Bobby Powell v. State of Arkansas

ar04-540

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BOBBY POWELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-540

June 8, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CR-2002-1265-1]

HON. BERLIN C. JONES,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this criminal case was charged with first-degree murder. During voir dire, the prosecuting attorney asked whether the jurors thought that the State had to prove motive, and stated that "it would be hard for the State to prove motive in some cases, especially if the person accused of the crime doesn't talk, doesn't tell you why." Appellant moved for a mistrial on the ground that this statement drew attention to appellant's failure to testify. The trial court denied the motion and, at the conclusion of trial, the appellant was found guilty of first-degree murder and sentenced to twenty-five years' imprisonment. On appeal, appellant contends that the trial court erred in denying his motion for mistrial during voir dire and that the evidence is insufficient to support his conviction. We affirm.

Appellant contends that the evidence is insufficient to support his conviction of first-degree murder. We cannot reach this issue, however, because it is not preserved for appeal. In her directed-verdict motion, appellant's counsel stated only that the State had failed to make a prima facie case, without specifying what elements of the offense the State had failed to prove.

[P]roof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict. The reason for this rule is that when specific grounds are stated and absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.

McClina v. State, 354 Ark. 384, 394, 123 S.W.3d 883, 889 (2003) (internal citations omitted). Because appellant's motion for directed verdict based on insufficiency of the evidence failed to specify the respect in which the evidence is deficient, he cannot now raise that issue in this court. Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003).

Appellant next argues that the trial judge erred in denying his motion for a mistrial based on the prosecuting attorney's statement to the jury. 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, 353 Ark. 12, 110 S.W.3d 752 (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. Id.

The question advanced on appeal was discussed by the Arkansas Supreme Court as follows in Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999):

In reviewing whether a comment made by a prosecutor during closing arguments is an impermissible comment on defendant's failure to testify, a two-step process is involved. First, we determine whether the comment itself is an improper comment on the defendant's failure to testify. The basic rule is that a prosecutor may not draw attention to the fact that, or comment on, the defendant's failure to testify, because this then makes the defendant testify against himself in violation of the Fifth Amendment. See Chapman v. California, 386 U.S. 18 (1967); Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). A veiled reference to the defendant's failure to testify is improper, as well. Landreth, supra; See also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Should we determine that the prosecutor's closing argument statement did indeed refer to Gates's choice not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Griffin v. California, 380 U.S. 609 (1965) (citing Chapman, supra). Here, defense counsel characterizes the prosecutor's comment as a "veiled" reference to Gates's choice not to testify. We disagree. A careful examination of the statement in context reveals that the prosecutor's statement asserts only that Gates, as the perpetrator of the crime, had knowledge of his actions. It did not go further and imply anything regarding Gates's election under the Fifth Amendment not to testify. Also, the jury had already been instructed, prior to closing arguments, that Gates did not have to testify at trial, and his choice not to testify could not be considered against him. We hold that the trial court did not abuse its discretion in not granting Gates's request for mistrial.

Gates v. State, 338 Ark. at 538, 2 S.W.3d at 44-45. The situation in the present case is analogous. As in Gates, the prosecutor's statement did not go beyond the assertion that only appellant had knowledge of his own motives, and did not go further and imply anything regarding appellant's election to not testify at trial. Significantly, the appellant in the present case did not request that the jury be admonished. As stated, a mistrial is a drastic remedy that should be resorted to only where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). On this record, we cannot say that any prejudice resulting from a misunderstanding of the prosecutor's question could not have been cured by an admonition, and we therefore hold that the trial court therefore did not err in denying appellant's motion for a mistrial. See Cagle v. State, 68 Ark. App. 248, 6 S.W.3d 801 (1999).

Affirmed.

Gladwin, J., agrees.

Bird, J., concurs.

Sam Bird, Judge, concurring. While I agree that the appellant's conviction should be affirmed, I write separately for two reasons: first, because I would affirm on the second point for a different reason than that expressed by the majority; and, second, to point out that, contrary to the belief expressed by the prosecuting attorney who represented the State at the trial of this case, it is not an acceptable practice by the prosecuting attorney to ask the prospective jurors, during voir dire or at any other time, whether they understand how hard it would be for the State to prove a defendant's motive for a crime if the defendant had not given a statement to the police.

The following colloquy occurred during the voir dire of a prospective juror:

PROSECUTING ATTORNEY: Mr. [Prospective Juror], do you think the State has to prove motive?

PROSPECTIVE JUROR: No.

PROSECUTING ATTORNEY: It would be nice if we did, wouldn't it?

PROSPECTIVE JUROR: Yeah.

PROSECUTING ATTORNEY: But you do understand that a person convicted of a crime doesn't always tell us why they do something?

PROSPECTIVE JUROR: Right.

PROSECUTING ATTORNEY: And that, in order for us to know, sometimes you've got to jump into the mind of somebody else. And I can't do that, can you?

PROSPECTIVE JUROR: No.

PROSECUTING ATTORNEY: So, do each of you understand how it would be hard for the State to prove motive in some cases, especially if the person accused of the crime doesn't talk, doesn't you why . . . .

DEFENSE ATTORNEY: May we approach Your Honor?

COURT: You may.

DEFENSE ATTORNEY: Your Honor, I ask for a mistrial. He's already made a statement about my client not testifying and how, unless he does, that he cannot defend himself. That is very improper.

. . . .

DEFENSE ATTORNEY: I object, and I'm asking for a mistrial at this very moment. By the way that he asked the question, he is implying to the jury that if my client does not take the stand or does not give a statement, that they will never know the true story and that he's automatically guilty. He knows better than that, and I don't know why he did it this morning. But he is prejudicing the case.

PROSECUTING ATTORNEY: Judge, I've asked that exact same question in every case where the defendant has not given a statement to the police. . . . He did not give a statement to the police, and I guess, tangentially, [that is] what I was referring to. But I didn't make anything saying he had to testify or anything along those lines. And I've asked the very same question of every panel that I've ever had before this court.

COURT: Restate the question that was just asked.

. . . .

PROSECUTING ATTORNEY: Does everybody understand that it would be hard for the State to prove motive, especially if the person accused of the crime didn't tell us why he may or may not have done something?

DEFENSE COUNSEL: That is a statement--that is a comment--

PROSECUTING ATTORNEY: That's pretty much what I said. And that relates to motive. That doesn't say they have to testify or anything else.

DEFENSE ATTORNEY: Your honor, just because he didn't say my client's name does not mean that the implications not there.

COURT: Implication of what?

DEFENSE ATTORNEY: The fact that my client didn't give a statement to the police or that he may not take the stand today.

PROSECUTING ATTORNEY: The fact that he didn't give a statement to the police is admissible.

DEFENSE ATTORNEY: It is not.

PROSECUTING ATTORNEY: Yeah, it is.

DEFENSE ATTORNEY: It is not. I have cases on that before it happens, because it is not.

Following this colloquy, the court denied appellant's motion for new trial, and defense counsel made no request that the court admonish the jury to disregard the prosecuting attorney's question.

I would affirm the denial of the motion for mistrial because, in failing to request an admonishment to the jury, appellant did not preserve for appeal the issue raised in his motion. The trial court has wide discretion in granting or denying a motion for mistrial, which will be granted only when the possible prejudice could not be remedied by an admonition to the jury. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). The failure to request a cautionary instruction or admonition should not inure to the appellant's benefit on appeal. Lawson v. State, 74 Ark. App. 257, 47 S.W.3d 294 (2001); Cagle v. State, 68 Ark. App. 248, 6 S.W.3d 801 (1999).

But the primary reason for this concurrence is to make it clear that our affirmance of appellant's conviction is not to be viewed as a condonation of what is apparently a common practice of the prosecuting attorney in this case to ask questions or make comments during the voir dire touching upon the defendant's refusal or failure to make a statement to the police officers following his arrest. The constitutional prohibition against the prosecutor commenting on the right of a defendant to remain silent applies to opening statement. Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987). By analogy, were we to consider the merits of this issue in the appeal of this case, I would hold that the prosecutor improperly referred to the accused's silence, and thus violated the Fifth Amendment, by commenting during voir dire that it could be hard for the State to prove motive "especially if the person accused of the crime doesn't talk." I view this tactic as an effort on the part of the State to suggest to prospective jurors that the State has a lesser burden of proof of a defendant's guilt when he has exercised his constitutional right to remain silent, a tactic that would clearly be violative of a defendant's Fifth Amendment right.