Ashlock v. State

• Decision Date: 16 December 1998
• Docket Number: No. CA,CA
• Citation: 983 S.W.2d 448,64 Ark.App. 253
• Parties: Curtis ASHLOCK, Appellant, v. STATE of Arkansas, Appellee. CR 98-157.
• Court: Arkansas Court of Appeals

Page 448

983 S.W.2d 448

64 Ark.App. 253

Curtis ASHLOCK, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 98-157.

Court of Appeals of Arkansas Division II.

Dec. 16, 1998.

Robert C. Marquette, Van Buren, for appellant.

Winston Bryant, Atty. Gen., Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

WENDELL L. GRIFFEN, Judge.

Curtis Ashlock appeals from his convictions of kidnapping and rape in Crawford County Circuit Court on July 11, 1997. He argues on appeal that: 1) the trial court erred by failing to declare a mistrial when a witness volunteered evidence of other bad acts; 2) the trial court erred by failing to declare a mistrial when a juror, less than one hour into deliberations, reported an inability to be impartial; 3) the court erred by failing to declare a mistrial after a juror became ill and was unable to continue deliberations; and, 4) the trial court erred by usurping the role of the jury in determining sentence. We disagree and affirm.

After her work shift ended on the morning of August 28, 1996, and she missed her ride home, RKP began walking along Interstate 40 in Shawnee, Oklahoma, toward her home. Ashlock offered RKP a ride. She accepted. When he stopped at the McLoud exit, Ashlock asked RKP to help him remove a vacuum cleaner from the back of the truck's cab. When she attempted to remove the item, Ashlock struck her repeatedly, threatened her with a knife, bound her with duct tape and rope, covered her mouth and eyes, and left her on a mattress in the back of the cab. Ashlock then drove from Oklahoma to Utah, Idaho, and Wyoming. During this trek, Ashlock forced RKP to perform various sex acts and tied her up between each incident. On various occasions the two were around other parties, including a brief encounter with a police officer after Ashlock was stopped for a traffic violation. RKP was also left alone at times but did not attempt to escape or cry for help. She testified that she did not attempt escape because of threats that Ashlock made against her and her family. Ashlock eventually returned to Arkansas where they switched from his truck to a car and he forced her to have sex with him again while blindfolded and bound. He then took her to the Arkansas River, forced her underwater, threw rocks at her, and left her in the river.

RKP managed to make her way to the bank of the river and work her hands free. She hid in soybean fields until she found a dwelling where other persons took her to the nearest hospital. There, RKP discovered that she was in Van Buren, Arkansas, and told police what had transpired. Based on these facts, Ashlock was charged with attempted capital murder, kidnapping, and rape.

The jury found Ashlock guilty of kidnapping and rape on July 11, 1997. Before the jury could reach a verdict on the charge of attempted capital murder one juror became ill, so a mistrial was declared on that charge on July 14, 1997. Over appellant's objection, the court dismissed the jury and sentenced Ashlock to fifty years' imprisonment on the kidnapping charge and to sixty years' imprisonment on the rape charge, with the sentences to be served consecutively.

Testimony of Appellant's Prior Time in Prison

After Ashlock returned to Arkansas with RKP, Officer Ron Brown of the Alma Police Department stopped him on September 1, 1996, for a traffic violation. During direct examination by Ashlock's counsel, Officer Ron Brown testified that Ashlock talked about time he spent in prison during the traffic stop. The questioning proceeded as follows:

Q: Obviously, there was nothing in this meeting or confrontation, there was nothing in this time or during your conversation with Mr. Ashlock, out of the ordinary, as far as you said in your report, or made any notion about[--]

A: The only unordinary thing, was when I asked him about his papers on his vehicle, he told me and we talked about the form at a traffic stop is for a warning--it was kind of a lengthy traffic stop and we just engaged in conversation. He told me he had spent ten years of his life in prison, and that he was---

Counsel objected, and requested that the court instruct the jury to ignore and disregard the comment about Ashlock's prison record, stating that he was "not going to suggest that this witness had [made] that comment on purpose." The trial court agreed and instructed the jury to disregard the comment. After Officer Brown completed his testimony, Ashlock moved for a mistrial. Now Ashlock argues that the trial court committed reversible error by denying his motion.

Rule 404(b) of the Arkansas Rules of Evidence provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." The trial court is given discretion in admitting or rejecting these matters, to be reversed on appeal where there is a manifest abuse of discretion. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). A mistrial is a drastic remedy, which should only be used when the error is so prejudicial that justice cannot be served by an admonition. Id. Motions and objections must be made at the time the objectionable matter is brought to the jury's attention, or they are otherwise waived. Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996).

Here, Ashlock argues that Officer Brown's testimony was prohibited by Rule 404 and that an admonition was insufficient. However, the motion was not made until after the witness completed his testimony having been cross-examined and even questioned further on redirect. Thus, Ashlock's motion for mistrial was untimely. We also hold that the motion was waived when appellant asked for an admonition and nothing more at the time of the objection.

The Impartial Juror

Less than an hour into deliberations, the jury foreman sent the judge a note that read: "We have one jurror [sic] that after seeing people in the court room, feels like they cannot be impartial." The trial judge expressed to counsel a desire to conduct an inquiry of the jury, but counsel for Ashlock stated that he was opposed to an inquiry until after deliberations ended, rather than before further deliberations occurred. Accordingly, the trial judge did not investigate but admonished the jury as follows:

Well, ladies and gentlemen, of course you've gone through the voir dire process. You have been accepted as jurors. You have taken an oath to follow the law and the evidence. It's a little bit late at this hour to begin talking about being impartial. You have agreed to be impartial by being accepted on the voir dire process. You will need to go and deliberate.

The jury then retired for deliberations.

It is clear that when a juror admits inability to remain impartial the integrity of the trial process is called into question. "Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case." Rhoden v. Stephens, 239 Ark. 998, 1000, 395 S.W.2d 754, 755 (1965) (quoting Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940)). The Arkansas Supreme Court has stated:

Courts and Judges must always see that every person receives a fair and impartial trial before a fair and impartial jury. The Courts are the last bulwark of freedom and justice.

Smith v. State, 227 Ark. 332, 340, 299 S.W.2d 52, 56 (1957). The appellant is entitled to a trial by twelve impartial and unprejudiced jurors who base their decision on the evidence as presented at trial. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985). When actual bias, as opposed to implied bias, is called into question, the qualification of the juror is within the discretion of the court, because the trial judge is "in a better position to weigh the demeanor of the prospective juror's response to the questions on voir dire." Boyd v. State, 318 Ark. 799, 803, 889 S.W.2d 20, 22 (1994); see Barker v. State, 21 Ark.App. 56, 728 S.W.2d 204 (1987). The test is whether "the prospective juror can lay aside his impression or opinion and render a verdict based upon the evidence in court." Breedlove v. State, 62 Ark.App. 219, 223, 970 S.W.2d 313, 315 (1998). The trial court's decision will not be reversed absent an abuse of discretion. Id.

Here, the juror was not polled or questioned by the judge to determine whether the report of bias or prejudice was unfounded or, if founded, could be set aside. However, this failure to investigate the source of the reported juror bias resulted from the appellant's refusal to accept the trial court's offer to investigate, and not from the court's failure to protect appellant's right to a fair trial. Ashlock now claims that the trial court's acquiescence in his position was reversible error, and that the trial court erred by not declaring a mistrial after the jury returned adverse verdicts. Having received all the relief requested, Ashlock cannot complain on appeal that he did not receive a fair trial. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Appellant cannot seriously argue that the court was under a duty to investigate the jury bias regardless of his request, as there is no plain-error rule in Arkansas. Duncan v. State, 38 Ark.App. 47, 828 S.W.2d 847 (1992)....