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Blanks v. State

Court of Appeals of Arkansas, Division II

October 17, 2018

DERMARIUS PARSHA BLANKS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          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 ...

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