Derrick Starks v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

DERRICK STARKS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-259

October 1, 2003

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

CR-1998-57-5

HON. JERRY MAZZANTI, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Derrick Starks appeals from a jury verdict in which he was convicted of theft of property, fleeing, and failure to appear, and was sentenced to consecutive terms of imprisonment, as a habitual offender, totaling twenty-four years. On appeal, appellant argues that the trial court erred in denying his motion for a mistrial following a prejudicial statement by a witness for the State regarding other bad acts committed by appellant. We disagree and affirm.

On the night of April 9, 1998, "K.J." gave appellant a ride, at which time appellant threatened K.J. with a gun and forced her from her car. Appellant then picked up an acquaintance, "Mr. B.," whom appellant forced at gunpoint to rob another individual, "Mr. G." Appellant was also alleged to have robbed two other individuals earlier that same evening. After officers received information about appellant's "crime spree" and made contact with him, appellant fled from their marked patrol units at a very high rate of speed. He stopped only upon wrecking the car and was arrested. The arresting officers found a substance in the vehicle that they initially thought to be drugs.1

Appellant was charged with three counts of aggravated robbery, two counts of theft of property under $500, possession of a controlled substance, and fleeing. The case was set for a jury trial, but appellant failed to appear for the proceeding. At that time, a charge of failure to appear was added. At appellant's subsequent jury trial, the State elected not to proceed on two counts of aggravated robbery and one count of theft of property because of the absence of multiple witnesses. The charge of possession of a controlled substance had been previously nolle prossed, and the jury returned a not guilty verdict on the remaining charge of aggravated robbery. Appellant was convicted of one count of theft of property under $500, fleeing, and failure to appear. He was sentenced to a total of twenty-four years as a habitual offender.

Appellant's sole point of appeal cites as error the trial judge's denial of his request for a mistrial when one of the State's witnesses made a prejudicial statement regarding other alleged bad acts committed by appellant - specifically, that he remembered "Officer Brown finding some drugs in the car."

The Arkansas Supreme Court recently reiterated its position that 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. Walker v. State, __ Ark. __, 110 S.W.3d 752 (2003). A trial court must balance the curative effect of the admonition given to the jury against the prejudice which might have resulted from the improper testimony. See Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). On appeal, we must decide whether a trial court abused its discretion in this weighing process or whether there has been a showing of "manifest prejudice" resulting from the objectionable evidence coming before the jury. Id. 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. Id.

Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a motion for mistrial are whether the prosecutor deliberately induced a prejudicial response, and whether an admonition to the jury could have cured any resulting prejudice. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). While there is always some prejudice that results from the mention of even a misdemeanor, our supreme court has upheld denials of mistrials where, by chance remarks, it was brought out that the defendant had prior arrests, and even prior convictions, where the comment was inadvertent. Id. (quoting Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991)). Where a prior crime was mentioned in an inadvertent remark and unfair prejudice has not been shown, our supreme court has consistently affirmed the trial court's refusal to grant a mistrial. Mitchael v. State, 309 Ark. 151, 155, 828 S.W.2d 351, 354 (1992).

In the instant case, the State called Louis Gayfield, one of the police officers who arrested appellant at the scene of the wreck following the high-speed chase. The following exchange occurred during direct examination relating to the fleeing charge:

        State: Did you find a gun on him?

        Gayfield: I can't remember a gun. I do remember Officer Brown finding some drugs in the car.

At that point appellant's counsel objected. During the bench conference, conducted out of the hearing of the jury, the prosecutor stated that he "didn't know [Gayfield] was going to say that." Appellant's counsel then moved for a mistrial because the motion in limine precluded that type of evidence. The trial judge overruled the objection, but admonished the jury as follows:

Ladies and gentlemen of the jury, the witness mentioned that the other officer found some drugs in the car. There's not any proof that there were drugs in the car and that's not part of the lawsuit that we're here about today. This is a trial on other matters.

So I'm going to ask you to disregard that testimony in regard to what he may have found in the car.

We now examine whether the remark regarding drugs being found in the car was inadvertent, and whether the admonition to the jury cured any resulting prejudice. Appellant argues that the jury was more prone to believe appellant's guilt on the charges because of the officer's comment that appellant had possession of illegal drugs in his vehicle. He states that the officer's statement insinuating that the substance found was drugs directly conflicts with the evidence as reflected in the nolle prosse order that there were no actual drugs in the car.

The State contends that although an answer given by a witness may be more complete and thorough than appellant would have liked, it is not so patently inflammatory that justice could not be served by continuing the trial. See Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). In the instant case, the prosecutor asked whether the officer had found a gun on the appellant. The officer answered that he couldn't remember a gun, and then he added that he did remember another officer finding drugs in appellant's vehicle.

The trial judge denied appellant's motion for a mistrial but agreed to admonish the jury. The State maintains that the trial judge's admonition to the jury was immediate and thorough, and addressed the issues specifically raised by appellant in his objection and motion for mistrial. The State argues that the officer's mention of the substance discovered was not a predictable response to the question asked and was merely an additional inadvertent comment.

Appellant argues that counsel took great effort to keep any reference to the drug charge from the jury and filed a motion in limine on November 3, 1998. It specifically addressed the prohibition of any reference to drugs stating, "the mention of the use of drugs or possession of drugs would be more prejudicial than probative in this case and should not be admissible at trial" and that "any testimony by the police and other witnesses would vastly outweigh their probative value as well as not being relevant to the charges facing [appellant]." The motion was addressed before the trial began; accordingly, appellant maintains that the State and thereby its witnesses were clearly on notice that no reference was to be made to the possession or possible use of drugs by appellant. However, there is nothing in the record to show that the motion in limine was granted by the trial court, only that the following colloquy occurred between the trial judge and appellant's counsel, Mr. Potts:

Mr. Potts: And Mr. Harrod's Motion in Limine covers that in the statement, Your Honor, he did make reference to the use of drugs, and we're asking that be kept out of the trial, of course.

The Court: Yeah.

Mr. Potts: So at the appropriate time, if he does raise that, then I'll need to make an objection.

The Court: You'll need to do that, yeah.

Mr. Potts: Okay.

It was appellant's obligation to obtain a ruling on the motion. Without it, he cannot rely on the motion to support his argument on appeal.

We do not view the reference to the "drugs" found as being deliberately elicited by the prosecutor's question. We hold that the admonishment to the jury to disregard the remark was sufficient to cure any prejudice to appellant, and we hold that the trial court did not abuse its discretion in denying his motion for mistrial.

Affirmed.

Stroud, C.J., and Bird, J., agree.

1 Results of the lab analysis indicated that whatever was found was not a controlled substance.