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APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-16-2644],
HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
William
R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy
Public Defender, for appellant.
Leslie
Rutledge, Atty Gen., by: Chris R. Warthen, Asst Atty Gen.,
for appellee.
OPINION
KAREN
R. BAKER, Associate Justice
Appellant Denzell Terrell Braud was found guilty by a Pulaski
County Circuit Court jury of capital murder and two counts of
first-degree battery. Braud was sentenced to life
imprisonment for his capital-murder conviction and an
additional twenty years imprisonment for his
first-degree-battery convictions, to run concurrently to his
life-imprisonment sentence. On appeal, Braud argues that the
circuit court abused its discretion by denying his motion for
mistrial on the basis of witness Dennis Driskills statements
during cross-examination. We affirm.
Because Braud does not challenge the sufficiency of the
evidence against him, only a brief recitation of the facts is
necessary. In June 2016, Braud lived in an apartment in
Little Rock with his girlfriend, Sharonda Franklin;
Franklins son, Cordarell Collins; Collinss girlfriend,
Alexis Davis; and Daviss three-year-old son, K.D. Franklin
testified that Braud also went by the nickname
"N.O." In the months leading up to the murder,
Franklin testified that Braud had become increasingly
paranoid. Franklin testified that on the morning of June 6,
2016, she left the apartment on foot because she was afraid
of Braud. Collins, Davis, and K.D. remained in the apartment.
Franklin eventually called Collins and asked him to come pick
her up, but Collins never arrived.
Davis
testified that on the morning of June 6, she was awakened by
Collinss cell phone. After the phone call, Collins told
Davis that he was going to pick up his mother, and he left
the bedroom. Immediately after Collins walked out of the
bedroom, Davis heard gunshots and Collins screaming,
"Why are you shooting me, stop shooting me N.O., dont
shoot me N.O." Collins ran back into the room and closed
the door. Davis handed Collins a gun. Collins shot one time
before he fell to the ground. Collins later died from his
injuries. As the gunman continued to fire shots through the
bedroom door, Davis picked up the gun, got into the closet
with K.D. and began shooting back. Both Davis and K.D.
received non-life-threatening gunshot wounds.
Dennis
Driskill, a witness for the State, testified that on June 6,
2016, he saw a man that he later identified as Braud outside
his apartment. Driskill testified that Braud was holding a
gun in his hand, and he had a pistol tucked in the back
waistband
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of his pants. During cross-examination, defense counsel asked
permission to approach Driskill. After defense counsel
approached Driskill, Driskill stated, "I would
appreciate it if you would step back from me, maam ... Ive
already had a run in with you on the parking lot when you
chased me down in a vehicle, and I dont want you near
me." Driskill accused defense counsel of threatening him
and blocking his way into his apartment. Subsequently, the
circuit court asked the jury to leave the courtroom. Outside
the presence of the jury, defense counsel moved for a
mistrial, arguing that the jury had been tainted through
Driskills accusations regarding defense counsels threats.
While arguing the motion for mistrial, both the defense and
the prosecution referred to Driskills prior combative
behavior toward defense counsel during an earlier omnibus
hearing. In denying the motion for mistrial, the circuit
court stated that Driskills spontaneous outbursts may have
damaged his credibility with the jury and therefore would
have been in Brauds favor. The circuit court admonished the
jury as follows:
Ladies and gentleman, were going to keep going, but I want
you to disregard the last dialogue we had that, that wasnt
part of, of the dialogue we should be having about this
trial, okay? Can yall do that? Sure you can.
"[A] mistrial is a drastic remedy and should be declared
when there has been an error so prejudicial that justice
cannot be served by continuing the trial, or when it cannot
be cured by an instruction." Travis v. State,
371 Ark. 621, 625, 269 S.W.3d 341, 344 (2007). The grant or
denial of a motion for mistrial lies within the sound
discretion of the circuit court, 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. King v. State, 298 Ark. 476, 769 S.W.2d
407 (1989). Additionally, we have held that "an
admonition will usually remove the effect of a prejudicial
statement unless the statement is so patently inflammatory
that justice could not be served by continuing the trial.
Kimble v. State, 331 Ark. 155, 959 S.W.2d 43
(1998)." Williams v. State, 2011 Ark. 432, at
8, 385 S.W.3d 157, 162.
On
appeal, Braud argues that the circuit court abused its
discretion in denying his request for a mistrial. Braud
argues that Driskills accusations against defense counsel
conveyed to the jury his belief that defense counsel had
threatened him before the trial and continued to threaten him
during the trial. Thus, Braud contends that the jury could
not help but conclude that the defense had threatened
Driskill to keep him from testifying for the State. To
support his position, Braud cites an opinion of the Florida
District Court of Appeal for the proposition that a
prosecution witnesss assertion that defense counsel tried to
conceal evidence is highly prejudicial. SeeClark v. State,881 So.2d 724 (Fla. Dist. Ct.App.
2004). Such an accusation by a witness for the prosecution is
highly prejudicial because it suggests to the jury that
defense counsel is trying to conceal evidence of his clients
guilt. Id. Further, Braud asserts ...