Glenn v. State , 2014 Ark. App. LEXIS 930 ( 2014 )

Cite as 2014 Ark. App. 642
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-376
Opinion Delivered November 12, 2014
DERRICK DEMOND GLENN APPEAL FROM THE BRADLEY
APPELLANT COUNTY CIRCUIT COURT
[No. CR-2013-16-4]
V.
HONORABLE DON GLOVER, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellant Derrick Glenn was convicted by a Bradley County jury of theft of property,
a Class A misdemeanor, and sentenced to pay $950 in restitution along with court costs and
fees.1 For his sole point of appeal, he contends that the trial court abused its discretion by
denying his motion for a mistrial, which he made during voir dire in response to a prospective
juror’s question in open court. We affirm.
During voir dire, the trial court asked the panel if anyone had heard or read about the
case. One of the prospective jurors, Robert Loflin, asked, “Is this the mistrial?” Out of the
hearing of the rest of the jury panel, a bench conference was held, and the following exchange
occurred:
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Glenn was also charged by the State with the offense of breaking or entering, a Class
D felony; however, the State voluntarily withdrew that charge when the jury was unable to
reach a verdict.
Cite as 2014 Ark. App. 642
THE COURT: [W]hat did you hear about it?
LOFLIN: It was in the paper . . . . Just read it in the paper, two
mistrials . . . . This is one of them. I don’t know anybody
involved.
THE COURT: Sure. Based on what you read in the newspaper, would that
have a bearing upon you one way or the other?
LOFLIN: Not really. There wasn’t much in the paper.
....
PROSECUTOR: What exactly do you remember about what you read?
LOFLIN: All the paper said was two mistrials.
PROSECUTOR: Did it give any information?
LOFLIN: They didn’t give no names.
GLENN COUNSEL: What do you mean by names? You mean the defendant?
LOFLIN: No. It wasn’t on there.
GLENN COUNSEL: So how did you know that this – you were inquiring if this
was a mistrial?
LOFLIN: I got called for jury duty. I keep track of it.
Following this colloquy, Glenn’s counsel moved for a mistrial. The trial court took the
matter under advisement. The trial court then asked in open court, in the presence of the other
potential jurors, “Has any – this is the case of State of Arkansas vs. Derrick Glenn. Has anybody
read about this or heard about it or heard talk about this case? If you have, I want you to come
up one at a time and tell me about it.” No jurors responded. Voir dire continued, and the twelve-
person jury was selected. It included Loflin. After the jury was selected, the trial court denied the
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Cite as 2014 Ark. App. 642
motion for mistrial and asked counsel for the State and Glenn, “Is this a good jury?” Both
attorneys answered yes. The trial proceeded, and the jury found Glenn guilty of theft of
property.
Glenn’s sole argument on appeal is that the trial court abused its discretion in denying
the motion for mistrial. He argues that Loflin’s question tainted the entire panel. Our standard
of review for appeals of an order denying a mistrial motion is well established, and a trial court’s
refusal to grant a mistrial is difficult to overcome:
A mistrial is an extreme and drastic remedy that will be resorted to only 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. The [trial]
court has wide discretion in granting or denying a mistrial motion, and, absent an abuse
of that discretion, the [trial] court’s decision will not be disturbed on appeal. Among the
factors this court considers on appeal in determining whether or not a [trial] court abused
its discretion in refusing to declare a mistrial are whether the prosecutor deliberately
induced a prejudicial response and whether an admonition to the jury could have cured
any resulting prejudice.
Burks v. State, 2009 Ark. 598, at 7, 359 S.W.3d 402, 407 (citing King v. State, 361 Ark. 402, 405,
206 S.W.3d 883, 885 (2005)).
In Meny v. State, 314 Ark. 158, 161, 861 S.W.2d 303, 305 (1993), a juror made the
unsolicited comment during voir dire that “[w]e’ve all heard and read the paper, newspaper of
the incident.” Counsel for the defendant moved for a mistrial, arguing that the comment had
tainted the jury. Id., 861 S.W.2d at 305. The trial court denied the motion, and the supreme court
affirmed, holding that there was no prejudice because it was shown that the prospective jurors
could set aside the comment and base their decisions on the testimony at trial. Id. at 161–62, 861
S.W.2d at 305.
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Cite as 2014 Ark. App. 642
In Meny, all of the jurors heard the unsolicited comment; however, because the trial court
confirmed that the jurors could set aside the comment and decide the case based on the
evidence, no prejudice was shown. Id. at 161–62, 861 S.W.2d at 305. In the case at bar, there is
likewise no manifest prejudice. First, Loflin’s comment was actually a question, which naturally
conveyed a level of uncertainty—not fact.2 Second, Glenn has provided no proof from the other
members of the jury panel that they actually heard Loflin’s question or, assuming they did, that
the question influenced them in any way. Third, after Loflin’s question the trial court confirmed
with the other members of the panel that they had not read or heard anything about Glenn’s
case. Based on these facts, we hold that Glenn failed to demonstrate manifest prejudice.
Therefore, the trial court did not abuse its discretion when it denied Glenn’s motion for mistrial.
Affirmed.
GLOVER and WOOD, JJ., agree.
Potts Law Office, by: Gary W. Potts, for appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.
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At a bench conference, Loflin confirmed his uncertainty when he stated that he did not
know if the “mistrial” involved Glenn’s case. Loflin added that no defendants’ names or any
other details were included in what he had read.
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