Muldrew v. State

963 S.W.2d 580, 331 Ark. 519, 1998 Ark. LEXIS 101
CourtSupreme Court of Arkansas
DecidedFebruary 19, 1998
DocketCR 97-561
StatusPublished
Cited by15 cases

This text of 963 S.W.2d 580 (Muldrew v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Muldrew v. State, 963 S.W.2d 580, 331 Ark. 519, 1998 Ark. LEXIS 101 (Ark. 1998).

Opinion

Robert L. Brown, Justice.

Appellant Wilbert Muldrew appeals his convictions on three counts of delivery of crack cocaine and his sentence of forty years on each count, with the three sentences to run consecutively. He raises two points on appeal, both of which relate to allegations of impropriety in the prosecutor’s closing argument. We hold that neither count has merit, and we affirm.

Muldrew’s first issue relates to the following closing argument and the ensuing colloquy:

PROSECUTOR: I want to read you the reasonable doubt instruction that [defense counsel] says is in our constitution. I don’t know if that was correct either. It may be, but I’ve never read it in there. But, it is a legal concept that I told you you’ll always hear in a criminal case because that’s what they’re going to say. They don’t say my client’s not guilty. They just say he’s not guilty beyond a reasonable doubt.
DEFENSE COUNSEL: Your Honor, I’m going to object. There’s an implication here that Mr. Muldrew has to prove his innocence, and that’s clearly outside the rules, and I request the Court to enter a mistrial for the prosecution making that statement. That’s clearly outside the rules.
THE COURT: Motion for mistrial is denied. Is there any instructions (sic) requested?
DEFENSE COUNSEL: Instruction that the State knows full well that no Defendant in any criminal case has to prove anything.
THE COURT: Ladies and gentlemen, you will recall the instruction the Court gave you along these lines, and it’ll be handed to you for your perusal as you consider this case.

We agree with Muldrew that the prosecutor’s argument could well have suggested to the jury that the defendant had the burden of proving he was not guilty beyond a reasonable doubt. The issue then becomes whether the trial court’s admonition cured any prejudice. Muldrew contends that the trial court’s mild rebuke was insufficient in this respect. In support of his argument, he cites this court to Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958), where this court reversed the appellant’s conviction due to a “golden rule” argument made by the prosecutor who invoked the potential danger to the jurors’ daughters in the event of the appellant’s release. Muldrew further relies on Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922), where this court reversed the appellant’s conviction based on the “testimony” by the prosecutor in closing argument that he was convinced of the appellant’s guilt. We held that in neither case could the prejudice be removed by the admonition given by the trial court.

Although Muldrew concedes that the acts of the prosecuting attorney in the instant case do not constitute a “golden rule” argument or impermissible testimony by the prosecutor, he argues that the result in this case should be the same as in Adams v. State, supra, and Hughes v. State, supra, given the prosecutor’s status as a judicial officer and the blatant disregard of his rights on the burden-of-proof issue. He further contends that the admonition given was too mild and too general and did not suffice to cure the prejudice.

This court has recognized on multiple occasions that not every instance of prosecutorial misconduct mandates a mistrial and that any prejudice suffered may be cured by a proper admonition. See, e.g., White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). We have explained:

[A] mistrial is such an extreme remedy that it should not be used unless there has been error “so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifesdy affected.” Puckett v. State, 324 Ark. 81, 89, 918 S.W.2d 707, 711 (1996). A mistrial should only be declared when an admonition to the jury would be ineffective. Id. Moreover, the trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court’s decision absent a manifest abuse of discretion. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). We said in Lee: “[Rjemarks that require a reversal are rare and require an appeal to the jurors’ passions.” 326 Ark. at 532, 932 S.W.2d at 758.

Calloway v. State, 330 Ark. 143, 149-50, 953 S.W.2d 571, 574 (1997). See also Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).

We do not view the remark by the prosecutor in the case before us as the type that appeals to a juror’s passions, which was the case in both Adams v. State, supra, and Hughes v. State, supra. Moreover, here, the trial court admonished the jury by referring to the following standard instruction:

The State has the burden of proving the case beyond a reasonable doubt, and that is the State must prove beyond a reasonable doubt each element of the offense. On the other hand, the Defendant is not required to prove his innocence.

AMCI 2d 107. The trial court also instructed the jury with AMCI 2d 109, which provides that the presumption of innocence remains until the jury is convinced of the defendant’s guilt beyond a reasonable doubt.

There was no abuse of discretion by the trial court with respect to this first point.

For his second point, Muldrew argues that the prosecutor appealed to the jury’s passions by improperly including in his closing argument the theme of “send a message” to the community. The following closing argument and colloquy are pertinent:

PROSECUTOR: He was going to let drugs float around to wherever it could go as Betty McClure said, until it busts a heart out. I ask you to consider that. Let’s send a message to people in this community that we don’t really want these kind of folks around here.
DEFENSE COUNSEL: Your Honor, I object. That’s improper closing, send a message, that’s ground for mistrial to make that statement, I object.
THE COURT: It’s closing, it’s reasonably related to the evidence and to aid the jury. Ladies and gentlemen, you’re in a position to determine what the evidence is and from the evidence, make your decision. Any further instruction?

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Bluebook (online)
963 S.W.2d 580, 331 Ark. 519, 1998 Ark. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muldrew-v-state-ark-1998.