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Gould v. State

Court of Appeals of Arkansas, Division II

February 24, 2016



         Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.

         Leslie Rutledge, Att'y Gen., by: Brooke Jackson, Ass't Att'y Gen., for appellee.

         KENNETH S. HIXSON, Judge. KINARD and WHITEAKER, JJ., agree.


         KENNETH S. HIXSON, Judge.

         Appellant Cortez Gould appeals his convictions for aggravated robbery and theft of property, which sentences were enhanced due to his use of a firearm during the commission of the crimes. Appellant was sentenced to forty years in prison. For his sole point on appeal, appellant contends that the trial court erred in denying his motion for a mistrial due to alleged juror misconduct. We affirm.

         The standard of review is well settled. A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). The trial court has broad discretion in granting or denying a motion for mistrial, and on appeal, we will not overturn the circuit court's decision absent an abuse of that discretion. Id. Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief. McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913. The presiding trial judge is in a better position than anyone else to evaluate the impact of any alleged errors. Id. Thus, this discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

          Following allegations of juror misconduct, the moving party bears the burden of proving both juror misconduct and a reasonable probability of resulting prejudice. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Our court will not presume prejudice in such situations. Id. Jurors are presumed unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Id. Whether prejudice occurred is also a matter for the sound discretion of the trial court. Id.

         In keeping with these legal principles, the following is an analysis of the events at trial. Appellant was accused of committing armed robbery at a Cricket cellular store in Conway, Arkansas, on September 7, 2012. A jury was seated, with one alternate juror available. The jurors were instructed on the rules to follow while serving as a juror, and among the admonitions was the following: " First, do not talk among yourselves about this case or about anyone involved with it until the end of the case when you go to the jury room to decide on your verdict."

         During trial, the owner of the Cricket store testified, explaining that she provided a general description of the perpetrator to the police, telling them that he was an African American male, estimated to be 5'6" tall, and she said he was clean shaven. The police presented her with a photographic lineup five days after the crime took place, on September 12, wherein she identified appellant as the person who robbed the store. During a Conway police detective's testimony, the detective said that two pictures of appellant--State's Exhibits 52 and 43--were taken on different days for purposes of the photographic lineup, but it appeared that appellant was coincidentally wearing the same shirt in both pictures. The photographs were passed to the jury.

         At the conclusion of the detective's testimony, defense counsel brought two jurors to the trial court's attention: Deborah Creswell and Vicky Campbell. Appellant had reported to his attorney that he heard the two women discussing the two photos of appellant as they were published to the jury. Appellant said that one of the women, later determined to be Vicky Campbell, commented that the shirts in the photos were not the same, to which the other woman disagreed. The prosecutor admitted that he heard the two women speak to each other, but he only heard one juror respond " no" or " not." This drew a motion for mistrial, given that this was deemed by appellant as improper inter-juror communication. Defense counsel argued that there was only one alternate juror available, and defense counsel did not know how to remedy the fact that there was improper conversation between jurors without removal of both jurors.

         The prosecutor suggested that the trial judge question the two jurors, and if there was improper communication, to issue a curative instruction to them. The prosecutor maintained, though, that there was no resulting prejudice from the alleged comments. After taking a brief recess, the trial judge denied the request for the extreme remedy of mistrial.

         In order to provide a complete record, and in renewal of the mistrial motion, defense counsel asked that the trial judge conduct an inquiry of these jurors to see if they were qualified as fair and impartial jurors to continue with jury duty. Defense counsel argued that it was unfair to continue when two jurors were talking about a piece of evidence. The trial judge agreed to conduct an in camera inquiry.

         Vicky Campbell stated to the trial judge that Deborah Creswell mentioned that the shirt collar in one picture did not look the same as the other, but she (Campbell) disagreed with Creswell. Campbell left the judge's chambers. Deborah Creswell was then called into chambers. Creswell said that Campbell mentioned that she thought the shirts were different in the two pictures, to which she (Creswell) ...

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