FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-16-3894] HONORABLE LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
Donald Lee Brown was convicted in a jury trial of
second-degree murder committed against Damon Wilkins.
Brown's sentence was enhanced pursuant to the jury's
findings that he employed a firearm to commit the offense and
that he committed the offense in the presence of a child.
Brown's total prison sentence was thirty years.
now appeals, raising one argument for reversal. Brown argues
that the trial court abused its discretion in denying his
motion for a mistrial after one of the State's witnesses
allegedly made a comment about gangs during her
testimony. We find no error, and we affirm.
mistrial is an extreme and drastic remedy to be resorted to
only when there has been an error so prejudicial that justice
cannot be served by continuing the trial. Russell v.
State, 306 Ark. 436, 815 S.W.2d 929 (1991). A trial
court may grant or deny a motion for mistrial utilizing sound
discretion, and the exercise of that discretion should not be
disturbed on appeal unless an abuse of discretion or manifest
prejudice to the complaining party is shown. See King v.
State, 298 Ark. 476, 769 S.W.2d 407 (1989). Among the
factors considered by this court on appeal in determining
whether a trial court abused its discretion in denying a
mistrial motion are whether the prosecutor deliberately
induced a prejudicial response and whether an admonition to
the jury could have cured any resulting prejudice. Hall
v. State, 2018 Ark.App. 474, 561 S.W.3d 333. The
abuse-of-discretion standard is a high threshold that does
not simply require error in the trial court's decision
but requires that the trial court act improvidently,
thoughtlessly, or without due consideration. Hortenberry
v. State, 2017 Ark. 261, 526 S.W.3d 840.
September 3, 2016, the victim, Damon Wilkins, was living with
his fiancée Chamika Rogers and her four children. On
that evening there were two separate disturbances in front of
their house. During the second disturbance, Wilkins was shot
multiple times and killed. Chamika and two of her children
witnessed the shooting and testified that appellant Brown was
one of two persons who had shot Wilkins.
testified that on the evening at issue, several men,
including Brown and Chamika's nephew, came to her house.
According to Chamika, there were verbal confrontations
between Wilkins and both Brown and her nephew. The men left
the scene, and the police arrived at the house shortly
thereafter, having been called there by someone who had seen
the altercation and reported that Wilkins had pulled a gun on
someone. The police spoke with Chamika, and she told them
that during Wilkins's argument with her nephew, Wilkins
had a gun in his pocket but never pulled it out. The police
left the scene.
that night, the men who had been there earlier, including
Brown, returned to the house. According to Chamika, Wilkins
was apologizing to the men and tried to defuse the situation.
Then Chamika's sister drove up in a truck and said,
"If somebody pulled a gun on my son, I'm going to
blow this house up." Wilkins walked to the truck and
spoke with Chamika's sister and told her that he never
pulled a gun on anyone. Shortly thereafter, a man in a grey
Cadillac drove up, exited the car, and tossed a gun to Brown.
According to Chamika, these two men proceeded to where
Wilkins was standing near the truck and both men shot him
son, E.R., also testified about the shooting. E.R. testified
that before the shooting, Wilkins "kept apologizing, and
it didn't work." E.R. stated that he saw a an give a
gun to Brown, after which Brown started shooting at Wilkins.
daughter, C.R., testified next. It was during C.R.'s
testimony that Brown made his motion for mistrial that is the
subject of this appeal.
the prosecutor was questioning C.R. about the men returning
to the scene before the shooting, the following exchange
Witness: Don [Brown] was standing at the end of the driveway,
still on the phone. He was on his phone. He said he was going
to put that on the dogs is ...