Mays v. State, CR78-84

• Decision Date: 09 October 1978
• Docket Number: No. CR78-84,CR78-84
• Citation: 264 Ark. 353,571 S.W.2d 429
• Parties: Cleveland Odell MAYS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 429

571 S.W.2d 429

264 Ark. 353

Cleveland Odell MAYS, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-84.

Supreme Court of Arkansas, In Banc.

Oct. 9, 1978.

John W. Achor, Public Defender, Little Rock, for appellant.

Bill Clinton, Atty. Gen. by Joyce Williams Warren, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Cleveland Odell Mays was convicted in the Pulaski County Circuit Court of aggravated robbery and sentenced to twenty years in the Arkansas Department of Correction. On appeal he argues one error: the trial court should have granted a mistrial for improper remarks by the state's attorney. We agree, and reverse and remand the case.

During closing argument the deputy prosecuting attorney made certain improper remarks. Mays' attorney moved for a mistrial and it was denied. The remarks and colloquy between the lawyers and the court, which occurred before the jury, are verbatim as follows:

STATE'S ATTORNEY:

. . . What we have got here is a defendant who has gotten on the stand and lied repeatedly to you all, a defendant, I might add, who is an admitted dope pusher, an admitted heroin addict

DEFENSE ATTORNEY:

(Interposing) Judge, that is not true. I am going to move for a mistrial. There has been no admission by this man here that he was ever a dope pusher. I think it is highly improper and prejudicial.

THE COURT:

Disregard the statement by the prosecutor in regard to the

STATE'S ATTORNEY:

(Interposing) The jury will remember what he said on the stand.

THE COURT:

in regard to being a dope pusher and etcetra.

STATE'S ATTORNEY:

He is also an admitted, convicted felon. Not only is he a convicted felon of the witnesses that took the stand but the Stacker woman is a convicted felon. I forgot to ask her mother if she was. I don't guess she is and I can't say

DEFENSE ATTORNEY:

(Interposing) Judge, this is also improper, highly, and I again move for a mistrial.

STATE'S ATTORNEY:

I am just saying her mother is probably not a convicted felon.

DEFENSE ATTORNEY:

Judge, this is improper and I move for a mistrial.

THE COURT:

Mr. Allen, that will be the last of this, now. Disregard that statement by the prosecutor and I don't want to hear any more of it.

DEFENSE ATTORNEY:

Is my motion denied?

THE COURT:

Motion is denied.

There was not a shred of evidence that Mays was a "dope pusher" and the remark was highly prejudicial. See Moore et al. v. State, 227 Ark. 544, 299 S.W.2d 838 (1957). The attorney representing the state persisted in his remarks and conduct, hardly giving the court an opportunity to try to correct the error.

We have repeatedly said that a prosecuting attorney acts in a Quasi judicial capacity and that it is his duty to use all fair, honorable, reasonable and lawful means to secure a conviction of the guilty in a fair and impartial trial. However, the desire to obtain a conviction is never proper inducement for a prosecutor to include in his closing argument anything except the evidence in the case and legitimately deductible conclusions that may be made from the law applicable to a case. Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961).

We find that the prosecuting attorney's closing argument was highly improper, prejudicial, and was not cured by any admonition in this case; therefore, we reverse the decision of the trial court and remand the cause for a new trial.

Reversed and remanded.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice, dissenting.

Since I believe that the majority of this court has adopted a de novo approach to review of trial court actions in the case of prosecutorial misconduct, I must dissent from its action in this case. A de novo review of the oral argument is impractical, highly undesirable and a radical departure from well established precedent. Its adoption can only breed trouble for the judicial system as a whole and will result in a series of ad hoc decisions. The judges of this court are in a relatively poor position to evaluate the impact of reckless statements made in the heat of closing arguments, when compared with the superior position of the trial judge who sees and hears everything done and said in the presence of the jury during the course of the entire trial.

It is also a departure from precedent (to which the majority seems to be somewhat oblivious) to totally disregard the trial court's broad latitude of discretion in granting or denying a motion for mistrial. Not long ago, this court considered the matter in Holmes v. State, 262 Ark. 683, 561 S.W.2d 56, and said:

This Court has emphasized that the granting or denial of a motion for a mistrial is within the sound discretion of the trial court, and such discretion, when exercised, will not be disturbed on appeal unless it is shown to have been abused. Moreover, as we have also emphasized, declaring a mistrial is an extreme remedy which should be granted only where there has been an error so prejudicial that justice could not be served by a continuation of the trial. See: Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Hill v. State, 255 Ark. 720, 502 S.W.2d 649 (1973); Jackson v. State, 245 Ark. 331, 432 S.W.2d 876 (1968).

In a case involving improper statements of a prosecuting attorney in his opening statement and by a witness for the state during direct examination, the trial court admonished the prosecuting attorney to get to the issue in the case on trial, stating in effect, that what had happened the preceding year was not a matter of concern with the "present facts." See Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223. There, in holding that it was not error to deny a motion for mistrial, we applied the same rule that we have applied in considering oral arguments, i. e., a mistrial should not be granted unless the error is so prejudicial that justice cannot be served by a continuation of the trial. In the same sort of background, we have said that the award of a mistrial is a step so drastic that it is the exception rather than the rule in correcting an error, and to be warranted, it must be apparent that justice cannot be served by a continuation of the trial. Johnson v. State, 254 Ark. 293, 493 S.W.2d 115.

We have uniformly held that, in cases of denial of a motion for mistrial based upon prosecutorial improprieties, we will not reverse the judgment of the trial court in the absence of an abuse of the wide latitude of discretion vested in the trial judge in acting upon the motion or manifest prejudice to the complaining party. Brown & Bettis v. State, 259 Ark. 464, 534 S.W.2d 207. The manifest prejudice is that spoken of in such cases as Holmes an error so prejudicial that justice cannot be served by a continuation of the trial. See Hill v. State, 255 Ark. 720, 502 S.W.2d 649. We have always recognized and given regard to the trial judge's considerable degree of discretion in controlling and supervising arguments of attorneys at jury trials. See, e. g., McGill v. State, 253 Ark. 1045, 490 S.W.2d 449; Stanley v. State, 248 Ark. 787, 454 S.W.2d 72; Parrott v. State, 246 Ark. 672, 439 S.W.2d 924; Hicks v. State, 193 Ark. 46, 97 S.W.2d 900.

We have said that a wide range of discretion is allowed circuit judges in dealing with arguments of counsel, "since the presiding judge can best determine the effect of unwarranted arguments at the time the argument is made." Blanton v. State, 249 Ark. 181, 458 S.W.2d 373. We have recognized the trial judge's superior opportunity of knowing the context in which a statement in closing argument is made, the occasion for its having been made, and whether the jury may have been misled, as a deterrent to our finding a manifest abuse of discretion. Peters v. State, 248 Ark. 134, 450 S.W.2d 276.

In Williams v. State, 259 Ark. 667, 535 S.W.2d 842, we held that the trial judge had abused his discretion by overruling an objection made to the prosecuting attorney's misstatements and his assertions not supported by evidence and argument of matters outside the record. We addressed ourselves to appropriate action to be taken in such cases, saying:

When objection is made, the presiding judge should appropriately reprimand counsel and instruct the jury not to consider the statement, and in short, do everything possible to see that the verdict of the jury is neither produced nor influenced by such argument. Walker v. State, (138 Ark. 517, 212 S.W. 319). The failure to sustain a proper objection to argument of matters not disclosed by the record is serious error, because it gives the appearance that the improper argument has not only the sanction but the endorsement of the court. Miller v. State, 120 Ark. 492, 179 S.W. 1001; Hays v. State, 169 Ark. 1173, 278 S.W. 15; Elder v. State, 69 Ark. 648, 65 S.W. 938. It has even been said that the overruling of a proper objection to a statement amounting to a declaration of law is tantamount to the giving of an instruction to that effect. Autrey v. State, 155 Ark. 546, 244 S.W. 711. It is true that the trial judge has a wide latitude of discretion in the control of arguments to the jury, but it is not unlimited. Holcomb v. State, 203 Ark. 640, 158 S.W.2d 471; Todd v. State, 202 Ark. 287, 150 S.W.2d 46. It has been said that this court will always reverse where counsel goes beyond the record to state facts that are prejudicial to the opposite party unless the trial court has by its ruling removed the prejudice. Adams v. State, 176 Ark. 916, 5 S.W.2d 946. * * *

Cases in which we have found no abuse of discretion in denial of a motion for mistrial on account of statements in a closing argument, where an admonition to disregard the testimony has been given include: McGill v. State, supra; Johnson v. State, supra; Hicks v. State, 193 Ark. 46, 97 S.W.2d 900.

AMI, Civil, 101 was given to the jury here. We have heretofore been...