Cagle v. State

John Mauzy Pittman, Judge.

The appellant in this criminal case was charged with first-degree murder in connection with the death of Chis Odom. Although questions relating to appellant’s intent and state of mind were sharply disputed at his jury trial, there was no serious dispute concerning the events that transpired. There was evidence that appellant was romantically involved with Karen Castleberry, and that Ms. Castleberry had previously dated the victim. The appellant, Ms. Castleberry, and another friend went to a tavern on October 3, 1997. The victim was present at the tavern. Appellant played pool, and afterwards asked the victim to discuss something with him in the alley. After they grappled for a short time, appellant shot the victim twice. Appellant, Ms. Castleberry, and their friend left hastily in Ms. Castle-berry’s auto. Shortly afterward the auto was stopped by a policewoman. Appellant leapt out of the auto before it had fully stopped and fled. Ms. Castleberry and the other friend were taken into custody. They gave statements implicating appellant, who was apprehended soon afterward. At trial, appellant admitted shooting the victim, but testified that he was being choked by the victim and shot him in self-defense because he feared for his life. Appellant was convicted of first-degree murder and sentenced to forty years’ imprisonment. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in denying his request for a mistrial on the grounds that the prosecution improperly commented on his right to remain silent. Appellant also contends that the trial court erred in failing to prevent spectators at the trial from wearing buttons bearing the photograph of the victim, and in refusing to admit evidence showing that the victim had methamphetamine in his system at the time of his death. We affirm.

We first consider appellant’s argument that the trial court erred in denying his request for a mistrial on the grounds that the prosecution has improperly commented on his right to remain silent. Although it is true that the prosecution is prohibited from commenting on a defendant’s post-arrest, post-Miranda warning silence, Doyle v. Ohio, 426 U.S. 610 (1976), the prosecutor’s comment in the case at bar was in the context of appellant’s testimony that he shot the victim and fled from police because he was afraid. The prosecutor’s question, “Did it ever cross your mind to stop and tell the police the truth?” was directed specifically to impeaching appellant’s explanation of the reason for his flight — before he was Mirandized — and we think that Doyle therefore does not apply. See Fletcher v. Weir, 455 U.S. 603 (1982). However, even if the prosecutor’s question were capable of being understood as going toward appellant’s post-Miranda silence, we would not agree that a mistrial was mandated. The Arkansas Supreme Court has held that a limiting instruction will suffice to cure a Doyle violation where, as here, the possible prejudice could have been cured by an admonition to the jury. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). Similarly, in Wilkins v. State, 324 Ark. 60, 66, 918 S.W.2d 702, 705-706 (1996), the Arkansas Supreme Court said that:

[A] mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). An admonition is the proper remedy where the assertion of prejudice is highly speculative. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). Again, the absence of prejudice becomes apparent here in light of the fact that there was neither direct testimony in reference to Wilkins’s silence, nor did Wilkins’s attorney attempt to cure any alleged prejudice with a request for an admonition. This court has held that the failure to request a cautionary instruction or admonition may not inure to the appellant’s benefit on appeal. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).

We hold that any prejudice resulting from a misunderstanding of the prosecutor’s question would likely have been cured by an admonition, and that the trial court therefore did not err in denying appellant’s motion for a mistrial. See Muldrew v. State, 331 Ark. 519, 963 S.W.2d 580 (1998).

Next, appellant contends that the trial court erred in refusing to prohibit the spectators from wearing buttons bearing a photograph of the victim. Although we are not unsympathetic to this argument, we are unable to address it on the record before us. None of the buttons or the images portrayed on them are in the record; furthermore, there is no evidence in the record regarding the jurors’ reactions to the buttons. As we said in Kenyon v. State, 58 Ark. App. 24, 34-35, 946 S.W.2d 705, 710-11 (1997):

[I]t has not been demonstrated that the jury saw the badges being worn by some spectators or, if they did, that this affected their ability to be fair jurors. Also, it is not clear that the jury members, if they saw that some people were wearing badges, could tell what was on them. Appellant did not question the panel with regard to whether they saw the buttons and could tell what they were and whether this would influence their ability to sit fairly on the jury. Appellant has not demonstrated prejudice, as is necessary in order for this court to reverse, Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1985 (1985), and has failed to demonstrate that the trial court abused its discretion in denying his motion for mistrial.

The appellant in the present case has likewise failed to demonstrate prejudice, and we must therefore affirm on this point.

Finally, appellant argues that the trial court erred in excluding evidence that the victim had methamphetamine in his system at the time of his death. Appellant argued that, because the victim had a powerful and dangerous drug in his system, appellant was right to be afraid for his life, and therefore was justified in killing the victim in self-defense. This argument might be mérito-rious if there had been any evidence to show that appellant knew that the victim was taking methamphetamine, or that the victim’s behavior was such that appellant could reasonably have inferred the victim was under the influence of the drug. However, no such evidence appears in the record. We think that the evidence of methamphetamine in the victim’s blood was only conditionally relevant to the question of appellant’s state of mind and, the other conditions not having been shown, it was not error to exclude it. See Ark. R. Evid. 104(b).

Affirmed.

Jennings, Bird, Stroud, and Neal, JJ., agree. Roaf, J., dissents.