Dedrick Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR03-274

December 3, 2003

DEDRICK JOHNSON AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR2001-2524]

v.

HONORABLE MARION HUMPHREY,

STATE OF ARKANSAS JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant, Dedrick Johnson, was convicted of aggravated robbery and theft of property. He was sentenced to 120 months in the Arkansas Department of Correction. On appeal, he does not challenge the sufficiency of the evidence to support his conviction. Instead, appellant alleges that (1) the trial court erred in ruling that the money bags would have been inevitably discovered; (2) the trial court erred in refusing to grant his motion for mistrial following the testimony of a witness that made known appellant's suppressed statement; and (3) if we find that the witness's testimony was in response to defense counsel's question, then defense counsel was ineffective. We affirm.

On June 3, 2001, an employee of the Exxon station located at 418 East Broadway in North Little Rock, was robbed at knife-point as she left to make the station's bank deposit. The suspect fled with a brown paper bag containing two money bags totaling approximately $23,000. When officers with the North Little Rock Police Department responded to the call, an Exxon employee pointed the officers in the direction that the suspect was last seen running. The officers found appellant three blocks away hiding underneath an abandoned car at Larry's Auto Body. He was apprehended when he fled from underneath the car. Upon apprehension, appellant was placed in handcuffs. While appellant was handcuffed, the officers asked him where he had placed the money bags. In response, appellant nodded his head and said, "It's over there," which was in the direction of King TV Service, a business located between the Exxon station and Larry's Auto Body. An officer found the money bags in a grassy area behind a furniture store adjacent to Larry's Auto Body. Appellant was subsequently charged with aggravated robbery and theft of property.

The trial court suppressed appellant's statement regarding the location of the money bags. However, the court reasoned that, given the amount of money involved and the bags' proximity to both the Exxon station and the location where appellant was apprehended, the money bags would have been inevitably discovered and were therefore admissible.

Appellant alleges that the trial court erred when it denied his motion to suppress the money bags. When reviewing the denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).

The inevitable discovery rule provides that evidence that would otherwise be suppressed is admissible if the State proves by a preponderance of the evidence that the police would have inevitably discovered the evidence by lawful means. Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002). The doctrine is designed to remove evidence discovered as a result of improper conduct on the part of the officer from the exclusionary rule in certain specific situations. Fain v. State, 271 Ark. 874, 611 S.W.2d 508 (1981). If it is clearly evident that the officers would have discovered the evidence in any event, then the failure to give the Miranda warning will not prevent its introduction. Id.

The evidence established that the money bags were discovered three blocks from the Exxon station. Officer Don Dukes testified that the money bags were recovered fifty to sixty feet from where the officers apprehended appellant. He stated that even if appellant had not indicated where the money bags were, the officers still would have located the money bags. Officer Michael Blevins testified he first searched the alley behind the businesses for the money bags. He said that from there his search lead him into the grassy area behind the furniture store, which is where he recovered the money bags. Under the totality of the circumstances, the amount of money involved and the proximity of the money bags to both appellant and the Exxon station, it is clearly evident that the officers would have discovered the money bags absent appellant's statement indicating the money bags' location. Therefore, the denial of appellant's motion to suppress was proper.

Appellant next argues that the trial court erred when it refused to grant his motion for mistrial. A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifest affected. Elser v. State, Ark. , 114S.W.3d. 168 (2003). 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. Walker v. State, Ark. , 110 S.W.3d 752 (2003). Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion 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).

During cross-examination of Officer Dukes, the following transpired:

Defense Counsel: And you don't know where the money was at?

The Witness: Other than him pointing us in the general direction of what he did with the money, I don't.

Defense Counsel: May we approach, your Honor?

The Court: Yes.

Defense Counsel: Motion for mistrial.

State: Your Honor, it was in response to the defense's question.

The Court: It was in response to the defense's question.

Defense Counsel: Your Honor, I did not. I asked him. He did not - you don't know where the money was?

State: And he'd already answered that about a couple minutes ago and you re-asked him.

Defense Counsel: And his response is that, "Other than what the defendant told us . . . ." That's a blatant mistrial. That's as bad as they can get. He should have been instructed by the prosecutor.

The Court: Motion for mistrial is denied. The court feels that was responsive to the question. Alright.

It has been previously held that, where a witness's answer is a legitimate response to a question posed by defense counsel, such testimony was invited by the appellant and the trial court did not abuse its discretion in refusing to declare a mistrial. See Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). Here, defense counsel invited the response given by the witness and the witness's response was a legitimate response to defense counsel's question. Therefore, we can not say that the trial court abused its discretion.

In the alternative, appellant argues that if the witness's answer was responsive to defense counsel's question then defense counsel was ineffective. It is well settled that this court will not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Anderson v. State, Ark. , 108 S.W.3d 592 (2003). Appellant failed to raise the issue of ineffective assistance of counsel below; therefore, his argument is not preserved for appeal.

Affirmed.

Griffen and Crabtree, JJ., agree.