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, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
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 Driskill's
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;
Franklin's son, Cordarell Collins; Collins's
girlfriend, Alexis Davis; and Davis's 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
Collins's 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.,
don't 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 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, ma'am . . .
I've already had a run in with you on the parking lot
when you chased me down in a vehicle, and I don't 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 Driskill's accusations regarding defense
counsel's threats. While arguing the motion for mistrial,
both the defense and the prosecution referred to
Driskill's prior combative behavior toward defense
counsel during an earlier omnibus hearing. In denying the
motion for mistrial, the circuit court stated that
Driskill's spontaneous outbursts may have damaged his
credibility with the jury and therefore would have been in
Braud's favor. The circuit court admonished the jury as
follows:
Ladies and gentleman, we're going to keep going, but I
want you to disregard the last dialogue we had that, that
wasn't part of, of the dialogue we should be having about
this trial, okay? Can ya'll 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 Driskill's 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 witness's assertion that defense counsel
tried to conceal evidence is highly prejudicial. See
Clark 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
client's guilt. Id. Further, Braud asserts that
the circuit court's admonition to the jury was not
sufficient to overcome the prejudice caused by Driskill's
assertion that defense counsel had threatened him before
trial and was continuing to threaten him while he was
testifying.
Considering
the record before us and our standard of review, we are not
convinced that Driskill's statement rose to the level of
granting a mistrial. Here, Driskill's statement was
elicited by the defense attorney. Further, it was clear that
defense counsel was aware of Driskill's hostility toward
a certain defense attorney. Yet, this defense attorney was
selected to conduct Driskill's cross-examination. Whether
or not Driskill's statement was improper, it was not of
such magnitude that we must find the circuit court abused its
discretion in denying the motion for a mistrial. Further, the
circuit court's admonition to the jury was sufficient to
cure any possible prejudice stemming from Driskill's
remarks. Finally, we do not find Braud's citation to
Clark persuasive. In Clark, the witness
accused the defense attorney of telling her not to bring
evidence to court. Id. at 726. She also accused the
defense attorney of lying to her "many times."
Id. However, unlike the present case, there was
conflicting testimony concerning Clark's guilt, and the
circuit court failed to give a curative instruction to the
jury. Id. at 727. Accordingly, we find no abuse of
discretion in the circuit court's refusal to declare a
mistrial.
In
compliance with Arkansas Supreme Court Rule 4-3(i), the
record has been reviewed for all objections, motions, and
requests that were decided adversely to ...