Webb v. State

Walter Anthony WEBB v. STATE of Arkansas

CR 96-220                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 21, 1997


1.   Motions -- directed verdict -- proof of alleged missing element of crime
     must be specificially identified -- appellant's motion was general. -- The
     proof of the element of the crime that is alleged to be
     missing must be specifically identified in a motion for a
     directed verdict; when specific grounds are stated and the
     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; here, appellant's
     motion for directed verdict was nothing more than a general
     motion based on insufficient evidence and did nothing to
     inform the trial court of the allegedly missing proof that
     appellant acted with premeditation and deliberation in the
     deaths of the victims.

2.   Evidence -- capital murder -- state of mind is but one element of offense
     -- causation of death must also be proved. -- Evidence of a person's
     state of mind is but one element of the offense of capital
     murder; causation of the death of another person must also be
     proved.

3.   Motions -- directed verdict -- failure to make specific motion precluded
     review of sufficiency of evidence on appeal. -- Although Ark. Sup. Ct.
     R. 4-3(h) requires the supreme court to review the record for
     error in life and death cases, this review presupposes that an
     objection was made at trial; where appellant failed to make a
     specific motion for directed verdict indicating the particular
     deficiencies in the State's proof, it was as if he had failed
     to object at all, and that failure precluded the court's
     review of the sufficiency of the evidence on appeal.

4.   Evidence -- trial court accorded wide discretion in rulings. -- A trial
     court is accorded wide discretion in evidentiary rulings and
     will not be reversed on such rulings absent a manifest abuse
     of discretion.

5.   Evidence -- relevant evidence defined -- trial court's ruling on relevancy
     entitled to great weight. -- Relevant evidence means any evidence
     having the tendency to make the existence of any fact that is
     of consequence to the determination of the action more
     probable or less probable than it would be without the
     evidence; a trial court's ruling on relevancy is entitled to
     great weight and will not be reversed absent an abuse of
     discretion.

6.   Evidence -- admission by party-opponent -- appellant's statement offered
     by prosecution against appellant -- not hearsay. -- Where appellant
     asserted that a statement he had made regarding the
     administration of a lethal injection to a nurse as she was
     drawing a sample of his blood was hearsay and not a proper
     admission by a party-opponent as provided in A.R.E. Rule
     801(d)(2) because he had never manifested his belief in the
     truth of the statement, the supreme court held that because
     the statement had been made by appellant, Rule 801(d)(2)(i),
     which concerns a statement offered against a party that is
     "his own statement," clearly applied; furthermore, appellant's
     claim that the statement was inadmissible because he was
     joking when he made it went not to the admissibility of the
     evidence, but only to the weight, which was within the jury's
     province; because the supreme court concluded that the
     statement was not hearsay, its admission at trial against
     appellant was not erroneous.

7.   Appeal & error -- no authority cited for argument -- merits not
     considered. -- Where an appellant has cited no authority for his
     argument, the appellate court will not consider its merits.

8.   Trial -- notice of defense filed -- virtually necessitated appellant's
     testifying in own behalf. -- Where appellant, asserting that the
     admission of his statement to a nurse violated his Fifth
     Amendment privilege against self-incrimination because it
     compelled him to take the stand in his own defense to explain
     the statement, provided no authority for the argument, the
     supreme court did not address the issue, noting, however, that
     appellant had filed a notice of defense before trial, stating
     that he would assert self-defense in the death of one of the
     victims, which virtually necessitated his testifying in his
     own behalf. 

9.   Trial -- mistrial -- when warranted -- prejudice not demonstrated. -- A
     mistrial is a drastic remedy that should be resorted to only
     when there has been error so prejudicial that justice cannot
     be served by continuing the trial; a trial judge's denial of
     a motion for mistrial will not be disturbed on appeal absent
     an abuse of discretion; appellant offered no authority in
     support of his contention that a mistrial was warranted, nor
     did he demonstrate any prejudice in the admission of an
     investigator's testimony that appellant had informed him that
     the female victim had been involved in witchcraft or voodoo;
     the appellate court will not reverse in the absence of
     prejudice; furthermore, the record was devoid of any request
     by appellant for any other remedy, such as an admonition to
     the jury; thus, the appellate court could not conclude that
     the trial court abused its discretion in allowing the
     investigator's testimony.


     Appeal from Greene Circuit Court; David Burnett, Judge;
affirmed.
     McDaniel & Wells, P.A., for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.


     Donald L. Corbin, Justice.
     Appellant, Walter Anthony Webb, appeals the judgment of the
Greene County Circuit Court finding him guilty of two counts of
capital murder for the murders of Aurora Carney and James Graves on
October 8, 1994.  Appellant was tried by a jury and sentenced to
life imprisonment without parole on both counts.  Jurisdiction is
properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). 
Appellant raises three arguments for reversal:  (1) That there was
insufficient evidence of premeditation and deliberation to convict
him of capital murder in both deaths; (2) that the trial court
erred in allowing the State to present hearsay evidence of a
statement made by Appellant to a clinic nurse; (3) and that the
trial court erred in refusing to grant a mistrial when a law
enforcement officer testified about what Appellant had told him
concerning Carney's participation in witchcraft and voodoo.  We do
not reach the merits of Appellant's first point due to a procedural
bar, and we find no merit to the remaining arguments and affirm the
trial court's judgment. 
                           I.  Facts 
     The evidence presented at trial revealed the following facts. 
On Sunday morning, October 9, 1994, Ginger Sain went to her
father's apartment in Rector, Arkansas, to check on his welfare. 
When she arrived at the apartment, she unexpectedly discovered her
father, James Graves, lying on his back on the floor with blood
coming out of his nostrils and an unknown woman, later identified
as Aurora Carney, sitting slumped over in a chair.  Mrs. Sain
contacted her husband and then contacted the paramedics and the
police.  The paramedics confirmed that Graves and Carney were dead. 
The state medical examiner later determined that Carney died as a
result of a single gunshot wound to the left side of her head and
that Graves died as a result of two gunshot wounds to the head, one
on either side.  
     The same day the bodies were discovered, Investigator Steve
Huddleston, of the Arkansas State Police, conducted an interview
with Appellant.  At trial, Huddleston testified that when he
informed Appellant that Carney, who was Appellant's fiancée, was
dead, Appellant seemed to be in shock.  Huddleston stated that
Appellant's response was, "In a car accident?"  Upon being informed
by Huddleston that Carney had been murdered, Appellant began
supplying the officer with the names of several men who might
commit such a crime, one of whom had allegedly been blackmailing
Carney.  Appellant told the officer that he had not seen or heard
from Carney since Thursday, October 6, 1994.      
     Investigator Huddleston interviewed Appellant again three days
later on October 12, 1994.  Appellant stated that he loved Carney
and that they had planned to be married.  Huddleston testified that
those were the only complimentary things Appellant said about his
future wife and that Appellant then proceeded to speak of Carney's
drunkenness and of fights and conflicts between the couple. 
Appellant informed the officer that Carney was a member of a
necromanic society, which Appellant described as a "book of death
society," and that Carney was interested in witchcraft and voodoo. 
Appellant further stated that Carney actually had a voodoo doll
constructed to represent her ex-husband and that she had buried the
doll in her backyard as a ritualistic act of her desire to see her
ex-husband dead.  Again, as in the first interview, Appellant
offered no information about the killings, although he later
admitted to being present when the deaths occurred.    
     Appellant left the state of Arkansas on October 13, 1994, the
day after his second interview with the police.  On October 21,
1994, and again on October 26, 1994, Appellant called his friend,
Judy Quigley, and informed her that he had been at Graves's
apartment on the night of the murders and that Graves had shot
Carney.  Appellant told Quigley that he had struggled with Graves
over the gun and killed Graves in self-defense, shooting him once
in the stomach and once in the head.         
     Susan Elliott, Appellant's ex-wife, testified that she, too,
had received telephone calls from Appellant during the time he had
removed himself from the state, in which he informed her of his
participation in the deaths of Graves and Carney.  In describing
the struggle that took place between himself and Graves, Appellant
told Elliott that after he wrestled the gun away from Graves, "I
did the fatal deed.  I took the gun and I shot him in the head."  
     Dr. Charles Sturner, Chief Medical Examiner at the Arkansas
State Crime Laboratory, testified that the gunshot wound to the
left side of Aurora Carney's head was a contact or near-contact
wound.  Dr. Sturner further stated that the wound to Aurora
Carney's head was consistent with an "execution" wound because the
wound was inside the left ear, which indicated that the gun would
have had to have been held either against or extremely close to a
vital organ, in this case the head and neck area.  Dr. Sturner
described a similar gunshot wound to the left side of James
Graves's head, as well as an additional gunshot wound on the right
side of Graves's head.  Dr. Sturner stated that either shot in and
of itself would have been fatal and that a second shot was not
necessary to ensure the victim's death.  Regarding the gunshot
wound to the left side of Graves's head, Dr. Sturner stated that
the gun would have actually been placed in close proximity to the
head.  As for the wound on the right side of Graves's head,
Dr. Sturner stated that the gun would have been a little farther
away, approximately six inches or less from the head.  Dr. Sturner
stated further that it was possible that the superficial injuries
to Graves's hands could have resulted from his being shot and
falling to the ground.  Finally, contrary to Appellant's version of
the night's events, Dr. Sturner stated unequivocally that there was
no gunshot wound to Graves's stomach.
     Gary Lawrence, a criminalist with the trace evidence section
of the Arkansas State Crime Laboratory, tested the gun that was
used in the murders and conducted tests for the presence of gunshot
residue on the hands of both victims.  Lawrence stated that he
found gunshot residue on the hands of James Graves.  Lawrence
stated that when gunshot residue is found on a person, it means
that the person has either fired a gun, or has been in close
proximity to the firing of a gun, or has been in a gunshot residue
environment.  Lawrence testified that he found that the residues
from the test-firings of the murder weapon conducted at the crime
lab were higher than the residues found on Graves's hands. 
Lawrence stated that the test-firing was representative of someone
who had fired the gun and that the residues on Graves's hands were
not consistent with that.  
     Appellant took the stand in his own defense and testified that
during the evening of Friday, October 7, 1994, he had made numerous
attempts to contact Carney.  He stated that when he left his
bookstore in Blytheville, Arkansas, just after 12:00 a.m. on
Saturday, October 8, 1994, he went to Carney's home in Kennett,
Missouri, to see if she had left him a message.  Appellant stated
that when he noticed her car was not in the driveway, he became
curious as to Carney's whereabouts, because she had told him on
Friday that she was going to a Alcoholics Anonymous retreat and
that she would be riding with another person.  Appellant stated
that he left Carney's house and drove to Graves's apartment in
Rector because he thought Carney might be there.  Appellant arrived
sometime around 2:00 a.m., and, after having seen Carney's car
parked in the alleyway, he went to the door of the apartment and
shook the door until Graves answered the door.  Appellant stated
that when he was let into the apartment, he took a set of keys
belonging to Graves out of the door lock, because he did not want
to get locked inside in the event there was trouble.   
     Appellant testified that he did not bring a gun to the
apartment but that it was Carney who initially secured the gun,
which belonged to Graves, and pointed it at Appellant while
threatening to shoot him.  Appellant stated that he convinced
Carney to give him the gun, which he set down on a nearby suitcase,
and that she had decided to leave with him when Graves picked up
the gun.  Appellant stated that Graves began waving the gun around
in the vicinity of Carney, and that the gun went off, shooting
Carney in the head.  Appellant stated that he then began to
struggle with Graves over the gun, and that ultimately, he had shot
Graves once in the stomach and once in the head in self-defense.  
     Appellant stated that when he realized Carney and Graves were
both dead, he left the apartment.  He stated further that when he
got into his van, he realized he had left the gun in the apartment
and he went back in and got the gun.  Appellant stated that he
later drove to Burdette, Arkansas, and threw the gun off a bridge
into the water.  Appellant stated that before he disposed of the
gun, however, he emptied the shells and threw them in an area near
the edge of the bridge.  Appellant stated that he then drove to
another bridge and disposed of Graves's keys.     
     On cross-examination, Appellant stated that he was forty-one
years old at the time, stood over six feet tall, weighed over 240
pounds, and was nearly a black belt in judo.  Appellant stated
further that Graves was sixty-four years old, stood five feet ten
inches tall, and weighed a little over 150 pounds.  Appellant
admitted that he did nothing to help either victim after they had
been shot and that he later lied to the police.  He admitted
further that, although he was in shock, he had the forethought to
go back and retrieve the gun from the apartment and dispose of it
along with Graves's keys.  Appellant admitted that the day after
his second interview with the police, he left the state and did not
return for almost three months.  Appellant admitted that after he
fired the shot that he said entered the stomach area of Graves's
body, Graves's hands went down to the ground and he was no longer
struggling with Appellant for the gun.  Lastly, Appellant admitted
that it was after Graves had stopped struggling that he shot Graves
in the head.  
         II.  Evidence of Premeditation and Deliberation
     Appellant argues on appeal that there was insufficient
evidence presented at trial to sustain a finding that Appellant
acted with premeditation and deliberation in the deaths of Aurora
Carney and James Graves.  The State contends that we should affirm
this point on the ground that Appellant's motion for directed
verdict was not sufficiently specific in violation of A.R.Cr.P.
Rule 33.1 and this court's recent case law.  We agree with the
State and thus we do not reach the merits because Appellant failed
to preserve this argument in the trial court.  
     At the close of the State's case, Appellant's attorney made
the following motion:
          Your Honor, the defendant Anthony Webb would move
     for a directed verdict of acquittal, stating that the
     State has not provided a prima facie case of capital
     murder against Anthony Webb and makes a motion that the
     Court enter a finding of a directed verdict of acquittal
     on the charges of capital murder both as to Aurora Carney
     and James Graves and further wants to reallege and
     readopt the arguments and the contention about the
     admissions as previously made. 

The trial court denied the motion and Appellant then presented his
defense, consisting of testimony from himself and two other
witnesses.  At the close of all the evidence, Appellant's attorney
stated:
          Your Honor, at this time the defense would renew its
     motion for a directed verdict of acquittal indicating
     that the State has not provided prima facie evidence of
     the defendant's guilt of capital murder of either Aurora
     Carney or James Graves.

Again, the trial court denied the motion.  
     Arkansas Rule of Criminal Procedure 33.1 provides:
          When there has been a trial by jury, the failure of
     a defendant to move for a directed verdict at the
     conclusion of the evidence presented by the prosecution
     and again at the close of the case because of
     insufficiency of the evidence will constitute a waiver of
     any question pertaining to the sufficiency of the
     evidence to support the jury verdict.  A motion for a
     directed verdict based on insufficiency of the evidence
     must specify the respect in which the evidence is
     deficient; a motion merely stating that the evidence is
     insufficient for conviction does not preserve for appeal
     issues relating to a specific deficiency such as
     insufficient proof on the elements of the offense.  A
     renewal of a previous motion for a directed verdict at
     the close of all of the evidence preserves the issue of
     insufficient evidence for appeal.  [Emphasis added.]

     Recently, in Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430
(1996), this court had occasion to address this issue.  Lovelady
contended the evidence was not sufficient to sustain the
conviction.  At the end of the state's case-in-chief, his attorney
stated, "`[T]he defense would move that the charges against the
defendant be dismissed on the basis that the State has failed to
meet its burden of proof.'"  Id. at 197, 931 S.W.2d  at 431.  This
court held:
     We have made it clear that the proof of the element of
     the crime that is alleged to be missing must be
     specifically identified in a motion for a directed
     verdict.  Walker v. State, 318 Ark. 107, 883 S.W.2d 831
     (1994).  "The reason underlying our holdings is that when
     specific grounds are stated and the 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."  Id. at 109, 883 S.W.2d 831 at 832 (quoting Brown v. State, 316 Ark. 724,
     726, 875 S.W.2d 828, 830 (1994)).  Here, Lovelady did not
     specify the proof alleged to be insufficient;
     consequently, the issue was not preserved for appellate
     review.

Id. at 197-98, 931 S.W.2d  at 431-32.  Here, Appellant's motion was
nothing more than a general motion based on insufficient evidence
and did nothing to inform the trial court of the allegedly missing
proof.    
     In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994),
relied upon by the court in Lovelady, this court stated that "[w]e
draw a bright line and hold that a motion for a directed verdict in
a criminal case must state the specific ground of the motion."  Id.
at 109, 883 S.W.2d  at 832.  Appellant argues that his directed-
verdict motion was sufficient in this case because it was obvious
to the trial court that he was challenging the State's evidence of
premeditation and deliberation on both counts.  Evidence of
Appellant's state of mind is but one element of the offense of
capital murder; causation of the death of another person must also
be proved.  How then, in this particular instance, was it obvious
to the trial court that Appellant was only attacking the alleged
deficient proof of premeditation and deliberation when Appellant
had additionally maintained that he had not even caused the death
of Aurora Carney?  Appellant's directed-verdict motion was thus
insufficient to properly apprise the trial court of the alleged
missing proof.  
     Appellant argues alternatively that this court is nonetheless
compelled to address the merits of the point pursuant to Ark. Sup.
Ct. Rule 4-3(h).  That rule requires that, "[w]hen the sentence is
death or life imprisonment, the Court must review all errors
prejudicial to the appellant in accordance with Ark. Code Ann. Sec.
16-91-113(a)."  Ark. Code Ann  16-91-113(a) (1987) provides that,
"[t]he Supreme Court need only review those matters briefed and
argued by the appellant, except that, where either a sentence for
life imprisonment or death has been imposed, the Supreme Court
shall review all errors prejudicial to the rights of the
appellant."  
     While it is true that Rule 4-3(h) requires us to review the
record for error in life and death cases, this review presupposes
that an objection was made at trial.  See Friar v. State, 313 Ark.
253, 854 S.W.2d 318 (1993); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992).  In Jones v. State, 323 Ark. 655, 916 S.W.2d 736
(1996), the appellant had been convicted of capital murder and
sentenced to life imprisonment without parole.  This court
nonetheless held:
          It is well-established that a challenge to the
     sufficiency of the evidence requires the moving party to
     apprise the trial court of the specific basis on which
     the directed-verdict motion is made.  Neither appellant's
     original directed-verdict motion nor his renewal motion
     indicates that any specific deficiency in the evidence
     was called to the trial court's attention.  Because there
     was a failure to raise the specific basis for a directed
     verdict at trial, appellant cannot now challenge the
     sufficiency of the evidence on appeal.

Id. at 658-59, 916 S.W.2d  at 738 (citations omitted).  Thus,
because Appellant failed to make a specific motion for directed
verdict indicating the particular deficiencies in the State's
proof, it is as if he failed to object at all, and that failure
below precludes our review of the sufficiency of the evidence on
appeal.  We thus affirm as to Appellant's first point.  
             III.  Appellant's Spontaneous Admission
     For his second point on appeal, Appellant argues that the
trial court erred by allowing the State to introduce hearsay
evidence of a spontaneous statement made by Appellant to a nurse
who was drawing a sample of his blood.  The conversation took place
at the Piggott Clinic where Appellant had been taken by officers to
have samples drawn pursuant to court order.  During the suppression
hearing below, the nurse, Donna Ray, stated that when she was
drawing blood from Appellant's arm, Appellant commented on how
painless the procedure was and that he would like for her to be the
one to give his lethal injection.  
     Don Poole, one of the officers who had transported Appellant
to the clinic, testified that he, too, was present when Appellant
made the statement to the nurse, and that he remembered Appellant
stating that if he got the lethal injection, would she (the nurse)
be the one to administer it.  Jerry Brogdon, the other officer who
had accompanied Appellant to the clinic, testified that to the best
of his recollection, Appellant stated, "I did not feel a thing when
she stuck the needle in my arm.  When it comes time to do the
lethal injection, I want her to administer the needle."  Brogdon
stated further that he recalled Appellant stating that, "It may
come to that.  It may not."  
     Appellant testified that the statement he made was one in
jest, in an attempt to relieve the nurse's apparent nervousness. 
Appellant recalled telling the nurse that the injection was
absolutely painless and that a lethal injection would not be so bad
if she was the one administering it.  Appellant maintained that he
made the statement as a joke and that he did not believe he was
going to receive a lethal injection because he was innocent of the
crimes.  The trial court found the statement to be an admission
under A.R.E. Rule 801(d)(2) and that it was up to the jury to
decide whether the statement was made seriously, indicating some
guilty knowledge of the homicides, or as a joke.  
     Appellant asserts on appeal that the statement was hearsay and
was not a proper admission as provided in Rule 801(d)(2) because he
never manifested his belief in the truth of the statement.  The
State argues that the statement was relevant as evidence of
Appellant's consciousness of his guilt of the crimes and that the
statement was an admission by a party opponent as provided in Rule
801(d)(2)(i).   A trial court is accorded wide discretion in
evidentiary rulings and will not be reversed on such rulings absent
a manifest abuse of discretion.  Misskelley v. State, 323 Ark. 449,
915 S.W.2d 702 (1996).  Relevant evidence means any evidence having
the tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.  Id.; A.R.E.
Rule 401.  A trial court's ruling on relevancy is entitled to great
weight and will not be reversed absent an abuse of discretion. 
Misskelley, 323 Ark. 449, 915 S.W.2d 702; Dixon v. State, 311 Ark.
613, 846 S.W.2d 170 (1993).
     Rule 801(d)(2) provides in part that a statement is not
hearsay if:
     [t]he statement is offered against a party and is (i) his
     own statement, in either his individual or a
     representative capacity, (ii) a statement of which he has
     manifested his adoption or belief in its truth, (iii) a
     statement by a person authorized by him to make a
     statement concerning the subject, (iv) a statement by his
     agent or servant concerning a matter within the scope of
     his agency or employment, made during the existence of
     the relationship, or (v) a statement by a co-conspirator
     of a party during the course and in furtherance of the
     conspiracy.  [Emphasis added.]
     Appellant's reliance on subsection (ii) of that rule is
misplaced because the statement at issue here was made by
Appellant, and therefore subsection (i) clearly applies.  There can
be no doubt that the statement was offered by the prosecution
against Appellant and that the statement was Appellant's own words. 
Thus, there is no need to look beyond subsection (i) to determine
whether Appellant manifested his belief in the truth of the
statement, because it is evident that each subsection in Rule
801(d)(2), connected by the conjunction "or," is an alternative way
of demonstrating statements that are admissible as admissions by
party opponents.  See Woodward v. State, 16 Ark. App. 18, 696 S.W.2d 759 (1985).  Furthermore, Appellant's claim that the
statement was inadmissible because he was joking when he said it
goes not to the admissibility of the evidence, but only to its
weight, which lies within the province of the jury.  Slocum v.
State, 325 Ark. 38, 924 S.W.2d 237 (1996).  Because we conclude
that the statement was not hearsay, as it was a statement made by
Appellant, its admission at trial against Appellant was not
erroneous.  
     Appellant additionally argues that the statement should have
been excluded on the grounds that it was unfairly prejudicial in
violation of A.R.E. Rule 403.  The State argues that the statement
was relevant evidence of Appellant's consciousness of his guilt in
the homicides and that the probative value was not substantially
outweighed by the danger of unfair prejudice.  Appellant offers no
authority in support of his argument, and thus, we will not address
it.  This court has repeatedly held that where an appellant has
cited no authority for his argument, we will not consider the
merits of it.  See, e.g., Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996); Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995);
Stevens v. State, 319 Ark. 640, 893 S.W.2d 773, cert. denied,
116 S. Ct. 168 (1995). 
     Lastly, Appellant argues that the admission of the statement
violated his Fifth Amendment privilege against self-incrimination,
because it compelled him to take the stand in his own defense in
order to explain the statement.  Again, Appellant provides no
authority for this argument and, likewise, we will not address it. 
We note, however, that Appellant did file a notice of defense prior
to trial stating that he would rely upon a defense of self-defense
in the death of James Graves, which would virtually necessitate
Appellant's testifying in his own behalf. 
                          IV.  Mistrial
     Lastly, Appellant argues that the trial court erred in
refusing to grant a mistrial when Investigator Huddleston testified
that Appellant had informed him that Aurora Carney was involved in
witchcraft or voodoo.  Appellant asserts that the trial court
entered an order in limine which prohibited any witness from
testifying concerning the occult, witchcraft, or related subjects,
and that the State violated that order by eliciting the testimony
concerning Carney's involvement in witchcraft and voodoo.  The
State argued below that it was not offering the testimony to show
that Carney was in fact involved in such activity, but rather to
demonstrate the way in which Appellant was defaming the victim, the
woman he was supposed to have loved enough to marry, only days
after she had been murdered.  The State further argued that the
testimony that was elicited from Investigator Huddleston was
outside the scope of the order because it was a statement made by
Appellant himself.  The trial court stated that it had recalled
meeting with the attorneys on the previous day and discussing the
substance of Appellant's motion in limine in regard to Appellant's
statements to the police.  The trial court ruled that the testimony
would be allowed as a statement by a party opponent to show how
Appellant was vilifying the woman he loved shortly after her
murder.    
     We have often held that a mistrial is a drastic remedy which
should be resorted to only when there has been error so prejudicial
that justice cannot be served by continuing the trial.  See, e.g.,
Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Stewart v.
State, 320 Ark. 75, 894 S.W.2d 930 (1995).  A trial judge's denial
of a motion for mistrial will not be disturbed on appeal absent an
abuse of discretion.  Weaver v. State, 324 Ark. 290, 920 S.W.2d 491
(1996).  Appellant offers no authority in support of his contention
that a mistrial was warranted, nor has he demonstrated any reason
why the admission of such testimony was prejudicial to him.  This
court will not reverse in the absence of prejudice.  Misskelley,
323 Ark. 449, 915 S.W.2d 702.  Furthermore, the record is devoid of
any request by Appellant for any other remedy, such as an
admonition to the jury.  For these reasons, we cannot conclude that
the trial court abused its discretion in allowing such testimony. 
     In accordance with Rule 4-3(h), the record has been reviewed
for adverse rulings objected to by Appellant but not argued on
appeal, and no such errors were found.  For the aforementioned
reasons, the judgment of conviction is affirmed.