APPEAL
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-18-657] HONORABLE JAMES O. COX, JUDGE
Terry
Goodwin Jones, for appellant.
Leslie
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
A
Sebastian County Circuit Court jury convicted appellant
Garland Butler of three counts of possession of drug
paraphernalia.[1] He was sentenced by the court as a
habitual offender to twenty-five years'
imprisonment.[2] He appeals his convictions and argues that
the court erred when it failed to grant his motion for a
mistrial. We affirm.
Appellant
does not challenge the sufficiency of the evidence, so only a
brief recitation of the facts is necessary. Appellant was
arrested on May 20, 2018, after the car he was driving was
stopped and searched by Officer Keith Shelby of the Fort
Smith Police Department for facing the wrong way on the
street.[3] Appellant did not own the car, but he
consented to its search. Officer Shelby found a used meth
pipe on the driver's side of the car, another one in the
backseat floorboard, and two sets of digital scales with
residue on them in a backpack located in the backseat of the
car. Appellant admitted that the backpack belonged to him but
denied ownership of the pipes. He was subsequently placed in
custody. The backseat occupant, Donald Neal, was also
arrested for possessing the pipe located near him. Once at
the jail, appellant claimed ownership of all the items found
in the car and stated that Neal knew nothing about them. Neal
was then released. Appellant was charged as a habitual
offender with four counts of possession of drug
paraphernalia.
Appellant's
jury trial took place on April 19, 2019. During rebuttal, the
prosecutor stated the following:
The evidence is clear in this case. And at this point,
it's not relevant and you're not to consider why the
defendant did what he did, or you know, if it makes sense
that he would speed away over, you know, whatever reason.
We're not alleging that he behaves like a law-abiding
citizen, you know. He is a criminal. He behaves like a
criminal. He committed these crimes. And we have proven
it. This is really a Norman Rockwell painting, this case
is so simple, and the defense is trying to make it seem like
a Picasso or a Salvador Dali, which it isn't.
So we ask you to go back there and be the conscience of the
community, use your common sense and do what you promised to
do, evaluate the evidence, follow the law, and do the right
thing for Sebastian County. Thanks.
(Emphasis added.) Following this rebuttal, defense counsel
asked to approach and moved for a mistrial alleging that the
State implied appellant had prior convictions by referring to
him as a criminal.[4] The court dismissed the jury and
subsequently heard arguments regarding the defense's
mistrial motion. It then stated the following:
Well, the entire enterprise we are involved in here, it's
the burden of the State to prove that Mr. Butler has
committed a crime. And to characterize him as that in
closing, you're right, I think it's prejudicial. I
think it's derogatory. But does it rise to the level of
something that needs to be a mistrial? I thought about it for
a few seconds before I sent the jury out. And I think for me
to try to do any kind of cautionary instruction would then
bring something to their attention more than they've
already probably thought about it, so I elected not to do
that. But your motion for mistrial will be denied.
Appellant
was found guilty of three of the four charges and sentenced
to twenty-five years' imprisonment and fined $15, 000.
The sentencing order was filed on April 23, 2019. Appellant
filed a timely notice of appeal on May 6. This appeal
followed.
Appellant
contends that the court erred by not granting his motion for
a mistrial. More specifically, he maintains that the court
erred when it failed to grant him a mistrial "based on
the prejudicial and derogatory statement of the prosecutor in
the closing remarks." However, this argument is not
preserved. A motion for mistrial based on an improper closing
argument must be made at the time the objectionable statement
is made, rather than waiting until the end of the State's
argument.[5] A mistrial motion that is based on
improper argument is untimely when it is made after closing
argument and out of the jury's presence.[6] Motions and
objections must be made at the time the objectionable matter
is brought to the jury's attention or they are otherwise
waived.[7] Here, appellant failed to make any
objection to the prosecutor's statement and waited until
the prosecutor concluded before moving for a mistrial.
Accordingly, appellant failed to move for a mistrial at the
first opportunity, and his argument is not preserved for our
review.[8]
Even if
appellant had preserved his argument, the court did not abuse
its discretion in denying the motion. A mistrial is an
extreme and drastic remedy reserved only for when there has
been an error so prejudicial that justice cannot be served by
continuing with the trial or when the fundamental fairness of
the trial has been manifestly affected.[9] The decision to
grant a mistrial is within the sound discretion of the
circuit court and will not be reversed absent a showing of
abuse or manifest prejudice to the appellant.[10] Whether an
admonition was requested and given, or requested and refused,
are relevant factors, although not necessarily definitive in
reaching a conclusion as to whether a mistrial should have
been granted.[11] The circuit court is given broad
discretion in controlling counsel in closing arguments, and
the appellate courts will not interfere with that discretion
absent a manifest abuse of that discretion.[12] Closing
remarks requiring reversal are rare and require an appeal to
the jurors' passions; the circuit court is in the best
position to evaluate the potential for prejudice based on the
prosecutor's remarks.[13] Where an attorney's
comment during closing arguments is directly reflecting or
inferable from testimony at trial, there is no
error.[14] Here, the testimony at trial revealed
that appellant was guilty of possessing the drug
paraphernalia found in the vehicle he was driving on May 20,
2018. Thus, the prosecutor's statement that ...