Lavar T. Thompson v. State of Arkansas

2019 Ark. 290

• Court: Supreme Court of Arkansas
• Decided: October 24, 2019
• Status: Published

Opinion

Cite as 2019 Ark. 290 SUPREME COURT OF ARKANSAS No. CR-19-169

Opinion Delivered: October 24, 2019 LAVAR T. THOMPSON APPELLANT APPEAL FROM THE DREW COUNTY CIRCUIT COURT V. [NO. 22CR-16-18]

HONORABLE SAM POPE, JUDGE STATE OF ARKANSAS

APPELLEE AFFIRMED.

JOHN DAN KEMP, Chief Justice

Appellant Lavar T. Thompson appeals an order of the Drew County Circuit Court

convicting him of two counts of first-degree murder, one count of attempted first-degree

murder, and one count of aggravated residential burglary and sentencing him to three

terms of life imprisonment and one term of fifty years to run consecutively. For reversal,

Thompson argues that the circuit court erred in denying his motion for mistrial. We

affirm.

I. Facts

On January 10, 2016, Thompson and two of his friends, Jeremiah Jones and

Kareena Gold, spent the early morning hours drinking and gambling at a juke joint in

Monticello. According to Gold, Thompson had lost most of his money by gambling with

the proprietor, and she and Jones encouraged Thompson to leave. Gold drove the friends

to Jones’s house. When they arrived, Thompson shot Jones and Gold while inside the car. Jones died immediately. Gold sustained a gunshot wound to the head but survived. She

escaped the vehicle and ran toward a neighbor’s house to seek help.

Thompson then drove Gold’s car to the home of his former girlfriend, Shalonda

Binns. There, he broke a window, entered the residence, and found Binns and her

boyfriend, Markeia Jamison, in a bedroom. Thompson shot and killed Binns. Jamison and

Thompson “tussled for the gun,” and Jamison shot two rounds at Thompson. Jamison fled

the residence and called the police. Law enforcement arrived at the scene and found

Thompson, wounded, in the home and discovered Binns, deceased, with a gunshot wound

to the head. Police also discovered Gold’s vehicle near Binns’s residence with Jones’s body

inside.

On February 22, 2016, the State filed a felony information charging Thompson

with two counts of capital murder, one count of attempted capital murder, one count of

aggravated residential burglary, and one count of felon in possession of a firearm. The case

proceeded to trial, and a jury found Thompson guilty of two counts of first-degree murder,

one count of attempted first-degree murder, and one count of aggravated residential

burglary. The jury sentenced Thompson to three life sentences for the murder convictions

and fifty years’ imprisonment for the burglary conviction to run consecutively. On

November 2, 2018, the circuit court entered a sentencing order reflecting the jury’s

convictions and sentences. From this order, Thompson timely filed his appeal.

II. Mistrial

2 For his sole point on appeal, Thompson argues that the circuit court erred in

denying his motion for mistrial. Specifically, he contends that Gold’s testimony was

nonresponsive to defense counsel’s question, irrelevant to the crimes for which he was

tried, and intended to accuse him “of being a bad man or a criminal.” Thompson further

asserts that Gold’s testimony was so prejudicial that no admonition to the jury could have

cured it.

At trial, the State called Gold as a witness. During cross-examination by defense

counsel, the following colloquy occurred,

DEFENSE COUNSEL: And you—One of the things you told the police was that the two of them [Thompson and Jones] were a lot tighter than the three of y’all together. Right?

GOLD: Uh-huh.

DEFENSE COUNSEL: All right. So—But, nonetheless, you had known, the three of y’all had known each other for at least ten years. Right?

GOLD: Yes, sir.

DEFENSE COUNSEL: All right. And—

GOLD: We was so close that the reason why Lavar [Thompson]was down here cause he had just broke his baby momma’s leg.

DEFENSE COUNSEL: Objection, Your Honor. Approach?

GOLD: Your Honor, I was just letting him know—

THE COURT: Just be quiet.

3 Defense counsel moved for a mistrial, stating that Gold had accused Thompson of

committing a crime and that her answer was nonresponsive to his question. Defense

counsel argued that the prejudice against Thompson could not be outweighed by the

probative value of Gold’s statement. The State responded that Gold’s testimony did not

necessarily implicate Thompson in any crime and that the court could give a curative

instruction. After hearing arguments, the circuit court ruled, “So I’m going to give an

admonishment. I’m going to deny the mistrial at this time. We’ll proceed.” The circuit

court subsequently admonished the jury:

THE COURT: Ladies and gentlemen of the jury, you will disregard the last response of the witness. It was not responsive to the questions asked. It was a totally adlibbed [sic] and is not relevant to the issues in this case. So follow my instruction. Ms. Gold?

GOLD: Yes.

THE COURT: You’re not an advocate in this case. You’re a witness. Respond to the attorney’s questions and leave it at that. Proceed.

Mistrial is an extreme and drastic remedy that is appropriate only when there has

been 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. McClendon v. State, 2019

Ark. 88, 570 S.W.3d 450. A circuit court has wide discretion in granting or denying a

motion for a mistrial, and absent an abuse of that discretion, the circuit court’s decision

will not be disturbed on appeal. Id. In determining whether a circuit court abused its

4 discretion in denying a mistrial motion, we consider factors such as (1) whether the

prosecutor deliberately induced a prejudicial response and (2) whether an admonition to

the jury could have cured any resulting prejudice. Id.

We have observed that there is always some prejudice that results from the mention

of a prior bad act in front of the jury. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993).

In instances where the infraction creates minimal prejudice, the proper remedy is an

objection to the evidence and an admonition or instruction to the jury to disregard the

remark. Id.; see also Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992) (affirming the

denial of a mistrial motion when a prosecutor highlighted the defendant’s cocaine usage);

Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992) (affirming the denial of a mistrial

motion when a witness inadvertently referred to an arrest warrant from the defendant’s

prior offense); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991) (affirming the

denial of a motion for mistrial when a detective inadvertently testified that the defendant

had a prior misdemeanor conviction).

In the case at bar, Gold’s testimony did not warrant a mistrial for the following

reasons. First, the prosecutor did not deliberately induce a prejudicial response from Gold.

To the contrary, defense counsel—not the prosecutor—questioned Gold on cross-

examination when the witness spontaneously made the remark that Thompson was in

town “cause he had just broke his baby momma’s leg.” The circuit court characterized

Gold’s answer as “ad-libbed” and irrelevant. Second, the circuit court gave an admonition

to the jury that could have cured any resulting prejudice. In fact, the circuit court’s

5 admonition went beyond simply instructing the jury to disregard Gold’s statement. The

circuit court also reminded Gold that she was a witness—not an advocate—and that she

should have responded solely to counsel’s questions.

Thompson cites Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006), for the

proposition that the circuit court abused its discretion in admitting Gold’s testimony. In

Green, the circuit court allowed a witness’s testimony that her brother and her nephew had

stolen Green’s marijuana plants and that her nephew had mysteriously died after the theft.

We held that the circuit court abused its discretion by admitting the testimony because it

was clearly prejudicial in implicating Green in an unrelated murder and disappearance,

that no admonition to the jury could have cured the statement, and that the witness’s

response was irrelevant to the issue of whether Green had committed the murders for

which he was on trial. Id. at 495, 231 S.W.3d at 652. The Green case is distinguishable

from the present case because Gold’s statement did not implicate Thompson in an

unrelated crime, and the record does not support an implication that Thompson had

previously been convicted of a crime for breaking “his baby momma’s leg.” Thus, we hold

that the circuit court did not abuse its discretion in denying Thompson’s motion for

mistrial. Accordingly, we affirm.

III. Rule 4-3(i)

Because Thompson received three sentences of life imprisonment, this court, in

compliance with Arkansas Supreme Court Rule 4-3(i), has examined the record for all

6 objections, motions, and requests made by either party that were decided adversely to

Thompson. No prejudicial error has been found. We therefore affirm.

Affirmed.

BAKER, J., concurs.

HART, J., dissents.

KAREN R. BAKER, Justice, concurring. I agree that the circuit court did not abuse

its discretion in denying Thompson’s motion for mistrial. However, I disagree with the

majority’s position that “Gold’s statement did not implicate Thompson in an unrelated

crime.” Gold’s statement was elicited by defense counsel as follows:

DEFENSE COUNSEL: All right. So–But, nonetheless, you had known, the three of y’all had known each other for at least ten years. Right?

DEFENSE COUNSEL: All right. And–

GOLD: We was so close that the reason why Lavar was down here cause he had just broke his baby momma’s leg.

In my view, Gold’s statement regarding Thompson’s breaking “his baby momma’s leg”

does implicate Thompson in a crime. However, the present case is still distinguishable

from Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006), because Gold made a singular

statement that was elicited in response to a question by defense counsel. Further, in the

present case, the circuit court admonished the jury to disregard Gold’s statement. We have

held that “an admonition will usually remove the effect of a prejudicial statement unless

7 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. Considering the record before us and our standard of

review, Gold’s statement was not of such magnitude that we must find the circuit court

abused its discretion in denying the motion for a mistrial. Accordingly, I agree with the

majority’s decision to affirm.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent. An admonition to the

jury could not cure the prejudice from witness Gold’s non-responsive statement accusing

Thompson of assaulting the mother of his own child, and the majority’s attempt to

distinguish this case from Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006) (circuit

court abused its discretion in denying motion for mistrial where statements from witness

tended to implicate defendant in unrelated crime) is unavailing.

That an admonition was insufficient to cure the prejudice from Gold’s statements is

demonstrated by the circuit judge’s own observations after the statements were made: “I

think from a legal standpoint, if I go forward this case will get reversed.” The trial court

then went on to state: “I do not like it, you know. I can give an admonishing instruction. I

just do not think one, when it is reviewed, will be enough to cure what has happened.”

However, after further argument from the State, the trial court denied the motion for a

mistrial, and even pointed to the fact that it was the defendant who had elected to go to

trial in this case. Whether a defendant elects to exercise his constitutional right to a jury

8 trial is not a consideration relevant to whether that trial proceeds in a fair, non-prejudicial

manner.

As set forth in Green, a mistrial is warranted where a witness accuses the defendant

of an unrelated crime. 365 Ark. 478, 231 S.W.3d 63. The majority purports to

distinguish this case from Green, noting that “the record does not support an implication

that Thompson had previously been convicted of a crime for breaking ‘his baby momma’s

leg.’” However, a review of the Green opinion shows no indication that the defendant had

been convicted of the unrelated accusation there either; the witness only stated that his

family member had died under mysterious circumstances after stealing drugs from the

defendant. See Green, supra. Green controls; the circuit court here should have just

declared a mistrial and set another trial date.

I dissent.

Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.