaced. -- Appellant's attempt to have the
     appellate court reaffirm the holding in Glover v. State, 248
     Ark. 1260, 455 S.W.2d 670 (1970), that an appellant preserves
     a denial of a challenge for cause for appeal when he
     peremptorily challenges the juror who was not excused for
     cause, uses all his peremptory challenges, and states on the
     record that he would have challenged another juror if he had
     not been required to use his peremptory challenge against the
     juror who should have been excused for cause, was unsucessful;
     such a holding would have required the appellate court to
     disregard considerable recent precedent to the contrary; to
     the extent that the appellate court's opinion in Givens v.
     State, 42 Ark. App. 173, 856 S.W.2d 33 (1993), could be read
     as contrary to the decisions of the supreme court, it was
     overruled.

3.   Trial -- mistrial -- factors on review. -- Mistrial is a
     drastic remedy that should be resorted to only when there has
     been error so prejudicial that justice cannot be served by
     continuing the trial; a trial judge's denial of a mistrial
     will be not disturbed on appeal absent an abuse of discretion.

4.   Trial -- statement of witness corrected by admonition -- trial
     court correctly denied mistrial motion. -- Appellant's
     argument that the statement of a witness was so prejudicial
     that it could not be corrected by an admonition was without
     merit; defense counsel elicited a response that, even if
     categorized as a reference to previous illegal conduct, was
     one that was cured by a proper admonishment from the trial
     court; no abuse of discretion was found.

5.   Evidence -- evidence relevant to sentencing may be introduced
     -- such evidence includes "aggravating circumstances." --
     Arkansas Code Annotated section 16-97-103 allows for the
     introduction of evidence relevant to sentencing, including
     evidence of aggravating circumstances; "aggravation" means any
     circumstance attending the commission of a crime that
     increases its guilt or enormity or adds to its injurious
     consequences but that is above and beyond the essential
     constituents of the crime itself.

6.   Evidence -- evidence showed drug transaction not an isolated
     incident -- such evidence properly considered. -- While
     appellant's conviction for delivery of a controlled substance
     involved a relatively small amount of the drug, the State's
     evidence showed that the transaction was not an isolated
     incident; rather, it showed that appellant engaged in similar
     transactions with different intermediaries and buyers; the
     trial court properly considered these "circumstances attending
     the commission of a crime" to be the type that "increases its
     guilt or enormity or adds to its injurious consequences"; the
     trial court has wide discretion in admitting evidence of other
     crimes or wrongs, and its decision will be not reversed absent
     an abuse of discretion. 


     Appeal from Union Circuit Court; Larry Chandler, Judge;
affirmed.
     Richard A. Hutto, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     John E. Jennings, Judge.
     Fred Davis was found guilty of delivery of a controlled
substance (cocaine) and sentenced to thirty years in the Arkansas
Department of Correction.  He argues three points on appeal: (1)
that the trial court committed prejudicial error by not granting
his challenge for cause, thereby forcing him to use a peremptory
challenge against that juror and forcing him to accept a juror he
did not want; (2) that the trial court committed prejudicial error
by refusing to grant a mistrial after the State's witness referred
to appellant as a "bigger dealer"; and (3) that the trial court
committed prejudicial error by allowing the State to present, over
defense's objection, evidence of prior uncharged misconduct by the
appellant.  We disagree and affirm.
     Appellant first argues that the trial court erred in refusing
to strike prospective juror Pat Compton for cause.  During voir
dire, Ms. Compton stated that she was currently employed as a law
clerk for a United States Magistrate but before that she was Chief
Deputy Prosecutor for Union County.  In that capacity she had
prosecuted some drug cases and had sat as "second chair" on
occasional cases with the prosecutor in this case.  She had worked
with Officer Linda Law, a witness in this case.  She acknowledged
that she had a fairly long association with the El Dorado Police
Department and the Union County Sheriff's Office, and had a close
association with officers in both places.  Defense counsel's motion
that she be removed for cause was denied by the trial court. 
Ms. Compton then stated that she considered the defendant not
guilty unless the State met the burden of proving otherwise, and
that her friendship with police officers did not make her more
likely to believe their testimony.  Defense counsel then used the
seventh of his eight peremptory strikes against Ms. Compton.  After
defense counsel used his eighth and last peremptory strike, he
subsequently attempted to excuse another juror, Donald Moon, but
was not allowed to do so.  He did not challenge juror Moon for
cause.
     Appellant argues that since he objected to the trial court's
refusal to strike Ms. Compton for cause and exhausted all of his
peremptory challenges, it follows that prejudicial error was
committed.  We disagree.
     The Arkansas Supreme Court has stated unequivocally that in
deciding whether a defendant's right to an impartial jury has been
violated, the focus should not be on a juror who was peremptorily
challenged, but on the persons who actually sat on the jury. 
Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990) (citing Ross
v. Oklahoma, 487 U.S. 81 (1988)).  In that case, as in the case at
bar, appellant did not contend that any person who actually sat on
the jury should have been excluded for cause; rather, the only
complaint was the loss of peremptory challenges, which is not
reversible error.  Id.  Furthermore, our supreme court has held
that the loss of peremptory challenges cannot be reviewed on
appeal.  Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996).  To
preserve for appeal an argument that the trial court erred in not
excusing certain jurors for cause, the appellant must have
exhausted his peremptory challenges and must show that he was later
forced to accept a juror who should have been excused for cause. 
Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); see also
Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Hill v.
State, 275 Ark. 71, 628 S.W.2d 284 (1982).
     Appellant argues, in reliance upon Glover v. State, 248 Ark.
1260, 455 S.W.2d 670 (1970), that our focus on appeal should not be
on whether Juror Moon should have been excused for cause, but
whether Ms. Compton should have been excused for cause.  He argues
that the standard enunciated in Scherrer does not address the real
issue and is not in accordance with earlier Arkansas case law.  He
urges us to reaffirm the procedure followed in Glover and hold that
"an appellant preserves a denial of a challenge for cause for
appeal when he peremptorily challenges the juror who was not
excused for cause, uses all his peremptory challenges, and states
on the record that he would have challenged another juror if he had
not been required to use his peremptory challenge against the juror
who should have been excused for cause."  Such a holding would
require us to disregard considerable recent precedent to the
contrary.  Furthermore, to the extent that this court's opinion in
Givens v. State, 42 Ark. App. 173, 856 S.W.2d 33 (1993), could be
read as contrary to the decisions of the supreme court, it is
overruled.  
     For his second point on appeal, appellant argues that the
trial court erred in refusing to grant a mistrial.  Mistrial is a
drastic remedy which should be resorted to only when there has been
error so prejudicial that justice cannot be served by continuing
the trial.  Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).  A
trial judge's denial of a mistrial will be not disturbed on appeal
absent an abuse of discretion.  Id.
     Evidence revealed that police officer Linda Law was in charge
of this case.  Delbert Mathis, an informant, was working with
undercover officer David Fields in order to purchase drugs.  They
drove to an area of El Dorado known as Memphis Heights.  Anthony
Hicks approached the car.  The informant told Hicks he wanted a
"forty," meaning two rocks of crack cocaine.  Hicks went to the
back of a nearby residence where appellant was sitting on the
porch.  Appellant gave the crack to Hicks, who returned to the car
and handed it to the informant in exchange for forty dollars. 
Hicks then returned to the porch and gave the money to appellant. 
On direct examination, Linda Law testified about how these
undercover operations are structured, and about the necessity of
using informants as intermediaries because "the larger players will
not sell dope to a complete stranger."  In describing how
informants are paid, she testified that in this case "Mathis might
have gotten paid a little more" because "we had been wanting to get
this defendant."  She testified that an informant is interviewed to
determine who he knows and what he can do in order to "start off
with the biggest player he can help us get."  She testified that
informant Mathis had mentioned appellant in the interview.  On
cross-examination, she testified that appellant had been "targeted"
after being brought up in the informant's interview.  When asked
whether the informant "might have gotten paid more because he
managed to get something on [appellant]," officer Law replied, "Not
just on [appellant], but [appellant's] a bigger player than the
street dealer."  Defense counsel objected, moved to strike, and
moved for a mistrial, arguing that the witness's response made
improper reference to character or reputation.  The prosecutor
responded that the reference to "bigger player" meant that,
compared to Hicks, who had actually approached the car, appellant
was the "bigger player."  The trial court denied the motion for
mistrial, and instead, at defense counsel's request, admonished the
jury that appellant was only being tried for the one offense.
     Appellant argues that allowing the witness to describe him as
a "bigger player" is essentially the same as telling the jury that
appellant had been involved in other instances of drug dealing.  He
argues that the statement was so prejudicial that it could not be
corrected by the admonition.  We disagree.  Defense counsel
elicited a response that, even if categorized as a reference to
previous illegal conduct, was one that could be cured by a proper
admonishment from the trial court.  See e.g., Hall v. State, 314
Ark. 402, 862 S.W.2d 268 (1993).  We find no abuse of discretion by
the trial court.
     For his last point, appellant argues that the trial court
erred in allowing the State to present evidence during sentencing
of prior uncharged misconduct by appellant.  During the sentencing
phase of the trial, appellant sought to exclude testimony offered
by the State regarding prior drug sales.  The State argued that the
evidence should be admitted pursuant to Ark. Code Ann.  16-97-103
(Supp. 1995), as either aggravating circumstances or as relevant
character evidence.  The trial court allowed the evidence, which
consisted of testimony from Donald Dismuke that he had bought
$100.00 worth of crack from appellant and that he had seen
appellant sell crack on other occasions.  Mike Wilson testified
that, while working with the prosecutor's office, he had driven
into El Dorado and Dismuke had approached his car.  When asked if
he had any drugs, Dismuke went over to appellant, obtained drugs,
and brought them back to the car and exchanged them for money. 
Appellant argues that this evidence was improper and that its
admission was prejudicial error.
     Arkansas Code Annotated section 16-97-103 allows for the
introduction of evidence relevant to sentencing, including evidence
of aggravating circumstances.  The supreme court has addressed the
meaning of "aggravation" in the context of this statute in Hill v.
State, 318 Ark. 408, 887 S.W.2d 275 (1994).  There, after the
defendant pled guilty to robbery, the State was allowed to
introduce testimony during sentencing regarding the defendant's
prior attempt to rob the same victim.  The court held that such
testimony clearly met the definition of "aggravation," meaning "any
circumstance attending the commission of a crime ... which
increases its guilt or enormity or adds to its injurious
consequences, but which is above and beyond the essential
constituents of the crime ... itself."
     The same can be said for the evidence presented by the State
in the case at bar.  While appellant's conviction for delivery of
a controlled substance involved a relatively small amount of the
drug, the State's evidence showed that the transaction was not an
isolated incident; rather, it showed that appellant engaged in
similar transactions with different intermediaries and buyers. 
Like the court in Hill, the trial court could consider these
"circumstances attending the commission of a crime" to be the type
that "increases its guilt or enormity or adds to its injurious
consequences."  The trial court has wide discretion in admitting
evidence of other crimes or wrongs, and its decision will be not
reversed absent an abuse of discretion.  Hill v. State, 318 Ark.
408, 887 S.W.2d 275 (1994). 
     Because we find no error, the judgment is affirmed.
     Affirmed.
     Arey and Stroud, JJ., agree.