APPEAL
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA
DISTRICT [NO. 47BCR-16-357] HONORABLE CINDY THYER, JUDGE
Law
Office of Wendell L. Hoskins II, by: Wendell L. Hoskins II;
and Law Office of James W. Harris, by: James W. Harris and
Zachary W. Morrison, for appellant.
Leslie
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
MEREDITH B. SWITZER, JUDGE
Allan
Curtis Jones was charged with the offense of murder in the
first degree in the shooting death of Mike Wallace. A
Mississippi County Circuit Court jury convicted Jones of
murder in the second degree and sentenced him to eighteen
years in prison. The jury also enhanced Jones's sentence
by six years, to be served consecutively to his sentence for
murder in the second degree, for using a firearm in the
commission of the offense. On appeal, Jones argues the
circuit court erred (1) in refusing his request for mistrial
based on comments made by the prosecutors in closing
arguments; (2) in denying his motion to deem Arkansas's
firearm-enhancement statute unconstitutional as violative of
the double-jeopardy clauses of both the United States and
Arkansas Constitutions; and (3) in refusing to give the jury
his proposed nonmodel jury instruction. We affirm.
I.
Facts
Jones
does not appeal the sufficiency of the evidence to support
his conviction for murder in the second degree; therefore,
only a brief overview of the facts is necessary. Jones, a
resident of Arbyrd, Missouri, worked for Lonnie Gibson and
managed Gibson's farms, which were located in southeast
Missouri and northeast Arkansas. Wallace farmed land adjacent
to one of Gibson's farms north of Leachville, Arkansas,
just a few miles from the Missouri border. On the afternoon
of October 27, 2016, Wallace obtained Jones's cell-phone
number from a friend and then called Jones, telling Jones he
had heard Jones had been "talking shit" about him.
When Jones denied saying anything about Wallace, Wallace told
Jones to meet him at "Lonnie Dale's 40,"
(Gibson's farm north of Leachville) or Wallace would find
Jones and "get him." Jones called Gibson, who told
Jones that Wallace likely carried a gun and advised him not
to meet Wallace. Jones elected to meet Wallace, and he called
his cousin, Anthony Vowels, to ride with him "to keep
the peace." Wallace continued to text Jones, asking him
if he was coming. When Jones pulled up to the appointed
location and got out of his truck, Wallace ran toward Jones
with arms "flailing." When Wallace reached Jones,
he grabbed Jones's collar. Jones backed down the side of
his truck and then pulled his .32-caliber handgun from his
pocket and shot Wallace until the gun was empty, a total of
seven shots. Wallace died at the scene from his injuries. No
gun was found on Wallace's person or in his truck.
II.
Refusal to Grant Mistrial for Comments Made During
Closing Arguments
Jones
first argues the circuit court erred in denying his motion
for mistrial based on improper comments made by the
prosecutors during closing arguments. A mistrial is an
extreme and drastic remedy reserved only for 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. Sampson v.
State, 2018 Ark.App. 160, 544 S.W.3d 580. The decision
to grant a mistrial is within the sound discretion of the
circuit court and will not be reversed absent a showing of
abuse or manifest prejudice to the appellant. Id.
Jones
contends that his objections to five instances of improper
comments during closing arguments warranted a mistrial. These
five instances were when the prosecutors (1) stated Jones
could not claim justification in shooting Wallace when it was
"combat by agreement"; (2) reminded the jury that
during jury selection, some jurors agreed one could not claim
self-defense by seriously injuring another person if that
person did not have a weapon with which to seriously injure
you; (3) told the jury that it did not "look good"
that Jones came from Missouri to Arkansas to meet Wallace
when he had no reason to be there; (4) cautioned the jury to
be aware of "lawyering" in response to a line of
questioning when defense counsel asked a witness whether he
gave Wallace Jones's cell-phone number; and (5)
illustrated extreme emotional distress that would constitute
manslaughter by using the example of a man killing another
man upon coming home from work and finding his wife in bed
with that man.
Only
one of the five instances that Jones claims merited a
mistrial is preserved for appellate review-when the
prosecutor told the jury that it did not "look
good" that Jones came from Missouri to Arkansas to meet
Wallace when he had no reason to be there. Jones objected to
the other four instances, three of which the circuit court
sustained and for which the circuit court gave cautionary
instructions. Jones, however, never concurrently requested a
mistrial in those four instances. He received all the relief
he requested in response to three of those objections; one of
Jones's objections was overruled, yet he still did not
request a mistrial.
The
only instance in which he requested a mistrial was during the
third objection. A motion for mistrial that is based on
improper closing argument must be made when the objectionable
statement is made; motions and objections are required to be
made at the time the objectionable matter is brought to the
jury's attention, or they are otherwise waived.
Killian v. State, 96 Ark.App. 92, 100, 238 S.W.3d
629, 634 (2006). An appellant cannot complain of error in not
granting a mistrial when a mistrial was not requested from
the circuit court. Nickelson v. State, 2012 Ark.App.
363, 417 S.W.3d 214.
Regarding
the third objection-the only one preserved for our review-not
only did the circuit court deny Jones's motion for
mistrial, it also denied his request for a cautionary
instruction, asking Jones's counsel what he wanted to say
that would not draw more attention to the statement. Whether
an admonition was requested and given, or requested and
refused, are relevant factors, although not necessarily
definitive in reaching a conclusion as to whether a mistrial
should have been granted. Walker v. State, 2019
Ark.App. 130, 571 S.W.3d 70. The circuit court is given broad
discretion in controlling counsel in closing arguments, and
the appellate courts will not interfere with that discretion
absent a manifest abuse of that discretion. Delatorre v.
State, 2015 Ark.App. 498, 471 S.W.3d 223. Closing
remarks requiring reversal are rare and require an appeal to
the jurors' passions; the circuit court is in the best
position to evaluate the potential for prejudice based on the
prosecutor's remarks. Id.
"Where
an attorney's comment during closing arguments is
directly reflecting or inferable from testimony at trial,
there is no error." Hendrix v. State, 2011 Ark.
122, at 10 (quoting Woodruff v. State, 313 Ark. 585,
592, 856 S.W.2d 299, 303-04 (1993)). At trial, Jones
testified he received a call from Wallace to meet him at
Gibson's farm north of Leachville, Arkansas. Gibson
counseled Jones not to go meet Wallace; nevertheless, Jones
picked up his cousin, Vowels, and drove to Arkansas to meet
Wallace. Jones did not give any other explanation as to why
he was in Arkansas that afternoon. The prosecutor's
comment was inferable from, if not a direct reflection of,
Jones's testimony that the only reason he drove to
Arkansas on the afternoon of October 27, 2016, was to meet
Wallace at Wallace's request. Furthermore, while the
circuit court denied Jones's request for a cautionary
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