Burks v. State
| Decision Date | 28 January 2010 |
| Docket Number | No. CR 09–609.,CR 09–609. |
| Parties | Hutson BURKS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
David Cannon, Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.
Appellant Hutson Burks was convicted in Pulaski County Circuit Court of aggravated robbery and theft of property. The jury found him guilty of robbing two employees of the Metropolitan National Bank in Little Rock at gun point as they were refilling the drive-thru ATM machine. He took several thousand dollars in cash. Appellant was sentenced to concurrent terms of twenty-seven and eighteen years, respectively, in the Arkansas Department of Correction. Appellant raises two points of error on appeal. First, he asserts that the circuit court erred in denying his motion to suppress the testimony of Emma Mickles because the State had secured her testimony illegally through a writ of error coram nobis. Second, he argues that the circuit court erred in denying his motion for a mistrial when, during her testimony, Mickles impermissibly made reference to Appellant's prior drug use.
A three-judge panel of the Arkansas Court of Appeals, in an unpublished opinion, affirmed the circuit court on both points. Burks v. State, CACR 08–1369, 2009 WL 1478003 (unpublished). The court of appeals held that Appellant had no standing to attack Mickles's sentence reduction through a writ of error coram nobis. Id. The appellate court also found that the circuit court did not abuse its discretion in denying Appellant's motion for a mistrial, particularly since Appellant refused the court's offer of a curative instruction. Id. Pursuant to Ark. Sup.Ct. R. 2–4(c)(iii), we granted Appellant's petition for review of the decision by the court of appeals. When we grant review of a decision by the Arkansas Court of Appeals, we review the case as though the appeal was originally filed in this court. See Holt v. State, 2009 Ark. 482, at 2, 348 S.W.3d 562, 565.
Prior to trial, the State learned that Emma Mickles was a potential key witness in connection with the charges against Appellant. At the time, Mickles was already serving a prison sentence as a result of a negotiated plea to several unrelated criminal offenses. In exchange for her testimony at Appellant's trial, the State agreed to support Mickles's motion for a reduced sentence. On July 28, 2008, Mickles petitioned the circuit court for a writ of error coram nobis, based on her recently discovered status as an essential State witness. During the July 31, 2008 hearing on this motion, the circuit judge decided to postpone ruling on the motion until after Appellant's trial, and scheduled a hearing on the matter for a later date. The State also waived any potential issues as to the court's jurisdiction or the timeliness of Mickles's petition for a writ of error coram nobis.
Upon discovering this agreement between the State and Mickles, Appellant moved to suppress Mickles's testimony pursuant to Ark. R.Crim. P. 16.2. Appellant asserted in his motion, as he does now on appeal, that the use of a writ of error coram nobis was improper because the situation did not constitute one of the four instances when the writ may be used. According to Appellant, because the State was essentially buying Mickles's testimony through illegal means, he would be unduly prejudiced if she were allowed to testify. Although the circuit judge denied the motion to suppress, he noted that Appellant would be able to cross-examine Mickles about her agreement with the State.
At trial, Appellant cross-examined both Mickles and her defense attorney about her agreement to testify on behalf of the State. Shortly after Appellant's conviction, the circuit court granted Mickles's petition for a writ of error coram nobis, and, with the State's approval, suspended twelve years on her prior sentence.1
In response to Appellant's first point on appeal, the State contends that Appellant does not have standing to challenge the legality of the use of the writ of error coram nobis because (1) he was not a party to the criminal proceedings against Mickles, and (2) he was not directly affected by the circuit court's order granting Mickles's petition. Thus, according to the State, Appellant's argument below and on appeal constitutes an impermissible collateral attack on the circuit court's order reducing Mickles's sentence. Appellant denies the State's claim that he is seeking to challenge the writ per se. His motion, Appellant asserts, simply sought to suppress Mickles's testimony at his trial, although the basis for the motion happened to be that Mickles's testimony was obtained illegally, that is, through the issuance of an allegedly illegal writ of error coram nobis.
We agree that Appellant is not seeking to directly attack Mickles's sentence reduction.2 Instead, he sought to suppress her testimony at trial. His request, however, is focused on a threshold question: “Whether the writ of error coram nobis was legally granted.” Yet, the writ had not been granted at the time Mickles testified. Thus, it is the propriety of the agreement between Mickles and the State that is at issue here.3
It is routine in criminal prosecutions for the State to secure testimony under a plea bargain in which a defendant agrees to enter a plea of guilty in return for the State's promise to request a reduced sentence. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). The appropriateness of such an agreement may be checked by the trial court, as the “sentencing entity”: “the prosecutor may only request a reduced sentence; the trial court does not have to accept any plea agreement or its terms.” Id. at 653, 1 S.W.3d at 23. However, Mickles had already pled guilty and been sentenced to prison. Thus, her arrangement with the State was not a plea agreement. In any event, the only possible prejudice resulting from the arrangement would be that Mickles's testimony was tainted by her personal motivation to take the stand-the desire to secure a sentence reduction. The appropriate remedy for witness bias is to allow the defense to cross-examine the witness on the source of that bias and thereby impeach the witness's credibility. See Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70; Windsor v. State, supra. In the instant case, Appellant was given an opportunity to cross-examine both Mickles and her defense attorney regarding the nature of Mickles's arrangement with the State. Therefore, we cannot say that the circuit court erred in denying Appellant's motion to suppress. 4
During a pretrial hearing, Appellant moved in limine to exclude any testimony regarding Appellant's prior drug use or the fact that he used the money he obtained from the robbery to buy drugs. The circuit court held that the existence of large sums of money in Appellant's possession was relevant, but that the State needed to obtain specific permission before presenting any testimony that Appellant used the money to buy drugs. At trial, Mickles testified that some time after the date of the robbery, Appellant asked her to go to Chicago with him, but she refused. When the prosecutor asked her why, she explained that Appellant's cocaine use had made him paranoid. Appellant promptly objected, whereupon the prosecutor apologized and explained that he had expected Mickles to answer the question differently. He suggested that the court give a limiting instruction to the jury, which the judge offered to do. Appellant declined the offer of a curative instruction and instead moved for a mistrial.
On appeal, Appellant argues that Mickles's statement would have impermissibly led the jury to believe that Appellant robbed the bank in order to finance his cocaine addiction. Our standard of review for appeals of an order denying a mistrial motion is well established, and a circuit 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 circuit court has wide discretion in granting or denying a mistrial motion, and, absent an abuse of that discretion, the circuit court's decision will not be disturbed on appeal. Among the factors this court considers on appeal in determining whether or not a circuit 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.
King v. State, 361 Ark. 402, 405, 206 S.W.3d 883, 885 (2005) (citations omitted). It is also well settled that an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Zachary v. State, 358 Ark. 174, 188 S.W.3d 917 (2004). Where the possible prejudice could have been cured by an admonition to the jury, this court has found no abuse of discretion when defense counsel has refused the circuit court's offer of such a curative instruction. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Furthermore, we have held that remarks, which amount to inadvertent references to previous illegal conduct, may be cured by an admonition from the circuit court ordering the jury to disregard the statement. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993); Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992).
In the instant case, the State did not solicit Mickles's spontaneous remark about Appellant's prior drug use and immediately apologized for it. More importantly, Appellant ref...
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