Sirkaneo v. State

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          APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CR-10-302], HONORABLE RICHARD L. PROCTOR, JUDGE

         Ronald L. Davis, Jr. Firm, PLLC, Little Rock, by: Ronald L. Davis, Jr., for appellant.

         Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for appellee.

         OPINION

         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, 2014 WL 580144.

          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."

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          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, 85 S.Ct. 1229, 14 L.Ed.2d 106 (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, 96 S.Ct. 2240, 49 L.Ed.2d 91 (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.

         Hart and Wynne, JJ., dissent.

         Robin F. Wynne, Justice, dissenting.

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          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

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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, 209 S.W.3d 364 (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 ...