Jackson v. State

• Court: Arkansas Supreme Court
• Writing for the Court: ROBERT L. BROWN
• Citation: Jackson v. State, 2011 Ark. 9, 429 S.W.3d 176 (Ark. 2011)
• Decision Date: 20 January 2011
• Docket Number: No. CR 10–43.,CR 10–43.
• Parties: Michael D. JACKSON, Appellant, v. STATE of Arkansas, Appellee.

2011 Ark. 9

429 S.W.3d 176

Michael D. JACKSON, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–43.

Supreme Court of Arkansas.

Jan. 20, 2011.

ROBERT L. BROWN, Justice.

Appellant Michael Dashaun Jackson was convicted of capital murder, criminal attempt to commit capital murder, and aggravated robbery, with a firearm enhancement, and sentenced to life in prison without parole. He raises three points for reversal. None of the points raised have merit, and we affirm.

The facts underlying his conviction and sentence are straightforward. On November 13, 2007, three men, Jackson, Sammie Madden, and Cherick Coleman, entered the home of David Rogers in North Little Rock. Rogers operated a candy and snack store from his home and also sold Avon products. Rogers's stepson, Shawn Bisbee, lived in the home in exchange for helping Rogers operate the store. Rogers testified that the three men demanded money, forced him to lie face down on the floor of the dining room, and took Bisbee back to a bedroom. Rogers emptied the cash register and one lockbox hidden in the home. Rogers also told the men about a gun he kept hidden under the cash register. Coleman testified at trial that only Jackson and Madden were armed with guns when they entered but Jackson handed him the gun taken from under the cash register.

While Rogers was in the dining room, at least one of the three intruders was searching the bedroom where Bisbee was also forced to lie face down on the floor. There was a second lockbox hidden under Rogers's bed, but Rogers could not find a key to unlock it. At this point, Rogers testified he was taken to the bedroom and was forced to lie face down on the floor. He testified that both he and Bisbee were struck in the back of the head with pistols. When Rogers could not open the second lockbox, Bisbee was stabbed in the back by Jackson four times, and his throat was cut by Jackson.¹ Jackson then shot Bisbee and Rogers in the back of the head before all three fled the home. Coleman testified that he dropped the gun he was given by Jackson in the front yard. Rogers survived the attack, but Bisbee died as a result of his injuries.

The three points mounted by Jackson for reversal are: (1) the trial court erred in refusing to grant him a mistrial after the prosecutor elicited testimony from a witness that had already been ruled inadmissible; (2) the trial court erred in refusing to allow the defense to question co-defendant Cherick Coleman about a subsequent arrest and misdemeanor gun-possession charge because the gun possession was relevant to determining credibility; and (3) the trial court erred in excluding the testimony about a bag of a substance that may have been marijuana found by police officers at the Rogers's residence after the crime.

For each of Jackson's three points on appeal, this court applies an abuse-of-discretion standard in its review. The trial court has wide discretion in granting or denying a motion for mistrial, and, absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Smith v. State, 354 Ark. 226, 243, 118 S.W.3d 542, 552 (2003). In addition, it is well settled that the admission or rejection of evidence is left to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Davis v. State, 362 Ark. 34, 44, 207 S.W.3d 474, 482 (2005).

Jackson's first point on appeal is that the trial court abused its discretion in refusing to grant a mistrial after the prosecutor elicited testimony from a state witness, Charmella Powell, concerning information previously deemed inadmissible. Prior to trial, the State notified the trial court that Jackson's brother, Christopher Jackson, allegedly went to Powell's home and threatened her about her testimony. In response to this, the trial court banned Christopher Jackson from the courtroom during Powell's testimony and admonished all of the spectators present in the court not to have contact with any witnesses. The trial court, in addition, made the following statement to the attorneys, “[a]lso, unless there was some allegation that the Defendant was involved in this, then it won't be mentioned, of course, in front of the jury.”

During direct examination of Powell, the State asked the following questions:

Prosecutor: Okay. I mean do you know [Jackson's] family?

Witness: No, ma'am.

Prosecutor: All right. You came to court this morning, correct?

Witness: Yes, ma'am.

Prosecutor: Did someone come to see you before court?

Witness: Yes, ma'am.

At this point, Jackson's counsel objected and first moved for a mistrial or, alternatively, for an admonition to the jury to disregard the question.² The basis for the objection was that eliciting information regarding witness intimidation was improper and prejudicial in the absence of any evidence that Jackson himself elicited, authorized, solicited, or in some way commanded his brother to go visit Powell. The court denied the motion for mistrial, saying:

Your motion for mistrial is denied at this time. Your motion to prevent her from testifying to anything further about this is granted. And regardless of whether she's scared or not or has any rational foundation for that, unless there's a connection to [Jackson], it is unfairly prejudicial.... We've brought out something that I specifically said not to bring out. One more misstep and I'm going to have to grant his motion for mistrial.

The trial court then instructed the jury to ignore the last question. On appeal, Jackson argues that the unsupported implication that Jackson was involved in threatening Charmella Powell and the prosecutor's disregard of the trial court's specific directive warranted a mistrial for two reasons. First, the defense maintains that the only purpose of the question regarding a visit before the trial began, and indeed the only effect, was to prejudice the jury. Further, the defense urges that there is no other way to deter prosecutors from violating court orders than to grant a mistrial for this incident of flagrant disobedience. We disagree with Jackson's argument on this point.

Jackson cites this court to Williams v. State, 2010 Ark. 89, 377 S.W.3d 168, and four other cases cited therein, to support his contention that the prosecutor's questioning in this case was so patently prejudicial that it warranted a mistrial. The testimony at issue in this case, however, is drastically different from what occurred in Williams and those other cases. In Williams, the witness testified falsely that the defendant, Roderick Williams, had previously been convicted of terroristic threatening for threats made to the murder victim. Defense counsel objected and requested a mistrial, contending that a curative instruction was insufficient. This court noted that even though there was no proof that Williams had been convicted of terroristic threatening, or that the nolle-prossed charges for terroristic threatening involved an incident with the victim, the State received the benefit of the prejudicial testimony. Williams, 2010 Ark. 89, at 7, 377 S.W.3d 168. We held that the statement was so prejudicial that it could not be cured by an admonition to the jury. Id.

To support our decision in Williams, this court cited four other cases as precedent, starting with Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). In Moore, during cross-examination by defense counsel, a witness who testified that the defendant had confessed to killing the woman was asked if anyone else was present at the time of the confession. The witness answered, “No, but he admitted to killing another woman to his brother.” Moore, 323 Ark. at 536, 915 S.W.2d at 288. This court held that the trial court's denial of the motion for mistrial was an abuse of discretion in the face of such a patently inflammatory and prejudicial statement. Id. at 537, 915 S.W.2d at 289.

The next case discussed in Williams was Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984), in which the State elicited testimony that the defendant, who was on trial for rape, had given marijuana to children. The defendant moved for a mistrial, but the trial court denied the motion and admonished the jury to disregard the testimony. This court reversed due to the irrelevant and prejudicial nature of the testimony, stating that the admonition was useless because the damage had already been done. Lackey, 283 Ark. at 153, 671 S.W.2d at 759.

This court in Williams next reviewed Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990). In Wingfield, we held that the trial court abused its discretion in denying the defendant's motion for mistrial where, during direct examination by defense counsel, a law enforcement officer referenced a polygraph examination that he had given to another witness which was favorable to the prosecution. This court reversed, finding that the reference to the polygraph examination was an attempt by the police officer to bolster the veracity and credibility of a witness and, therefore, constituted prejudicial error. Wingfield, 303 Ark. at 297, 796 S.W.2d at 577.

The final case discussed in the Williams decision was Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). In Green, the defendant was tried on four counts of capital murder and one count of kidnapping. At trial, a witness for the State testified that she was afraid for her brother, one of the murder victims, because her brother and her nephew had stolen some of the defendant's marijuana plants, and her nephew had died mysteriously after the theft. Upon reviewing the testimony, this court held that the statement was clearly prejudicial and alluded to the witness's belief that the defendant played a role in her nephew's murder and disappearance and that no admonition could have cured this statement. Green, 365 Ark. at 495, 231 S.W.3d at 652.

The answer at issue in this case does not approximate the prejudice occasioned by these cited cases. To reiterate, the actual question...