APPEAL
FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-16-71] HONORABLE
ROBERT BYNUM GIBSON, JR., JUDGE.
Brian
G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
appellant.
Leslie
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge.
Appellant
Dermarius Blanks was convicted by a Drew County jury of one
count each of aggravated residential burglary, aggravated
robbery, and theft of property valued at less than $1, 000;
he was sentenced to twenty years in the Arkansas Department
of Correction. On appeal, Blanks does not challenge the
sufficiency of the evidence. Instead, he argues that the
circuit court erred in (1) refusing to provide a remedy for a
discovery violation, and (2) refusing to grant a mistrial for
its unmerited rebuke of counsel in front of the jury. We
affirm.
I.
Mistrial Based on Discovery Violation
In his
first argument on appeal, Blanks argues that the circuit
court erred in denying his motion for mistrial based on a
purported discovery violation. Although Blanks does not
challenge the sufficiency of the evidence, a brief recitation
of the evidence is helpful here to understand the context of
his argument. Blanks, Rodney Payne, and Jessica Dodson
conceived a plan to rob Lamichael Wigfall.[1] On the day of the
robbery, Dodson had spent time at Wigfall's home. Later
that day, Payne and Blanks entered Wigfall's home
uninvited. They were armed, pointed guns at Wigfall, robbed
him, and then fled from the house. Law enforcement
investigated the robbery. As a part of the investigation,
Wigfall told the police that he had been robbed by two
assailants. He identified one as Payne and the other as a man
he knew as "Demo."
At
trial, Wigfall testified about the events of the robbery and
his identification of his assailants. He stated that the man
whom he called by the nickname "Demo" is Blanks.
Wigfall explained that he had known Blanks for six or seven
years, although he conceded that he never knew him by any
name other than his nickname. He nonetheless identified
"Demo" as the defendant sitting in the courtroom.
On cross-examination, Wigfall admitted that "Demo"
had a bandana over his forehead during the robbery, but it
did not cover his face. Wigfall was adamant that the robber
was "Demo because I know him. And I know who came in my
house."
Blanks
asserts that the purported discovery violation occurred
during the State's redirect examination of Wigfall.
During redirect, the State asked Wigfall to recount
everything that happened after he encountered the police
following the robbery. Wigfall responded that while he was at
the police station, he identified "Demo" and
"pointed him out in a lineup." Blanks immediately
objected that he had not been provided with a lineup in
discovery. Before the court ruled on the objection, Wigfall
stated, "It wasn't really a lineup. They just pulled
his picture off of Facebook." Without specifically
ruling on the objection, the court directed the State to
continue with its redirect. Blanks then conducted further
cross-examination during which Wigfall reiterated that law
enforcement showed him a Facebook photo to identify Blanks
and that he identified the person in the photo as
"Demo."
Blanks
once again alleged a discovery violation. He admitted that
discovery provided by the State included some Facebook
photos, but he asserted that there was nothing to indicate
that these photos were used in the pretrial identification
process and that this constituted a discovery violation.
Blanks argued that the use of the photographs by the police,
without their disclosure to the defense, constituted a
discovery violation and was "something we should have
been made aware of" so that the matter could have been
dealt with before trial. The court disagreed. It did,
however, agree to allow Blanks to question Wigfall further
about the photos once the jury retired to deliberate.
Subsequently,
outside the presence of the jury, Blanks elicited a proffer
of testimony from Wigfall. Wigfall was shown three
photographs taken from Facebook that had been communicated to
the defense during discovery. Wigfall said that none of those
photos was the one that the police had shown him after the
robbery. He repeated his testimony that he advised the police
that it was "Demo" who robbed him; the police then
pulled up some pictures from Facebook and asked whether the
picture was of "Demo," and Wigfall said that it
was.
At that
point, Blanks moved for a mistrial. He argued that the
photograph the police showed Wigfall was an important part of
his identification, and without having been given a copy of
the photo in discovery, there was no way to attack
Wigfall's actual identification of "Demo"-i.e.,
whether the Facebook picture was of Blanks or of someone
else. The court denied the mistrial motion, ruling that
Wigfall was "sure about who he was talking about, they
didn't need a lineup for him to be sure."
In his
first argument on appeal, Blanks argues that the circuit
court erred in denying his motion for mistrial based on the
alleged discovery violation. Our standard of review for
denials of mistrials 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 fundamental
fairness of the trial has been manifestly affected.
Bullock v. State, 2018 Ark.App. 118, at 5, 544
S.W.3d 566, 570 (citing McClinton v. State, 2015
Ark. 245, 464 S.W.3d 913). Declaring a mistrial is proper
only when the error is beyond repair and cannot be corrected
by any curative relief. Id. The judge presiding at
trial is in a better position than anyone else to evaluate
the impact of any alleged errors. Id. Therefore, the
circuit court has wide discretion in granting or denying a
motion for mistrial, and the decision of the circuit court
will not be reversed except for abuse of that discretion or
manifest prejudice to the complaining party. Id.
As a
preliminary issue, Blanks's argument on appeal is that
the discovery violation "required a remedy, but none was
given." His argument relies on an underlying
premise-that a discovery violation occurred. We note that the
court never specifically ruled that a discovery violation
occurred, and the State argues that such a violation did not
occur; therefore, no remedy was needed. We need not decide
this issue, however. Even assuming the State's failure to
disclose the Facebook photo to the defense constituted a
violation of the rules of discovery, we affirm the circuit
court because Blanks sought only the drastic remedy of a
mistrial rather than a less extreme remedy that might have
cured any resulting prejudice.
Arkansas
Rule of Criminal Procedure 19.7(a) sets forth the remedies
available to a court in connection with a discovery
violation:
If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed
to comply with an applicable discovery rule or with an order
issued pursuant thereto, the court may order such party to
permit the discovery or inspection of materials not
previously disclosed, grant a continuance, prohibit the party
from introducing in evidence the ...