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Brown v. State

Court of Appeals of Arkansas, Division IV

January 23, 2019

DONALD LEE BROWN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL 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.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant 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.

         Brown 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.[1] We find no error, and we affirm.

         A 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.

         On 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.

         Chamika 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.

         Later 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 multiple times.

         Chamika's 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.

         Chamika's 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.

         When the prosecutor was questioning C.R. about the men returning to the scene before the shooting, the following exchange occurred:

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 ...

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