FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CR-10-302],
HONORABLE RICHARD L. PROCTOR, JUDGE
L. Davis, Jr. Firm, PLLC, Little Rock, by: Ronald L. Davis,
Jr., for appellant.
Rutledge, Atty Gen., by: Chris R. Warthen, Asst Atty Gen.,
K. WOOD, Associate Justice
QaTonious Lee Sirkaneo 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.
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
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
Sirkaneos mistrial motion.
Detective Ramseys Cross-examination
Sirkaneo alleges that constitutional error occurred during
his cross-examination of Detective Ramsey. Specifically,
Sirkaneo questioned Ramseys 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 Im 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 Ramseys statement was improper and should not have
occurred. In ruling on his objection, the court stated,
"Well, whatever the object[ion] is, Im going to
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.
to determining if a mistrial is warranted, we must consider
whether an error occurred. The Fifth Amendment prohibits the
prosecution from commenting on the accuseds 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 persons silence to be used
to impeach an explanation subsequently offered at
trial." Id. In contrast, "when a comment
on a defendants 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).
Sirkaneos silence was not used to impeach his trial
testimony. In fact, Sirkaneo was not testifying; he was
conducting Detective Ramseys cross-examination. Thus, unlike
Doyle, the prosecutor here did not call attention to
Sirkaneos silence. Rather, it was Sirkaneos own line of
questioning that led to Ramseys 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 witnesss comment— regarding the defendants
request for a lawyer— was unresponsive, it was not an
attempt to impeach the defendant and therefore not prohibited
under Doyle ).
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.
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
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. No adverse ruling involved prejudicial
J., concurs without written opinion.
and Wynne, JJ., dissent.
F. Wynne, Justice, dissenting.
Pursuant to Arkansas Supreme Court Rule 4-3(i) (2019), I have
reviewed the record and concluded that the trial courts
determination that appellants 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.
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 appellants interests. Accordingly, this issue is squarely
before this court pursuant to our duty under Rule
defendants waiver of counsel in a criminal proceeding
concerns two competing constitutional rights: the right to
counsel and the right to proceed without
counsel when the decision is made voluntarily and
intelligently. 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
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 courts 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).
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 courts 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 defendants 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 defendants technical legal knowledge or
education, the court began its inquiry with appellant as
THE COURT: Alright. Mr. Brooks, I, I heard the argument while
ago that youve already been convicted of one felony and then
youve got this felony thats 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 ...