Johnny Frank Evans v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
DIVISION I
CACR07-956
September 24, 2008
JOHNNY FRANK EVANS
APPELLANT
V.
APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
[CR2005-448]
HONORABLE HAMILTON H.
SINGLETON, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant, Johnny Evans, was tried by a jury and found guilty of the following
offenses: possession of controlled substance with intent to deliver–methamphetamine;
possession of controlled substance with intent to deliver–marijuana; possession of controlled
substance with intent to deliver–Xanax; maintaining a drug premises; possession of drug
paraphernalia. He was acquitted of the charges of simultaneous possession of drugs and
firearms, possession of a controlled substance–ecstasy; and possession of a firearm by certain
persons. He raises three points of appeal: 1) the trial court erred in denying his motion to
sever, 2) the trial court erred by commenting on the evidence, 3) the trial court erred in
denying his motion for a mistrial. We affirm.
For his first point of appeal, appellant contends that the trial court erred in denying his
motion to sever the charge of possession of a firearm by certain persons from the other
charges on which he was being tried. We agree.
Rule 22.2 of the Arkansas Rules of Criminal Procedure provides:
Severance of offenses.
(a) Whenever two (2) or more offenses have been joined for trial solely on the
ground that they are of the same or similar character and they are not part of a single
scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of
the defendant other than under subsection (a), shall grant a severance of offenses:
(i) If before trial, it is deemed appropriate to promote a fair determination of
the defendant’s guilt or innocence of each offense; or
(ii) If during trial, upon consent of the defendant, it is deemed necessary to
achieve a fair determination of the defendant’s guilt or innocence of each offense.
In Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), our supreme court explained that
under subsection (a) of Rule 22.2, a defendant has a right to severance when two or more
offenses have been joined solely on the ground that they are of the same or similar character,
but that a severance motion will be denied if the two offenses were part of a single scheme
or plan or if both offenses require the same evidence. Otherwise, granting or refusing a
severance is within the discretion of the trial court, and its decision will not be disturbed
absent an abuse of discretion. The court in Ferrell determined that the trial court erred
initially in refusing to sever the firearm/felon count from the murder count for trial. It
concluded, however, that the prejudicial impact of refusing to sever the offense was
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significantly reduced by other circumstances in the trial, and, therefore, the case could be
affirmed.
In Sutton v. State, 311 Ark. 435, 437-38, 844 S.W.2d 350, 352 (1993), our supreme
court again discussed the prejudicial impact of combining a felon/firearm charge with one or
more other felony charges:
In the last year and a half, we have examined the prejudicial impact that occurs
when a felon/firearm charge is combined with a murder charge for trial on two
occasions. Sullinger v. State, … Ferrell v. State, …. In each instance, we affirmed the
conviction and judgment, though we held that the trial court had erred in failing to
sever the charges for trial. We did so, based on what amounted to a harmless error
analysis. Though there was error, we held that the error was not prejudicial to the
defendant because of the existence of one or more overriding factors, including: (1) the
overwhelming evidence of guilt; (2) cross-examination of the defendant on the prior
conviction; and (3) a limiting instruction to the jury.
In both Sullinger and Ferrell, we scrutinized the circumstances of the case in light
of these factors and concluded that the joinder error was harmless, primarily due to
overwhelming evidence of guilt and the fact that the defendant would have taken the
stand in any event and been cross-examined about his felony conviction.
(Citations omitted and emphasis added.) The supreme court went on to discuss approaches
from other jurisdictions and concluded that their analytical approaches in assessing prejudicial
error were similar to that employed in Arkansas. In Sutton, the supreme court also concluded:
We are disinclined, as are other jurisdictions, to conclude that joinder of a
felon/firearm charge with a second felony charge constitutes prejudice by that fact
alone in all instances. However, we agree with the Ninth Circuit Court of Appeals “that the
danger that the jury’s perception of the defendant will be adversely affected is so strong as to create
a presumption favoring severance.”
Further, we do not believe that the circumstances in this case are sufficient to
overcome that presumption of prejudice. The evidence of guilt was weak, and the prior
felony was inadmissible for purposes of impeachment. In addition, the error was not cured by the
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instruction on the prior conviction and credibility at the end of the trial. Sutton, accordingly,
was prejudiced by the joinder and is entitled to a new trial.
Id. at 441, 844 S.W.2d at 354 (citations omitted and emphasis added). See also Burton v. State,
367 Ark. 109, 238 S.W.3d 111 (2006). Thus, in Sutton, the supreme court expressed its
agreement with the notion that there should be a presumption in favor of severing a felon/firearm
charge from other felony charges because the danger of prejudicing the defendant with the
jury is so strong. The court stopped short of holding that joinder of a felon/firearm charge
alone constitutes prejudice; but in Sutton, the court did not find the evidence of guilt, or any
other circumstances, so overwhelming as to reduce the prejudicial impact of the refusal to
sever. Consequently, on that basis, the case was reversed and remanded for a new trial.
Here, while we do not disagree with the State’s assertion that firearms are generally
regarded as tools in drug-trafficking activities and that their possession may be relevant to
establish intent where a defendant is charged with possession of a controlled substance with
intent to deliver, that position does not change the fact that a prior felony conviction is not
relevant to those charges.
Neither does it weigh against the presumption in favor of
severance. Consequently, we conclude that the trial court erred in refusing to sever the
felon/firearm offense.
We turn now to consider whether appellant was so prejudiced by the denial of his
motion to sever that this case must be reversed and remanded for a new trial. We find no
such prejudice. In Sutton, our supreme court indicated that the existence of even one of the
previously discussed factors, i.e., overwhelming evidence of guilt, limiting jury instructions,
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or the inevitable introduction of a prior conviction, may be sufficient to satisfy a harmlesserror analysis. Here, appellant does not challenge the sufficiency of the evidence, and he does
not abstract in detail the evidence from the trial that supported his convictions on the offenses.
In its reply brief, however, the State contends that the evidence of appellant’s guilt was
overwhelming on the charges for which he was found guilty. The State then summarizes that
evidence and lists the pages in the record where the evidence can be found. After reviewing
the record, we agree that the evidence of appellant’s guilt was overwhelming. In addition,
the trial court specifically instructed the jury that appellant’s status as a felon could only be
considered with respect to the felon/firearm offense, and not with respect to his guilt on any
of the other charges. Consequently, we hold that the trial court’s error was rendered harmless
by other circumstances in the trial, particularly the overwhelming evidence of appellant’s guilt
on the charges for which he was convicted and the trial court’s specific limiting instruction
to the jury.
For his second point of appeal, appellant contends that “not only did the trial court
comment on the evidence [in violation of our state constitution], he went so far as to
completely satisfy an element of the possession of a weapon by certain persons charge by
announcing that the defendant is a felon.” We do not address the merits of this point because
the argument that the trial court satisfied an element of the possession-of-a-weapon-bycertain-persons charge by announcing that appellant was a felon was rendered moot by the
fact that appellant was found not guilty of that charge. McFarland v. State, 337 Ark. 386, 989
S.W.2d 899 (1999).
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For his final point of appeal, appellant contends that the trial court erred in denying
his motion for a mistrial based upon Deputy David Gates calling the appellant a felon. We
disagree.
During the State’s examination of Deputy Gates, the following line of testimony
developed:
[Prosecutor]: After you observed the firearm what did you do?
[Gates]:
I notified Sheriff Jones of what we had found and I gave out a BOLO
of the suspect that had ran from the residence.
[Prosecutor]: What is a BOLO?
[Gates]:
Be on the lookout.
[Prosecutor]: Some people may not have heard that term before.
[Gates]:
I gave it out on the radio so everybody would know. I contacted
Sheriff Jones and let him know what we had and the situation and that
there was a pistol just inside the window of the residence. He arrived
at that time I believe shortly thereafter I showed him where the pistol
was inside the bedroom window. We went around to the garage door
where Investigator Thomas was. Investigator Thomas I believe
identified Johnny in some of the photos through the window on the
dresser at which time Sheriff Jones had called Investigator Reyes to type
a search warrant for the residence based on the fact that both Johnny and
Lavelle were felons.
(Emphasis added.) Appellant moved for a mistrial, which was denied by the trial court.
Without objection from appellant, however, the trial court addressed the jury and cautioned:
Ladies and gentlemen, we’re here today about drugs and about what happened
and what happened on February 21, 2005. I want you to disregard the reference to
this Defendant and his brother Lavelle being felons. Can you do that? Will you put
that out of your minds and address these charges as they stood on the 21 st of February,
2005? Can we do that?
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The jurors affirmatively nodded that they could, and the trial court denied appellant’s motion
for a mistrial.
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. Moreover, in Jones v.
State, 349 Ark. 331, 338, 78 S.W.3d 104, 109 (2002), our supreme court explained:
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, see Brown v. State, 320 Ark. 201, 895
S.W.2d 909 (1995), and whether an admonition to the jury could have cured any
resulting prejudice. Id.; see also Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).
While there is "always some prejudice that results from the inadvertent mention of a
prior conviction," see Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991), this
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. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); see also Novak v.
State, 287 Ark. 271, 698 S.W.2d 499 (1985) (where juror commented during voir dire
that he knew the defendant because he had arrested him, the trial court’s denial of a
mistrial did not require reversal because the evidence of guilt was overwhelming).
Here, it is clear from the quoted portion of the record that the prosecutor did not
deliberately solicit the objectionable testimony from Deputy Gates. In addition, the trial court
issued a cautionary instruction to the jury. Without the complications injected into this trial
by the refusal to sever the felon/firearm offense, there is no question that the deputy’s
inadvertent mention of appellant’s felon status would not require a mistrial.
The
considerations involved in this point of appeal, however, are intertwined with those
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concerning appellant’s first point of appeal regarding the denial of his motion to sever the
felon/firearm offense, which have already been fully discussed. Thus, under the circumstances
of this case, we need not address whether the trial court should have granted a mistrial
because, as discussed previously, the evidence of appellant’s guilt on the charges for which he
was convicted was overwhelming. Accordingly, the trial court’s denial of appellant’s motion
for mistrial does not require reversal.
Affirmed.
V AUGHT, J., agrees.
B AKER, J., concurs.
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