Richmond v. State

791 S.W.2d 691, 302 Ark. 498, 1990 Ark. LEXIS 309
Supreme Court of Arkansas·Decided June 18, 1990·No. CR90-3·Published·Cited by 39 cases

Opinion

Tom Glaze, Justice.

This is an appeal from the appellant’s conviction of first degree murder. In a bifurcated trial, the jury sentenced the appellant to life imprisonment. Appellant raises eight points for reversal in his appeal. We find no error and therefore affirm.

Because the appellant does not challenge the sufficiency of the evidence on appeal, only the following facts are necessary for an understanding of this case. In the evening on February 22, 1989, David Masters was shot four times with a high powered rifle at close range while he was sitting in his pickup truck. Masters died from the shots to his head, neck and face, and according to the medical examiner’s testimony, each shot would have been fatal. The victim was discovered in his truck the next day by road workers. The medical examiner estimated the time of death to have been between 8:00 and 8:30 p.m. on February 22, 1989. Earlier in the evening on February 22, the appellant and Mitchell Miles were seen talking with the victim.

Mitchell Miles, who claimed he was an eyewitness to the murder, testified for the state at the trial. According to Miles, at the appellant’s request, he went to Masters’ place of business earlier that day and told him that the appellant had gotten busted the night before while making a drug run for Masters. Miles also stated that he was with the appellant that night when they met the victim at a gas station and drove to where the killing occurred. Miles stated that he was by the victim’s truck talking with him when the appellant began to shoot. Masters had a syringe in his pocket when he was discovered, and the state’s theory at the trial was the killing occurred because of a drug deal that when sour.

As his first point for reversal, the appellant argues that the trial court erred in not granting his motion for a mistrial when the wife of the victim had an emotional outburst during her testimony at the trial. After Martha Masters identified the appellant, she made the following unsolicited statement: “God. How could you do that to him? You devil.” The trial court denied the appellant’s motion for a mistrial but gave an admonishment to the jury for them not to consider the emotional outburst when deliberating on the case and for them to follow the court’s instructions on the law.

We have frequently stated that a motion for a mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. See, e.g., King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Id. While generally a cautionary instruction to the jury like the one given in this case will take care of such unusual events, we have recognized that there are circumstances where statements or actions in the jury’s presence are so highly prejudicial that they violate the accused’s right to a fair trial, and no admonition to the jury can cure them. Id. But, such is not the case here.

Appellant cites to Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976), wherein we stated that emotional outbursts by the relatives of murder victims and by victims of crimes are not unusual and are difficult to control. He states we found the trial court did not abuse its discretion in denying a mistrial in Venable because no accusatory remark or remarks were made at the accused. Here, he argues, Ms. Masters made accusatory remarks toward the appellant and for that reason, the mistrial should have been granted. We disagree.

In Venable, the outbursts were made by two witnesses, one of whom was a victim. One witness, after having identified the defendant at trial, then immediately exclaimed, “Oh, my God! Why, Lord, why Donnie, why Donnie, why? Why would anybody want to kill him (crying).” Obviously, the witness’s remarks in Venable were prompted by her having identified the defendant. Nevertheless, while we viewed the witness’s remarks as being nonaccusatory, this court’s decision to uphold the trial court’s ruling denying a mistrial turned on its deference to the trial court’s discretion in these matters. In this respect, we said the following:

The trial judge must have been aware of all that took place in his presence and was in a better position to evaluate the impact of these occurrences than anyone else. He had a wide latitude of discretion in the control of the trial. Utilization of the extreme and drastic remedy of declaration of a mistrial should be a last resort.

We have upheld the trial court’s denial of motions for mistrial where a crime victim fainted in the presence of the jury, King, 298 Ark. 476, 769 S.W.2d 407, and where a relative of a crime victim made an emotional outburst during her testimony, Venable, 260 Ark. 201, 538 S.W.2d 286. Here, Ms. Masters’ statement was spontaneous and unsolicited. After making such an outburst, she was excused from the witness stand and a recess was immediately called. After the recess, the trial court carefully admonished the jury not to consider the outburst in any way in their deliberation of the case. Under such circumstances, we cannot say the trial court abused its discretion in not granting the appellant’s motion for a mistrial.

Next, the appellant argues that the trial court erred in admitting into evidence a letter written by the victim to his parents while he was in a drug rehabilitation program. In addition to expressing remorse for the trouble he had caused his family, the victim, Masters, stated in this letter that his parents should tell the following to anyone who asked where he is: “We have got to lock up the dealers so the young ones don’t have to go through all the misery and despair we have known for 20 years.” The appellant argued below and now on appeal that the letter is hearsay and irrelevant evidence. We disagree.

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Richmond v. State, 791 S.W.2d 691, 302 Ark. 498, 1990 Ark. LEXIS 309 (Ark. 1990).

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