Carl J. Nash v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-927

September 4, 2002

CARL J. NASH APPEAL FROM DESHA COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE DON GLOVER

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

The appellant, Carl Nash, was charged with first-degree murder, aggravated assault, and felon in possession of a firearm in connection with a shooting incident that resulted in the death of Clifton Jones. The felon in possession of a firearm charge was severed from the other counts. Appellant was tried first on the murder and assault charges and was acquitted. The instant appeal is from appellant's subsequent conviction of felon inpossession of a firearm for which he was sentenced as an habitual offender to a term of eight years in prison.

Appellant raises five issues on appeal. Four points involve motions for mistrial, and in the remaining issue he contends that the trial court erred in declaring that a witness was unavailable to allow the State to introduce her testimony from the previous trial. We find no error and affirm.

On August 8, 2000, appellant was working as a bouncer at a club. The victim, Clifton Jones, came into the bar without paying, and appellant escorted Jones outside. The two began fighting, and although others tried to break them apart, the fight did not end until a shot was fired. Several witnesses testified that appellant was holding a gun, but none of them could say that appellant was the person who had fired the shot. Jones left the premises but returned a short time later. Wit nesses said that Jones had a gun and that shots were exchanged. Jones was shot and later died.

Appellant's first argument is that the trial court erred in denying his motion for a mistrial during voir dire when the prosecutor spoke to the jurors saying:

One last thing I want to ask you about. You all have heard about this three strikes and you're out law. You know somebody does some thing three times and the fourth time is a bad thing. All right. Let me change that abit. What do you all think about somebody who has previously been convicted of a felony and then goes and commits another felony? (No response noted.) That's a bad question, isn't it? When we're talking about punish ment, I guess, is the context I'm talking about. Would it make a difference if some body had a first offense as opposed to some body that has two offenses? Does that make any difference to anybody? Do you see what I'm saying?

Appellant argues that the prosecutor's remarks gave the impres sion that appellant possibly had three prior felony convictions. We agree that the prosecutor's comments came perilously close to hinting to the jury that appellant had prior felony convictions, but we cannot say that the trial court abused its considerable discretion in denying the motion. The declaration of a mistrial is an extreme remedy and should only be granted when justice cannot be served by continuing the trial; mistrial is proper only where the error is beyond repair and cannot be corrected by curative relief. Taylor v. State, 77 Ark. 144,72 S.W.3d 882 (2002). The circuit court has wide discretion in the matter, and we will not disturb the trial court's decision absent an abuse of discretion or manifest prejudice to the movant. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). In this instance, the jury was advised from the start that appellant was being tried on the charge of felon in possession of a firearm. Later, the State introduced into evidence, as proof of appellant's prior felonyconviction to support the instant charge, that appellant had been previously convicted of felon in possession of a firearm. Thus, the jury was ultimately aware that appellant had been convicted of at least two prior felonies. We find no abuse of discretion.

As his second point, appellant contends that the trial court erred in denying his mistrial motion that was made during the State's direct examination of Antonio Nash, appellant's brother. Mr. Nash testified that he did not see appellant holding a gun when the first shot was fired. The prosecutor then referred the witness to his "prior testimony" [from the murder trial] where he had stated that he had seen appellant with a gun. Appellant argues that the court should have declared a mistrial because the jury was tipped off that there had been another trial because of the references to "prior testimony." We agree with the State that appellant's objection and motion for mistrial were untimely. Prior to appellant's objection, the prosecutor had made repeated references to the witness's "prior testimony." In order to preserve the issue for appeal, motions for mistrial must be made at the first opportunity. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). Since appellant's objection was not timely, we do not address the issue.

Appellant also claims error in the denial of his mistrial motion when the State asked Antonio Nash, "You don't want to seehim go to jail, do you?," to which the witness responded, "Well, he done been there, so I mean, if it's wrong, it's wrong." In addressing when an unresponsive answer warrants a mistrial, we have said that actual prejudice must have resulted from the remark. Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987). Here again, given that appellant was being tried on felon in possession, the jury could surmise that appellant might have been in jail. The witness's statement was not so prejudicial as to require a mistrial.

Fourth, appellant argues that the trial court erred in accepting the State's explanation that a witness, Sylvia Jones, was "unavailable" and thus allowing a portion of her testimony from the first trial to be admitted into evidence as an exception to the rule against hearsay. See Ark. R. Evid. 804(b)(1). We disagree. At the outset of trial, the State advised the court as to this witness's unavailability and of its intention to admit her former testimony into evidence. Appellant objected, questioning whether sufficient efforts had been made to locate the witness. The trial court took the issue under advisement. Later, when the State proposed to admit the witness's former testimony, appellant objected on the grounds that the witness's testimony was cumulative and that he did not have the same motive in cross-examining her at the former trial. Significantly, appellant did not argue that thewitness should not be considered unavailable. In fact, appellant stated that he accepted the prosecutor's word that a diligent effort had been made to locate her. Appellant thus withdrew his former objection, and having done so, it became as if no objection had been made on that basis. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Any question as to the witness's unavailability cannot now be challenged on appeal. Appellant also argues that he was denied the right of confrontation and that the prejudicial effect of the testimony exceeded its probative value. These issues are being raised for the first time on appeal, and we do not address them. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002).

As his final argument, appellant argues that the trial court erred in denying his motion for mistrial in which he alleged cumulative error. We have considered all of the assertions of error and have concluded that no reversible error occurred. We do not recognize the cumulative error doctrine when there is no error to accumulate. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

Affirmed.

Vaught and Crabtree, JJ., agree.