Andre Dewayne Beverly v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ANDRE DEWAYNE BEVERLY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-289

November 3, 2004

APPEAL FROM THE CIRCUIT COURT OF ASHLEY COUNTY

[NO. CR03-110-1]

HONORABLE SAMUEL B. POPE,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Andre Dewayne Beverly, was found guilty by a jury of two counts of delivery of cocaine and one count of possession of cocaine for which he was sentenced to a total of forty years in prison. Appellant argues on appeal that the trial court erred in denying his two motions for mistrial. We find no abuse of discretion in the trial court's rulings and affirm.

The evidence at trial consisted primarily of the testimony of Investigator Robbie Fuller of the Crossett Police Department, and his informant, Shonni Abernathy. Fuller had arrested Abernathy on a charge of possession of methamphetamine with intent to deliver. Abernathy later contacted Fuller and agreed to work for the police in hopes of receiving favorable treatment on his drug charge. Abernathy helped Fuller with this case and others, and in addition, he assisted a state policeman on other drug cases. Abernathy's own drug charge was nolle prossed.

There was testimony that Abernathy bought a rock of crack cocaine from appellant on May 15, 2003. This occurred during a controlled transaction that took place inside a vehicle. The sale was videotaped, and the tape was shown to the jury. A second controlled transaction took place on May 23, 2003. On this occasion, Fuller dropped Abernathy off near appellant's residence at 809 Kentucky. He saw Abernathy walk to the back of the residence, and he said that Abernathy was out of sight for five to ten minutes before he picked up Abernathy further down the street. Abernathy testified that he went into the back yard of the residence where he found appellant and Abe Shaw. He said that he and appellant went inside the house where he purchased another rock of crack cocaine from appellant.

Appellant's first motion for a mistrial was made during Abernathy's testimony. The prosecutor asked Abernathy how he knew the appellant, and Abernathy responded by saying, "I used to buy drugs from him." Appellant moved for a mistrial, arguing that the response intimated that appellant had sold drugs on occasions other than the transactions for which he was standing trial.

A mistrial is an extreme remedy that should only be granted when the error is beyond repair and cannot be corrected by curative relief. Hudson v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Feb. 11, 2004). The trial court has wide discretion in granting or denying a motion for a mistrial, and this court will not disturb the trial court's decision in the absence of an abuse of discretion or manifest prejudice to the movant. Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000). 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. Jimenez v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Nov. 12, 2003).

We find no abuse of discretion in this instance. The trial court reasoned that the witness did not mention when or how many times he had purchased drugs from appellant and that it was plausible to conclude that the witness was only referring to the two transactions in question. Appellant did not ask the court for an admonition. The supreme court has held that an admonition can be sufficient to cure any resulting prejudice from improper references to a defendant's past criminal record. See Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). Where an admonition to the jury could have cured the situation, but no such admonition is requested, we will not say that the trial court's decision to deny the mistrial motion was an abuse of discretion. Standridge v. State,___ Ark. ___, ___ S.W.3d ___ (April 29, 2004).

The second motion for a mistrial came during the testimony of Investigator Fuller when he testified as a defense witness. On direct examination, appellant questioned the officer about his report concerning the May 23 drug buy and its failure to mention the presence of Abe Shaw in the back yard, as had been testified to by Abernathy. This line of questioning was pursued to suggest that it was Shaw, not appellant, who had sold the crack cocaine to Abernathy that day. The following transpired during the prosecution's cross-examination:

Q: Does that mean that because the confidential, because it's not in your report, does that mean that there's no way in the world Mr. Shaw could not have been there?

A: No, sir, it does not.

Q: Okay.

A: Abraham Shaw was present during a different buy at that residence.

Appellant's counsel objected and moved for a mistrial. He argued that this statement implied that appellant's residence was a crack house. The trial court denied the motion and offered to give an admonition to the jury, but the appellant declined.

As with the first mistrial motion, we perceive no abuse of discretion in the trial court's ruling. First, we are not convinced that one would necessarily infer from Fuller's response that appellant's residence was a crack house, and appellant refused the offer of an admonition. An admonition is the proper remedy where the assertion of prejudice is highly speculative. Smith v. State, ___ Ark. App. ___, ___ S.W.3d ___ (April 7, 2004). Secondly, even if such an inference could be made, the response was merely cumulative to similar evidence that was already before the jury. In his previous testimony as a witness for the prosecution, Fuller had said that Abernathy had identified the residence as a place where crack cocaine could be obtained. There was also testimony that various items of paraphernalia, including crack pipes and a can used for smoking crack cocaine, were also found in the search of the residence. Where similar evidence is previously admitted without objection, the admission of later testimony on the same subject is not considered prejudicial. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002).

Affirmed.

Stroud, C.J., and Pittman, J., agree.