FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. CR-12-961.
HONORABLE CHARLES E. CLAWSON, JR., JUDGE.
L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for
Rutledge, Att'y Gen., by: Brooke Jackson, Ass't
Att'y Gen., for appellee.
S. HIXSON, Judge. KINARD and WHITEAKER, JJ., agree.
S. HIXSON, Judge.
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.
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.
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."
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.
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.
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.
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.
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) ...