{ "id": 1604759, "name": "Wilbert MULDREW v. STATE of Arkansas", "name_abbreviation": "Muldrew v. State", "decision_date": "1998-02-19", "docket_number": "CR 97-561", "first_page": "519", "last_page": "524", "citations": [ { "type": "official", "cite": "331 Ark. 519" }, { "type": "parallel", "cite": "963 S.W.2d 580" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-90-801", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "pin_cites": [ { "page": "(a)(5)" } ], "opinion_index": 0 }, { "cite": "319 Ark. 640", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453646 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0640-01" ] }, { "cite": "324 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9161496 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "704" }, { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0526-01" ] }, { "cite": "327 Ark. 113", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922743 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0113-01" ] }, { "cite": "322 Ark. 647", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447563 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0647-01" ] }, { "cite": "330 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298602 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "149-50" }, { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ark/330/0143-01" ] }, { "cite": "932 S.W.2d 756", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "326 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "year": 1996, "pin_cites": [ { "page": "532" } ], "opinion_index": 0 }, { "cite": "324 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158449 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "89" }, { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0081-01" ] }, { "cite": "308 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904334 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0137-01" ] }, { "cite": "310 Ark. 690", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898804 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0690-01" ] }, { "cite": "330 Ark. 813", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298566 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0813-01" ] }, { "cite": "243 S.W. 70", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 0 }, { "cite": "154 Ark. 621", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1361174 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ark/154/0621-01" ] }, { "cite": "229 Ark. 777", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702611 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0777-01" ] } ], "analysis": { "cardinality": 548, "char_count": 9052, "ocr_confidence": 0.753, "pagerank": { "raw": 1.0213650653198719e-07, "percentile": 0.5453219473413314 }, "sha256": "9ac6d9d08eca58e21b1661ab093dc628ef30fdcb0b51c860b3387c1feefd2bfb", "simhash": "1:82ebcb22eba6d422", "word_count": 1536 }, "last_updated": "2023-07-14T15:04:18.346145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wilbert MULDREW v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Wilbert Muldrew appeals his convictions on three counts of delivery of crack cocaine and his sentence of forty years on each count, with the three sentences to run consecutively. He raises two points on appeal, both of which relate to allegations of impropriety in the prosecutor\u2019s closing argument. We hold that neither count has merit, and we affirm.\nMuldrew\u2019s first issue relates to the following closing argument and the ensuing colloquy:\nPROSECUTOR: I want to read you the reasonable doubt instruction that [defense counsel] says is in our constitution. I don\u2019t know if that was correct either. It may be, but I\u2019ve never read it in there. But, it is a legal concept that I told you you\u2019ll always hear in a criminal case because that\u2019s what they\u2019re going to say. They don\u2019t say my client\u2019s not guilty. They just say he\u2019s not guilty beyond a reasonable doubt.\nDEFENSE COUNSEL: Your Honor, I\u2019m going to object. There\u2019s an implication here that Mr. Muldrew has to prove his innocence, and that\u2019s clearly outside the rules, and I request the Court to enter a mistrial for the prosecution making that statement. That\u2019s clearly outside the rules.\nTHE COURT: Motion for mistrial is denied. Is there any instructions (sic) requested?\nDEFENSE COUNSEL: Instruction that the State knows full well that no Defendant in any criminal case has to prove anything.\nTHE COURT: Ladies and gentlemen, you will recall the instruction the Court gave you along these lines, and it\u2019ll be handed to you for your perusal as you consider this case.\nWe agree with Muldrew that the prosecutor\u2019s argument could well have suggested to the jury that the defendant had the burden of proving he was not guilty beyond a reasonable doubt. The issue then becomes whether the trial court\u2019s admonition cured any prejudice. Muldrew contends that the trial court\u2019s mild rebuke was insufficient in this respect. In support of his argument, he cites this court to Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958), where this court reversed the appellant\u2019s conviction due to a \u201cgolden rule\u201d argument made by the prosecutor who invoked the potential danger to the jurors\u2019 daughters in the event of the appellant\u2019s release. Muldrew further relies on Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922), where this court reversed the appellant\u2019s conviction based on the \u201ctestimony\u201d by the prosecutor in closing argument that he was convinced of the appellant\u2019s guilt. We held that in neither case could the prejudice be removed by the admonition given by the trial court.\nAlthough Muldrew concedes that the acts of the prosecuting attorney in the instant case do not constitute a \u201cgolden rule\u201d argument or impermissible testimony by the prosecutor, he argues that the result in this case should be the same as in Adams v. State, supra, and Hughes v. State, supra, given the prosecutor\u2019s status as a judicial officer and the blatant disregard of his rights on the burden-of-proof issue. He further contends that the admonition given was too mild and too general and did not suffice to cure the prejudice.\nThis court has recognized on multiple occasions that not every instance of prosecutorial misconduct mandates a mistrial and that any prejudice suffered may be cured by a proper admonition. See, e.g., White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). We have explained:\n[A] mistrial is such an extreme remedy that it should not be used unless there has been error \u201cso prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifesdy affected.\u201d Puckett v. State, 324 Ark. 81, 89, 918 S.W.2d 707, 711 (1996). A mistrial should only be declared when an admonition to the jury would be ineffective. Id. Moreover, the trial court is given broad discretion to control counsel in closing arguments, and this court will not disturb the trial court\u2019s decision absent a manifest abuse of discretion. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). We said in Lee: \u201c[Rjemarks that require a reversal are rare and require an appeal to the jurors\u2019 passions.\u201d 326 Ark. at 532, 932 S.W.2d at 758.\nCalloway v. State, 330 Ark. 143, 149-50, 953 S.W.2d 571, 574 (1997). See also Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).\nWe do not view the remark by the prosecutor in the case before us as the type that appeals to a juror\u2019s passions, which was the case in both Adams v. State, supra, and Hughes v. State, supra. Moreover, here, the trial court admonished the jury by referring to the following standard instruction:\nThe State has the burden of proving the case beyond a reasonable doubt, and that is the State must prove beyond a reasonable doubt each element of the offense. On the other hand, the Defendant is not required to prove his innocence.\nAMCI 2d 107. The trial court also instructed the jury with AMCI 2d 109, which provides that the presumption of innocence remains until the jury is convinced of the defendant\u2019s guilt beyond a reasonable doubt.\nThere was no abuse of discretion by the trial court with respect to this first point.\nFor his second point, Muldrew argues that the prosecutor appealed to the jury\u2019s passions by improperly including in his closing argument the theme of \u201csend a message\u201d to the community. The following closing argument and colloquy are pertinent:\nPROSECUTOR: He was going to let drugs float around to wherever it could go as Betty McClure said, until it busts a heart out. I ask you to consider that. Let\u2019s send a message to people in this community that we don\u2019t really want these kind of folks around here.\nDEFENSE COUNSEL: Your Honor, I object. That\u2019s improper closing, send a message, that\u2019s ground for mistrial to make that statement, I object.\nTHE COURT: It\u2019s closing, it\u2019s reasonably related to the evidence and to aid the jury. Ladies and gentlemen, you\u2019re in a position to determine what the evidence is and from the evidence, make your decision. Any further instruction?\nDEFENSE COUNSEL: Your Honor, I just think the Supreme Court has said that you can\u2019t do that, and that\u2019s, that\u2019s illegal, that\u2019s improper to, to indicate that, that this jury should send a message to the community about anything, and that that is certainly grounds for a mistrial, and I make a motion at this time.\nTHE COURT: Overruled. Any further instructions requested?\nWithout citation to any authority, Muldrew claims that the remarks by the prosecutor were improper because they went beyond the evidence and were a manifest appeal to the jury\u2019s emotions. Muldrew also contends that the trial court exacerbated the prejudice by telling the jury in the admonition that the prosecutor\u2019s argument was supported by the evidence.\nThis argument is without merit. First, a mistrial is awarded only when an admonition to the jury is ineffective. Calloway v. State, supra; Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997); Puckett v. State, supra. In this case, Muldrew asked for no relief except for declaration of a mistrial, and it is likely that an admonition would have cured the prejudice. See Puckett v. State, supra. Secondly, the prosecutor\u2019s reference to \u201cbusting a heart out\u201d was taken from proof submitted to the jury. Betty McClure, the informant who purchased crack cocaine from Muldrew on three separate occasions, testified that she cooperated with law enforcement in order to rid her community of its drug problem. She testified that in 1992, her twenty-four-year-old son died from a \u201cbusted heart\u201d as a result of his addiction to crack cocaine.\nFinally, Muldrew\u2019s argument that criminal juries should not be concerned with \u201csending a message\u201d is not supported by our caselaw. In Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996), the trial court determined that the appellant should serve consecutive sentences on two convictions for aggravated robbery after concluding: \u201cThe only thing that I know that it might do is send some sort of message to somebody else out there that might be so inclined to engage in a course of conduct of a criminal nature.\u201d Love v. State, 324 Ark. at 531-32, 922 S.W.2d at 704. On appeal, this court affirmed the trial court and stated:\nGranted, the trial court commented that he hoped to send a message to people who might be inclined to engage in criminal activity. However, Love cites no authority for his argument that such a consideration is improper. Stevens v. State, [319 Ark. 640, 893 S.W.2d 773 (1995)]. Further, Ark. Code Ann. \u00a7 16-90-801(a)(5) (Supp. 1995) provides that a primary purpose of sentencing a person convicted of a crime is to \u201cdeter criminal behavior and foster respect for the law.\u201d\nLove v. State, 324 Ark. at 532, 922 S.W.2d at 704.\nAffirmed.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "David Mark Gunter, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Gil Dudley, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Wilbert MULDREW v. STATE of Arkansas\nCR 97-561\n963 S.W.2d 580\nSupreme Court of Arkansas\nOpinion delivered February 19, 1998\nDavid Mark Gunter, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Gil Dudley, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0519-01", "first_page_order": 543, "last_page_order": 548 }