{ "id": 1365288, "name": "Jamie Darnell LEE v. STATE of Arkansas", "name_abbreviation": "Lee v. State", "decision_date": "2000-03-02", "docket_number": "CR 98-485", "first_page": "504", "last_page": "517", "citations": [ { "type": "official", "cite": "340 Ark. 504" }, { "type": "parallel", "cite": "11 S.W.3d 553" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "331 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604767 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0079-01" ] }, { "cite": "331 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604773 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0041-01" ] }, { "cite": "324 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158449 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0081-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-90-801", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(a)(5)" }, { "page": "532" } ], "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": 3, "year": 1996, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0526-01" ] }, { "cite": "932 S.W.2d 756", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1996, "opinion_index": 0 }, { "cite": "326 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "year": 1996, "opinion_index": 0 }, { "cite": "331 Ark. 519", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604759 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0519-01" ] }, { "cite": "330 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298614 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0381-01" ] }, { "cite": "983 S.W.2d 387", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1998, "opinion_index": 0 }, { "cite": "335 Ark. 395", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862778 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0395-01" ] }, { "cite": "318 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456001 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0019-01" ] }, { "cite": "309 Ark. 162", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906024 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0162-01" ] }, { "cite": "338 Ark. 649", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243414 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0649-01" ] }, { "cite": "325 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369220 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0267-01" ] }, { "cite": "280 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744892 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0551-01" ] }, { "cite": "324 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9159870 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0290-01" ] }, { "cite": "340 Ark. 11", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365240 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0011-01" ] }, { "cite": "303 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882803 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0079-01" ] }, { "cite": "480 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131144 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/480/0039-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "331 Ark. 232", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604770 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "238" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/ark/331/0232-01" ] }, { "cite": "324 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160568 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0404-01" ] }, { "cite": "326 Ark. 787", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12024831 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0787-01" ] }, { "cite": "333 Ark. 673", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703793 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0673-01" ] }, { "cite": "334 Ark. 492", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655468 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0492-01" ] }, { "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": "337 Ark. 310", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240961 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0310-01" ] }, { "cite": "306 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900887 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0329-01" ] } ], "analysis": { "cardinality": 1068, "char_count": 23635, "ocr_confidence": 0.745, "pagerank": { "raw": 3.1368505958560266e-07, "percentile": 0.8616299637546436 }, "sha256": "38b92f14cdce54c77b81fbe15e0405bbdf659c308de4ebfa27fc58085c6e6e77", "simhash": "1:8a2cdd3e472adf80", "word_count": 4039 }, "last_updated": "2023-07-14T17:52:11.293742+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jamie Darnell LEE v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Jamie Darnell Lee appeals his judgment of conviction for capital murder and for four counts of first-degree battery, all stemming from shootings that took place at a Texarkana nightclub. He was sentenced to life imprisonment without the possibility of parole for capital murder and for twenty years on each of the first-degree battery charges, to run consecutively. He raises four issues on appeal: (1) the trial court erred in refusing to grant him a new trial based on the State\u2019s failure to disclose exculpatory impeaching information; (2) the trial court erred in foreclosing the defense from introducing evidence of gang affiliation and from cross-examining witnesses on the same matter; (3) the trial court abused its discretion in dismissing the sole black from the jury rather than declaring a mistrial; and (4) remarks made by the prosecutor in closing argument mandate reversal. We find no reversible error, and we affirm.\nThe events leading up to the criminal charges and convictions all occurred at the Ace of Clubs nightclub in Texarkana in the early morning hours of October 6, 1996. According to witnesses for the State, at about 3:00 a.m. that morning, the rap song \u201cBow Down\u201d was playing in the nightclub for a crowd of patrons who were young men and women. The rap song deals with two rival gangs \u2014 one on the west side and one on the east side. The song depicts the west side gang as having more power. Some of the male patrons at the nightclub were members of rival gangs in Texarkana, Arkansas and Texarkana, Texas. Jamie Lee was a member of a Texarkana, Texas gang.\nDuring the playing of \u201cBow Down,\u201d State witnesses testified that Lee stood on a chair and began acting out the rap song, while making gestures that some considered gang signs. His actions were taken by Texarkana, Arkansas gang members as being a taunt and a challenge, because he identified himself with a west side gang. Fighting broke out, and at some point Lee was handed a gun. According to several State witnesses, the gun was given to him by Demetric Williams, and Lee opened fire. Danyon Green was shot and killed, while Kinthun Arnold, Johnny Hardy, Charvez Williams, and Trolaurice Walker were wounded. Lee then ran out of the nightclub. According to one State witness, on his way out, Lee stopped and \u201cclicked\u201d his gun at the head of Fred Bradley, who was under a table. Lee\u2019s defense, on the other hand, was that he never had a gun in his possession. Several defense witnesses disputed the testimony of the State witnesses and testified that they never saw Lee with a gun, although other people in the nightclub did have guns.\nLee was found guilty of all five charges and sentenced as previously noted. He moved for a new trial, claiming multiple errors by the trial court, and the motion was denied.\nI. Disclosure of Exculpatory Impeaching Information\nFor his first point, Lee contends that the State failed to disclose the criminal histories of Johnny Hardy, Kinthun Arnold, and Fred Bradley, though discovery motions for those histories and for any impeachment information had been filed. The specific information that Lee claims he was not privy to was that Hardy was a twice-convicted felon; that Arnold was arrested for theft and breaking and entering during Lee\u2019s trial and later charged, although the charged acts had occurred in 1994; and that Bradley had been charged with third-degree battery enhanced by gang-related activity into a Class B felony before Lee\u2019s trial, and the charge was pending at the time of the trial. In short, Lee claims he was hampered by this lack of information in impeaching the State witnesses. He further maintains that the trial was largely a swearing match between State and defense witnesses regarding what happened, and, as a consequence, impeachment of State witnesses was critical to his case.\nThe operative rule of procedure for disclosure of a witness\u2019s criminal history is Rule 17.1, which reads in pertinent part:\n(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:\n(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.\nArk. R. Crim. P. 17.1(a)(vi). This court has held that it is reversible error when a prosecutor fails to comply with a defendant\u2019s timely request for disclosure of information, when that failure results in prejudice to that defendant. Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991). The information must be disclosed by the prosecutor in sufficient time to permit the defense to make beneficial use of it. Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999). When the prosecutor fails to provide information, the burden is on the defendant/appellant to show that the omission was sufficient to undermine confidence in the outcome of the trial. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).\nIn the instant case, Lee concedes that the prosecutor provided him with information about the prior convictions of Arnold and Bradley, leaving only a question about the prosecutor\u2019s failure to disclose the prior convictions of Johnny Hardy. At the hearing on the motion for a new trial, the prosecutor admitted that he had no documentary proof that he had disclosed Hardy\u2019s prior convictions, but he said that he remembered discussing the matter with one of Lee\u2019s attorneys. Lee\u2019s attorneys stated that they were not given the information prior to trial.\nHardy, however, testified at Lee\u2019s trial dressed in prison garb and stated on direct examination that he was currendy awaiting transfer to the state penitentiary for a parole violation resulting from a conviction in 1985 on charges of burglary and theft of property. He stated that he was already serving a sentence for breaking and entering and theft. He further testified that he pled guilty to other instances of theft in 1984. On cross-examination, Lee\u2019s attorney asked him about his parole violation several times.\nThis court has emphasized in its decisions that the crucial issue in such matters is whether Lee was prejudiced by the prosecutor\u2019s failure to disclose the information about Hardy\u2019s convictions. See Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998); McNeese v. State, 326 Ark. 787, 935 S.W.2d 246 (1996). Here, it is difficult to see how Lee was prejudiced. Even assuming that the prosecutor did not fully disclose Hardy\u2019s background, the prosecutor did question Hardy about his prior convictions when he was testifying before the jury, and it was obvious from his prison clothes that he was currently incarcerated. Further, Lee\u2019s attorney questioned Hardy about his parole violations on cross-examination. In Nelson v. State, 324 Ark. 404, 921 S.W.2d 593 (1996), we concluded that in light of the fact that the witness admitted in testimony that he had a prior record of six felony convictions, his credibility was impeached, and the appellant could not show prejudice resulting from the asserted discovery violation. The same principle holds true in the case before us.\nThe corollary issue under this point is whether the prosecution was required to disclose any criminal information regarding Bradley, Arnold, and Hardy, even if that information did not solely relate to criminal convictions. Under Ark. R. Crim. P. 17.1(d), the prosecution is required to disclose any information which \u201ctends to negate the guilt\u201d of the defendant. Moreover, in Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998), we discussed the holdings of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985). We noted that in Brady, the Court held that the prosecution\u2019s suppression of evidence favorable to an accused violates the defendant\u2019s due process rights, where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The Court extended this rule to include impeachment evidence, as well as exculpatory evidence, in United States v. Bagley, supra. This court adopted the same reasoning and said:\nIn order for the appellants to prevail on this issue, they must demonstrate a reasonable probability that the result would have been different had they had the information concerning Davis\u2019s prior possession of cocaine. The court in United States v. Bagley, supra, held that \u201creasonable probability\u201d is a probability sufficient to undermine confidence in the outcome. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).\nHarrell, 331 Ark. at 238, 962 S.W.2d at 328.\nIn the case at hand, the State argues that the evidence of the witnesses\u2019 prior criminal activity was not material, and, therefore, Brady and Bagley are not applicable. We disagree because the undisclosed information appears to have been material, because it went to the credibility of the State\u2019s witnesses. We cannot say, however, that there is a reasonable probability that the results of this trial would have been different even were we to exclude the testimony of Arnold, Bradley, and Hardy altogether. There still would have been three witnesses for the State who identified Lee as the shooter. Furthermore, Lee presented no evidence that any charges were dropped against State witnesses as part of an agreement to obtain their testimony. See Haire v. State, 340 Ark. 11,8 S.W.3d 468 (2000). We hold that the failure to fully disclose the criminal histories of the three State witnesses does not constitute reversible error.\nII. Evidence of Gang Affiliation\nFor his second point, Lee urges that evidence of gang or group affiliation was vital to this trial, because the credibility of the witnesses for both sides was a major issue. In this regard, he notes that Officer Ronald Hudson of the Texarkana Police Department testified that he obtained an arrest warrant for Lee based upon the statements of Brian Grady, James Jamison, and Fred Bradley. Lee then states that he attempted to get the police officer to testify about the Department\u2019s gang activities unit to show that Grady, Jamison, and Bradley had gang affiliations. He concedes that this same information had come in during the testimony of Officer James Ewing of the Texarkana Police Department during the State\u2019s case-in-chief, but he argues that because the trial court refused to let Officer Hudson testify of his knowledge of the witnesses\u2019 gang-related activities, it prevented him from developing evidence of bias in the State\u2019s witnesses. This evidence of gang affiliation was relevant, he urges, to show the motive of these witnesses to lie and their state of mind. Because the witnesses denied that they were members of a gang, he contends that he should have been allowed to contradict that testimony. Additionally, he points out that he attempted to question several witnesses about gang graffiti written on a wall after the shootings, but the trial court refused to let him to do this.\nThe trial court has wide discretion on rulings concerning the admissibility of evidence, and this court will not reverse such a ruling absent an abuse of discretion. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996); Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). Evidence is relevant if it has any tendency to make the existence of a fact more or less probable. Ark. R. Evid. 401; see also Weaver v. State, supra. This court has held that evidence of gang membership is relevant to show motive for murder. Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996). In the instant case, the trial court excluded the gang-related evidence in question after finding that it was not relevant. The court based this lack of relevancy on the fact that Lee\u2019s defense was not self-defense against a rival gang but rather that he never had a gun that night.\nWe first examine Officer Hudson\u2019s excluded testimony and the sequence of events. Officer Ewing had testified as part of the State\u2019s case that State witnesses Fred Bradley, Brian Grady, and James Jamison were all members of a gang. On cross-examination by the defense, the three witnesses had denied it. Lee\u2019s defense counsel sought to rebut the denials by Officer Hudson\u2019s testimony. We find no fault in the trial court\u2019s exclusion of Officer Hudson\u2019s testimony. Rule 608(b) of the Rules of Evidence provides that specific instances of the conduct of a witness may not be proved by extrinsic evidence to attack that witness\u2019s credibility. This appears to be precisely what the defense was attempting to do. The defense was trying to attack the credibility of State witnesses concerning gang membership by extrinsic evidence, that is, by Officer Hudson\u2019s testimony. Furthermore, there was abundant evidence in addition to the testimony of Officer Ewing that Bradley, Grady, and Jamison had a gang affiliation, and, thus, Officer Hudson\u2019s testimony would have been cumulative. See Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).\nWe further question the validity of Lee\u2019s argument that he was attempting to show bias on the part of these witnesses by Officer Hudson\u2019s testimony. The whole tenor of Lee\u2019s defense is that he did not do the shootings and never had a gun. Thus, whether gang rivalry precipitated the shootings has a diminished significance, as does Lee\u2019s contention that these three witnesses lied because of gang rivalry when they pinpointed him as the culprit. We conclude that there was no reversible error in the trial court\u2019s disallowance of Officer Hudson\u2019s testimony.\nWith regard to the gang graffiti, it appears that Lee was attempting to show that the graffiti was related to the shooting because it contained the word \u201cTad,\u201d which was close to the nickname of the decedent, Danyon Green. We find no error in the trial court\u2019s ruling on this point. Lee offered no proof on who wrote the graffiti, when it was written, or how it related to his case. The graffiti is also cumulative, because there was abundant evidence otherwise showing that the shootings were motivated by gang relationships. There was no abuse of discretion by the trial court in this regard.\nIII. Juror Paxton\nLee next contends that the trial court erred because it took the word of jail trusty, Sandy Davis, over the word of a juror, Joe Paxton. On the third day of the trial, the trial court excused Paxton, who is black, as a juror because he was discussing the trial with third parties, contrary to the court\u2019s instructions. He was replaced by an alternate juror who was white. Lee is black. Lee also points out that the jail trusty reported that two or three other jurors were talking about the case and that those jurors should have been removed as well. He argues that if Paxton was tainted, the others were too, and the trial court had no choice but to declare a mistrial.\nThe record reflects a number of problems concerning Juror Paxton. Early on in the trial, defense counsel informed the court that Paxton had approached him and told him that he was a famous singer. The trial judge responded that he would watch Paxton and \u201csee how things go.\u201d Then, during the trial, the jail trusty told a deputy sheriff that Paxton had discussed the trial with him, in violation of the court\u2019s admonition that jurors were not to discuss the case. When questioned by the judge, Paxton answered that he may have talked to the trusty but did not discuss the trial with him. The judge then alluded to Paxton\u2019s erratic behavior and decided to excuse Paxton and to seat the remaining alternate in his place.\nWe have held in the past that an appellant must show prejudice, when the trial court removes a juror and seats an alternate in the juror\u2019s place. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). We review such matters under an abuse of discretion standard. Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994). Here, the trial court conducted an investigation of all twelve jurors and determined, contrary to Lee\u2019s assertion, that Paxton was the only one who talked to the jail trusty, though Paxton denied that he discussed the case. One of the other jurors also told the court that Paxton tried to speak to her, but that she refused and left. She did not state that he attempted to talk to her about the case. This juror also said that she saw Paxton talking to someone else, but she did not know who it was. She added that it might have been one of the victims in this case. In view of all of this, the trial court determined that it was in the best interest of both parties that Paxton be excused. Lee\u2019s counsel argued that the trial court was taking the trusty\u2019s word over Paxton\u2019s. The trial court answered that the trusty\u2019s account was corroborated by that of another juror.\nThe issue on this point is whether the trial court abused its discretion in removing the juror, and whether Lee was prejudiced in any regard by the seating of the alternate. Latham v. State, supra. We conclude that the trial court did not abuse its discretion in removing Paxton from the jury. It is true that this matter was decided largely as one of credibility, but this court has consistently held that the trial court is in the best position to judge the credibility of the witnesses and to resolve any conflicts in that testimony. See, e.g., Wright v. State, 335 Ark. 395, 983 S.W.2d 387 (1998); Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). The trial court found that Paxton was the only juror who discussed the case with the jail trusty, and we have no reason to disagree with that conclusion other than the fact that Lee disputes it. Further, the State correctly observes that Lee has failed to show that he was prejudiced in any respect by the seating of the alternate. See Heinze v. State, supra. Because no prejudice has been shown, we affirm the trial court\u2019s decision.\nIV Closing Argument\nFor his final point, Lee claims that the trial court\u2019s refusal to sustain his objections to the prosecutor\u2019s closing argument is reversible error. He argues that this court has held that trial counsel are given leeway in closing argument but emphasizes that the remarks in this case invited the jurors to discard their objectivity and to take matters into their own hands as part of law enforcement to stop gang-related violence. He further argues that to allow the prosecutor to sound a \u201csend-a-message\u201d theme in closing argument is reversible error. Specifically, he requests this court to reverse cases such as Muldrew v. State, 331 Ark. 519, 963 S.W.2d 580 (1998), where we have affirmed a ruling to allow a \u201csend-a-message\u201d argument. The parts of the prosecutor\u2019s argument that Lee objected to follow:\nYou can use your common knowledge, ladies and gentlemen, in evaluating the evidence in this case. I submit to you it\u2019s common knowledge that there is just simply just too much violence going on in this town. And I\u2019m asking you to help us enforce the law and to stop this violence.\nAnd, ladies and gendemen, we\u2019ve got to stop it on both, sides of town. All we can do about it is stop here on this side of town. And on behalf of law enforcement on both sides of town I\u2019m asking you to help us stop it to the extent that we can right now.\nHelp us enforce the law, ladies and gentlemen, since he continually interrupts me I want to repeat that. Help us enforce the law to the extent we can. And the only way, or best way, to do it is convict this defendant of capital murder and four counts of battery in the first degree as charged. And this will hopefully enforce the law by deterring or stopping this guy forever from coming over here and shooting people in the back and at the same time send a message to like minded people that if you want to pursue the life of a criminal you better get away from here.\nWe\u2019ve got to stop people from acting like this guy did in this case. And the only way to do that is to send a message to him and send a message to people that think like him that if they do it and they come over on this side of town and they do it they\u2019re going to get convicted for doing it. And they\u2019re going to be dealt with severely.\nWe decline to reverse our previous cases on this point. The trial court clearly has broad discretion in controlling trial counsel in closing arguments, and we will not disturb a trial court\u2019s ruling regarding an objection during closing argument absent a manifest abuse of discretion. Muldrew v. State, supra; Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). In Muldrew, the prosecutor, among other things, argued in a crack cocaine case: \u201cLet\u2019s send a message to people in this community that we don\u2019t really want these kind of folks around here.\u201d We noted in Muldrew that a mistrial is an extreme remedy and one that should not be used unless there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been obviously affected. We also noted in Muldrew that remarks requiring reversal are rare and require an appeal to the jurors\u2019 passions. The appellant in Muldrew argued to this court that the remarks were improper because they went beyond the evidence and were a manifest appeal to the jury\u2019s emotions. We held that the appellant\u2019s argument was without merit.\nThere are other cases where we have allowed comparable \u201csend-a-message\u201d arguments. In Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996), we held that \u201csend-a-message\u201d themes from the prosecutor during closing argument were not improper:\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\nId. at 532, 922 S.W.2d at 704.\nThe trial court did not err in rejecting the motion to declare a mistrial. Closing arguments are not evidence, and the jury was instructed to that effect. Moreover, this was not a \u201cgolden rule\u201d argument as Lee suggests. A golden rule argument is one where the jury is implored to put themselves in the position of the victim. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). That is not what the prosecutor argued here. There was no abuse of discretion by the trial court in declining to declare a mistrial.\nIn his conclusion, Lee makes a cumulative error argument. However, no such argument was made to the trial court, and no ruling was obtained. Lee admits this. Our caselaw is clear that we will not entertain a cumulative error argument unless first made to the trial court. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998).\nThe record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and no reversible error has been found.\nAffirmed.\nThe graffiti read \u201cTad, pimp some hoes for the pack.\u201d The nickname of the decedent, Danyon Green, was \u201cTat.\u201d", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Mickey Buchanan, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jamie Darnell LEE v. STATE of Arkansas\nCR 98-485\n11 S.W.3d 553\nSupreme Court of Arkansas\nOpinion delivered March 2, 2000\nMickey Buchanan, for appellant.\nMark Pryor, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0504-01", "first_page_order": 542, "last_page_order": 555 }