Kenneth Bernard Thomas v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KENNETH BERNARD THOMAS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-406

February 25, 2004

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[CR-01-964]

HON. MICHAEL A. MAGGIO,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

A Faulkner County jury found appellant guilty of committing the crimes of first-degree battery and terroristic act, and sentenced him to a total of thirty years' imprisonment. Appellant raises two arguments on appeal: (1) that the trial court erred in failing to suppress the photo lineup and the in-court identification of appellant; (2) that the trial court erred in failing to grant a mistrial due to the prosecutor's comment in closing argument about appellant's failure to testify. We find no merit to these arguments, and we affirm.

On August 20, 2001, the State filed a felony information charging appellant with first-degree battery and terroristic act. Only a brief discussion of the facts leading to the charges is necessary to a determination of the issues on appeal. Davis Trumaine Dixon and Renelius Gatson were going to a party at a bowling alley in Conway on August 18, 2001. As Mr. Dixon drove into the parking lot just before midnight, a red Honda appeared as though it was going to hit them head-on. Mr. Dixon testified at trial that a girl in the red car started cursing and yelling at them, exited her car, and asked them what they wanted to do. Mr. Dixon explained that the girl went back in the car and a man got out of the car and came to Mr. Dixon's driver's window, cursing and telling him to get out of the car. The man had a drink in his hand and threw it at Mr. Dixon's car. Mr. Dixon testified that he got out of his car and the man took off running. Mr. Dixon then began to chase the man when he noticed the man stop and reach for something. Mr. Dixon testified that he then saw that the man had a gun and began shooting at him. Mr. Dixon began to run back to his car and was shot above his left knee. He stated that he had the opportunity to see the man for four or five minutes outside his window and described the man as a black male about his height, with short hair and skin color similar to his, and stated that he was wearing a yellow Tommy Hilfiger t-shirt. Mr. Dixon identified appellant in a photo line-up and at trial as the man who shot him.

For his first point of appeal, appellant contends that the trial court erred in failing to suppress the photo lineup and the in-court identification of appellant. Appellant filed a pretrial motion to suppress a show-up identification made by Mr. Gatson, a photo lineup identification by Mr. Davis, and the in-court identification of appellant by Mr. Davis. After a pretrial hearing, the trial court ruled that it would suppress Mr. Gatson's testimony regarding the show-up identification of appellant. However, the court ruled the photo lineup was valid and that Mr. Dixon's in-court identification of appellant was sufficient. Appellant contends that the photo lineup should have been suppressed because the witnesses identified the suspect as wearing a yellow Tommy Hilfiger t-shirt and appellant was the only one in the group wearing a yellow Tommy Hilfiger t-shirt. In response to appellant's argument, the State contends that the issue is procedurally barred because appellant failed to object to the in-court identification at trial.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). Even if the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Id. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; (6) the lapse of time between the alleged act and the pretrial identification procedure. Id. We will not reverse a trial court's ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991).

In Lewis v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 9, 2003), the supreme court noted that a challenge to an out-of-court identification based on a photo array is not preserved for review where, despite challenging the photo identification prior to trial, the appellant failed to object to the victim's in-court identification. Lewis filed a motion to suppress both the photographic line up and the in-court identification, and the trial court ruled that the photo identifications were admissible. At trial, however, Lewis did not object to in-court identifications made by the witnesses. To preserve a challenge to a pretrial photographic identification, a contemporaneous objection to an in-court identification at trial is required. Id.; see also Fields v. State, supra.

Here, as the State points out, appellant did not object to Mr. Dixon's in-court identification of appellant. Because of his failure to make a contemporaneous objection at trial, appellant's argument is not preserved for our review.

For his second point of appeal, appellant argues that the trial court erred in failing to grant a mistrial due to the prosecutor's comment in closing argument about appellant's failure to testify. 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 manifestly affected. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). The circuit court has wide discretion in granting or denying a motion for mistrial, and, absent an abuse of that discretion, the circuit court's decision will not be disturbed on appeal. Id. The supreme court in Boyd v. State, 318 Ark. 799, 804, 889 S.W.2d 20, 22 (1994), explained that "[t]he bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue."

When a prosecutor is alleged to have made an improper comment on a defendant's failure to testify, the appellate court reviews the statement in a two-step process. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). First, we determine whether the comment itself is an improper comment on the defendant's failure to testify. Id. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant's failure to testify, because this makes the defendant testify against himself in violation of the Fifth Amendment. Id. A veiled reference to the defendant's failure to testify is improper as well. Id. If we decide that the prosecutor's closing argument statement did refer to the defendant's decision not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id.

During the State's rebuttal closing argument, the prosecutor stated:

And, again, ladies and gentlemen, it's real important for you to consider the testimony of the guy from the crime lab and what he says, [be]cause he says there's three ways that gunshot residue can be present, and you have to base your verdict on what you hear from the witness stand. Okay? And, he told you either [appellant] shot the gun, [appellant] was near a gun that was shot, or [appellant] handled an object that was near a gun that was shot.

And, what did you hear from here? Did you hear any evidence today about him handling something near a gun that had been shot? No. Did you hear anything about him being-

Appellant's counsel moved for a mistrial on the basis that the prosecutor made a statement as to appellant's right to remain silent in the case, quoting the prosecutor as saying, "We didn't hear anything from him that would indicate he had shot a gun or that he had been close to any gun." (Emphasis added.) The prosecutor responded that he only commented on the evidence and asked the jurors to recall what they heard from the witness stand. In denying the motion, the court stated that it was close, but noted that the prosecutor did not say "him," but only stated that he heard no evidence from the witness stand.

Applying the analysis set out above, we cannot say that the prosecutor's statement was an improper comment on appellant's failure to testify. Rather, the prosecutor was referring to the crime-lab witnesses's testimony regarding the possible ways the gunshot residue could have gotten on appellant's right hand. The witness testified that there were three possible ways -- appellant shot the gun, was near the gun, or handled an object that was near a gun that was shot. The prosecutor began to review the evidence presented by asking the questions, what did you hear, did you hear any evidence about appellant handling something near a gun that had been shot. The prosecutor used the words "any evidence," not testimony from appellant. In addition, as the court noted, the prosecutor never said, did you hear from appellant, rather the prosecutor stated, "what did you hear from here." As noted in Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999)(where the supreme court affirmed the denial of a motion for mistrial on the basis of an improper comment during closing argument on the defendant's failure to testify), the jury in the present case had already been instructed, prior to closing arguments, that appellant did not have to testify at trial, and his decision not to testify could not be considered against him. Based on the foregoing, we cannot hold that the trial court abused its discretion in denying appellant's request for a mistrial.

Even if the prosecutor's statement was an improper comment on appellant's failure to testify, it can be shown beyond a reasonable doubt that the error did not influence the verdict. Jones, supra. In Bradley v. State, 320 Ark. 100, 105, 896 S.W.2d 425, 428 (1995), the supreme court explained,

In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the Supreme Court declared that references to a defendant's failure to testify violate the Fifth Amendment privilege against self-incrimination, but can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. Id. at 615. Practical application of the Chapman test involves excising the improper remarks and examining the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

Here, the evidence introduced at trial revealed that Mr. Dixon had the opportunity to view appellant for several minutes during the altercation. He identified appellant as the man who shot him from a photo lineup approximately four hours after the shooting and at trial. Mr. Dixon's identification was based on his observation of his facial features, as well as the fact that Mr. Dixon stated that appellant was wearing a yellow Tommy Hilfiger t-shirt during the altercation and in the lineup. Mr. Gatson also stated that the man involved in the altercation was wearing a yellow Tommy Hilfiger t-shirt, and police found appellant approximately one-quarter to one-half mile away from the crime scene and he was wearing a yellow Tommy Hilfiger t-shirt. The crime-lab witness also testified that gunshot residue was found on appellant's hand.

The eyewitness testimony and physical evidence of appellant's guilt was overwhelming, and appellant would have been convicted in the absence of the prosecutor's comment. Accordingly, we hold that, beyond a reasonable doubt, the alleged error did not influence the verdict. Therefore, the trial court did not abuse its discretion in refusing to grant a mistrial.

Affirmed.

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