Melvin C. Hobbs v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR02-615

FEBRUARY 12, 2003

MELVIN C. HOBBS AN APPEAL FROM THE DESHA

APPELLANT COUNTY CIRCUIT COURT

v. [CR-2001-1-2]

STATE OF ARKANSAS HONORABLE SAMUEL B. POPE, APPELLEE JUDGE

AFFIRMED

Appellant Melvin Hobbs was charged with the offense of felon in possession of a firearm. A jury convicted Hobbs and sentenced him as a habitual offender to serve forty years in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in denying his motion for a mistrial after a prospective juror commented in open court about an alleged prior bad act committed by appellant. We affirm.

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; the decision to grant 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. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). Among the factorsto be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion is whether an admonition to the jury could have cured any resulting prejudice. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). While there is "always some prejudice that results from the inadvertent mention of a prior conviction," this court has upheld denials of mistrials where, by chance remarks, it was brought out that the defendant had prior arrests, and even prior convictions, and said comment was inadvertent. See Jones v. State, supra; see also Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985) (where juror commented during voir dire that he knew the defendant because he had arrested him, the trial court's denial of a mistrial did not require reversal).

During voir dire, the trial court asked prospective jurors whether they knew appellant. Potential juror Mickey Lindsey responded, stating, "I don't think that I could serve because Melvin Hobbs worked for me years ago and shot an employee of mine." When the trial court asked Mr. Lindsey if he could serve fairly and impartially, Mr. Lindsey replied that he could not, and the trial court excused him from the panel. After voir dire continued and three other prospective jurors had been excused, the trial court felt compelled to make the following statement:

I want to go on and bring something up since somebody said something about Mr. Hobbs in a past experience that he's had here in a courtroom. Would anybody be influenced by that statement that was made - probably shouldn't have been made, but it was and you can't take it back once it's made. Anybody be influenced by that statement so they couldn't give Mr. Hobbs a fair and impartial trial based on the evidence? That wasn't evidence. Anybody not be able to disregard it?

There was no response from the jury pool. For reasons other than those mentioned by the trial court, another prospective juror was excused.1

Hobbs then moved for a mistrial, arguing:

I'm going to move for a mistrial based on the statement of Mr. Lindsey. It's clear that he tainted the jury pool by his statement. This is prior bad act alleged against the defendant, so even though some people haven't spoken out that it has affected them - in a crowd this size, you might expect people not to speak out, so I would move for a mistrial on that basis.

In response, the trial court stated, "[t]hat's one of the reasons I asked that last question. It's denied." Subsequently, the jury found Hobbs guilty of felon in possession of a firearm, and the trial court sentenced appellant as a habitual offender to forty years' imprisonment. This appeal followed.

In this appeal, Hobbs contends that the trial court erred by denying his motion for mistrial. The State argues that Hobbs's motion for mistrial was not timely, and therefore, procedurally barred. We agree.

A contemporaneous objection is necessary in order to preserve an issue for appellate review. Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997); see also Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997). Appellant's failure to make a contemporaneous objection immediately following Lindsey's comment precludes our review of the issue on appeal; accordingly, we affirm.

Affirmed.

Gladwin and Roaf, JJ., agree.

1 After the court made its admonition, prospective juror, Debbie Poe, stated that "because I work with his sister-in-law and I know his brothers. I know quite a bit, you know. I really don't know him, but I've heard so much."