APPEAL
FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CR-10-302]
HONORABLE RICHARD L. PROCTOR, JUDGE
Ronald
L. Davis, Jr. Firm, PLLC, by: Ronald L. Davis, Jr., for
appellant.
Leslie
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
RHONDA
K. WOOD, ASSOCIATE JUSTICE
Qa'Tonious
Lee Sirkaneo[1] contends that the circuit abused its
discretion when it failed to order a mistrial after a witness
testified regarding his right to remain silent. The circuit
court did not abuse its discretion. We affirm.
I.
Procedural History
Sirkaneo
was charged with capital murder in the death of Anna Mae
Banks and attempted capital murder of Nathaniel Banks. In his
first trial, a jury convicted him of first-degree murder and
attempted first-degree murder. He was sentenced to
consecutive terms of eighty and fifty years'
imprisonment. The Arkansas Court of Appeals reversed and
remanded for a new trial in Brooks v. State, 2014
Ark.App. 84.
In his
second jury trial, Sirkaneo represented himself. This jury
convicted him of first-degree murder, attempted first-degree
murder, and a firearm enhancement. He was sentenced as a
habitual offender to life imprisonment for first-degree
murder, thirty years' imprisonment for attempted
first-degree murder, and fifteen years' imprisonment on a
firearm enhancement, all to run consecutively. The sole issue
on appeal is whether the circuit court erred in denying
Sirkaneo's mistrial motion.[2]
II.
Detective Ramsey's Cross-examination
Sirkaneo
alleges that constitutional error occurred during his
cross-examination of Detective Ramsey. Specifically, Sirkaneo
questioned Ramsey's rationale for ruling out three other
suspects in the murder. Ramsey stated that these suspects
were excluded on the basis of investigative information. When
Sirkaneo prodded further into the source of this information,
Ramsey explained that two of the other suspects made
statements to the police, exonerating themselves. Ramsey then
stated, "But I'm telling you that you had the same
opportunity to give a statement. You, you signed your Miranda
Rights away and had the opportunity to give your statement.
But declined to."
Sirkaneo
immediately requested a bench conference. He argued that
Ramsey's statement was improper and should not have
occurred. In ruling on his objection, the court stated,
"Well, whatever the object[ion] is, I'm going to
overrule it."
III.
Standard of Review
Mistrial
is a drastic remedy that should be granted only when the
error is so prejudicial that justice cannot be served by
continuing the trial, or where the fundamental fairness of
the trial has been manifestly affected. Bell v.
State, 334 Ark. 285, 303, 973 S.W.2d 806, 816 (1998).
The circuit court enjoys broad discretion in ruling on a
mistrial motion. Id. We will not reverse a ruling
denying a mistrial motion absent an abuse of discretion.
E.g., Sylvester v. State, 2016 Ark. 136, at
8, 489 S.W.3d 146, 151. To determine whether abuse occurred,
we consider whether the prosecutor deliberately induced a
prejudicial response, and whether an admonition to the jury
could have cured any resulting prejudice. Id.
IV.
Analysis
Prior
to determining if a mistrial is warranted, we must consider
whether an error occurred. The Fifth Amendment prohibits the
prosecution from commenting on the accused's silence.
See Griffin v. California, 380 U.S. 609, 615 (1965).
Although Miranda warnings do not expressly assure
there is no penalty for invoking silence, such assurance is
implicit to all who receive the warning. Doyle v.
Ohio, 426 U.S. 610, 618, (1976). Accordingly, "it
would be fundamentally unfair and a deprivation of due
process to allow the arrested person's silence to be used
to impeach an explanation subsequently offered at
trial." Id. In contrast, "when a comment
on a defendant's post-arrest silence is not an attempt to
impeach the defendant, it is not the type of comment
prohibited by the Court in Doyle."
E.g., Sylvester v. State, 2016 Ark. 136, at
11, 489 S.W.3d 146, 152-53; Robinson v. State, 348
Ark. 280, 290, 72 S.W.3d 827, 833 (2002).
Here,
Sirkaneo's silence was not used to impeach his trial
testimony. In fact, Sirkaneo was not testifying; he was
conducting Detective Ramsey's cross-examination. Thus,
unlike Doyle, the prosecutor here did not call
attention to Sirkaneo's silence. Rather, it was
Sirkaneo's own line of questioning that led to
Ramsey's unanticipated response. This was not a
Doyle violation. Sylvester, 2016 Ark. 136,
at 11, 489 S.W.3d at 152-53 (holding that although the
witness's comment-regarding the defendant's request
for a lawyer-was unresponsive, it was not an attempt to
impeach the defendant and therefore not prohibited under
Doyle).
We also
note that the circuit court issued the following general jury
instruction at the end of the trial:
[The Court]: A defendant has an absolute constitutional right
not to testify. The fact that defendant does not testify is
not evidence of guilt or innocence and under no circumstances
shall be considered by you in arriving at your verdict.
The
circuit court did not abuse its discretion in overruling the
objection to the testimony. As there was no error, there was
no reason to declare a mistrial. Accordingly, we affirm
Sirkaneo's convictions.
V.
Rule 4-3(i)
In
compliance with Arkansas Supreme Court Rule 4-3(i), the
record has been examined for all objections, motions, and
requests made by either party that were decided adversely to
appellant.[3] No adverse ruling involved prejudicial
error.
Affirmed.
Baker,
J., concurs without written opinion.
Robin
F. Wynne, Justice, dissenting.
Pursuant
to Arkansas Supreme Court Rule 4-3(i) (2019), I have reviewed
the record and concluded that the trial court's
determination that appellant's waiver of counsel was
knowingly and intelligently made is clearly against the
preponderance of the evidence. Accordingly, I would reverse
and remand for a new trial.
Because
appellant received a sentence of life imprisonment, this
court is required by Rule 4-3(i) of the Rules of the Supreme
Court to "review all errors prejudicial to the appellant
in accordance with Ark. Code Ann. Sec. 16-91-113(a)."
Section 16-91-113(a) (Repl. 2016) provides as follows:
"The Supreme Court need only review those matters
briefed and argued by the appellant, except that where either
a sentence for life imprisonment or death has been imposed
the Supreme Court shall review all errors prejudicial to the
rights of the appellant." Here, it was an "error[]
prejudicial to the rights of the appellant" to rule that
appellant could waive the right to counsel-a fundamental
constitutional right-when that waiver was not made knowingly
and intelligently. We have a clear ruling by the trial court
on this issue, and the ruling was adverse to appellant's
interests. Accordingly, this issue is squarely before this
court pursuant to our duty under Rule 4-3(i).[4]
A
defendant's waiver of counsel in a criminal proceeding
concerns two competing constitutional rights: the right to
counsel[5] and the right to proceed without counsel
when the decision is made voluntarily and
intelligently.[6] A defendant in a criminal case may invoke
his right to defend himself pro se provided that (1) the
request to waive the right to counsel is unequivocal and
timely asserted; (2) there has been a knowing and intelligent
waiver; and (3) the defendant has not engaged in conduct that
would prevent the fair and orderly exposition of the issues.
Walton v. State, 2012 Ark. 336, at 7, 423 S.W.3d 56,
60. This court has written:
The constitutional minimum for a knowing and intelligent
waiver of the right to counsel requires that the accused be
made sufficiently aware of his right to have counsel present
and of the possible consequences of a decision to forego the
aid of counsel. The accused must "be made aware of the
dangers and disadvantages of self-representation, so that the
record will establish that 'he knows what he is doing and
his choice is made with eyes open.' "
We have previously held that the circuit court maintains a
weighty responsibility in determining whether an accused has
knowingly and intelligently waived his right to counsel.
Every reasonable presumption must be indulged against the
waiver of fundamental constitutional rights, and the burden
is upon the State to show that an accused voluntarily and
intelligently waived his fundamental right to the assistance
of counsel.
Determining whether an intelligent waiver of the right to
counsel has been made depends in each case on the particular
facts and circumstances, including the background, the
experience, and the conduct of the accused. A specific
warning of the danger and disadvantages of
self-representation, or a record showing that the defendant
possessed such required knowledge from other sources, is
required to establish the validity of the waiver.
Walton, 2012 Ark. 336, at 7-8, 423 S.W.3d at 60-61
(internal citations omitted). Our standard of review is
whether the circuit court's finding that the waiver of
rights was knowingly and intelligently made was clearly
against the preponderance of the evidence. Pierce v.
State, 362 Ark. 491 (2005).
In the
present case, on the morning of the first day of trial,
defense counsel informed the court that appellant wished to
represent himself at trial. After responding several times,
"I can do it myself," appellant then
responded in the affirmative to the question "[D]o you
want to represent yourself?" (Emphasis added.)
Defense counsel directed the court's attention to a case
with which he had recently been involved, Whitlow
v. State, 2016 Ark.App. 510, 506 S.W.3d 272. In
Whitlow, the trial court refused to allow the
defendant to represent himself at trial. The court of appeals
acknowledged that the trial court incorrectly based much of
its inquiry on the defendant's knowledge of the legal
system and his level of education but nonetheless affirmed
because his request to proceed pro se was not unequivocal.
After some discussion by defense counsel and the prosecution
regarding the "competence" to represent oneself at
trial not turning on the defendant's technical legal
knowledge or education, the court began its inquiry with
appellant as follows:
The Court: Alright. Mr. Brooks, I, I heard the argument while
ago that you've already been convicted of one felony and
then you've got this felony that's hanging over you
right now.
That there are some very serious consequences, should there
be a conviction in this case. And Mr. Davis is quite a
competent lawyer. One of the best lawyers that's able to
come before me.
Do you understand that it's to [sic] a real good idea for
you to represent yourself in this matter?
. . . .
Defendant Brooks/Sirkaneo: Yes, I understand that.
The Court: Okay.
Defendant Brooks/Sirkaneo: Why you ...