Jewell v. State

Elizabeth W. Danielson, Judge.

On November 25,1988, appellant Lonnie Jewell shot Jerry Smith and James Dickson, killing Smith and wounding Dickson. Appellant contended at trial that he shot the victims in self-defense. He was tried by a jury convicted of manslaughter and attempted first degree murder. He was sentenced to six years in the Arkansas Department of Correction and fined $ 10,000 on the manslaughter conviction and $15,000 on the attempted first degree murder conviction. Appellant appeals from his manslaughter conviction. We find no error and affirm.

The testimony reflects that on November 25, 1988, Smith and Dickson came uninvited to appellant’s home. Several other people who were friends of appellant were also present. There was evidence of longstanding problems between appellant and Smith, including the fact that Smith had some years ago shot and killed appellant’s cousin and had twice pulled a gun on appellant. Appellant testified that when Smith and Dickson began to discuss the people they had killed while in prison, appellant decided that it was time for them to leave. Appellant contended that when he came out of his house with his gun, he got into a struggle with Dickson. Appellant testified that as they were struggling, he saw Smith getting up from a lawn chair and pointing a gun at him. Appellant shot Smith in the head, killing him. Dickson turned and attempted to run away. Appellant fired a shot in his direction and injured him.

Appellant first contends that the trial court erred in refusing to grant a mistrial when the prosecutor referred to an extrajudicial statement made by appellant which the trial court had ruled to be inadmissible. When police officers first arrived to investigate the shooting, appellant stated “I shot the son-of-a-bitch.” The trial court ruled that the statement made by the appellant to the officers when they arrived was inadmissible. During cross-examination of appellant, the prosecutor asked, “You told Paul Jewell that you shot the son-of-a-bitch, and shot his friend that came up with him, did you not?” Appellant moved for a mistrial, which was denied. The jury was admonished to disregard the question. During closing argument, the prosecutor stated: “We didn’t hear what . . . Mr. Lonnie Jewell said, but he said something.” Again, appellant moved for a mistrial, which was denied, and the jury was admonished to disregard the statement. Appellant contends these statements by the prosecution clearly prejudiced him and that the court’s failure to grant a mistrial is reversible error.

A mistrial is to be granted only where any possible prejudice cannot be removed by an admonition to the jury. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). The trial court is granted a wide latitude of discretion in granting and denying a motion for mistrial, and the trial court’s decision will not be reversed absent an abuse of that discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), citing Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976). Since appellant admitted he shot and killed Smith, the only possible objectionable part of the prosecutor’s question is the reference to appellant calling Smith a son-of-a-bitch. There was testimony by many witnesses, including appellant, establishing a strong enmity between appellant and Smith. Considering this testimony, we do not think appellant was prejudiced by an indication that he used profanity in describing the man who had twice pulled a gun on him. Additionally, the jury was admonished to disregard the statements. Any error resulting from the prosecutor’s improper reference to appellant’s statement was harmless error. The trial court did not abuse its discretion in denying the motion for mistrial.

Appellant’s second contention is that the trial court erred in refusing to give appellant’s requested jury instruction that the degree of force used in self-defense is presumed reasonable when a person is in his own home. Instead, the trial court submitted to the jury AMCI 4105. Appellant argues that when Ark. Code Ann. § 5-2-614 and § 5-2-620 are read together, it is clear that the legislature intended that a different standard should apply in determining whether a belief or response is reasonable when a person is in his home.

In Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985), the court found pertinent to this issue the commentary that follows AMCI 4105 and 4106. That comment provides:

The Committee believes that the presumption set forth in Ark.Stat Ann. §41-507.1 [now codified at Ark. Code Ann. § 5-2-620] in favor of a person defending himself in his home has no effect. If evidence is introduced to trigger the presumption, that same evidence supports the existence of the defense. Under Ark.Stat. Ann. § 41-110(1) (a) and (3) [Ark. Code Ann. § 5-1-111] and § 41-115(c) [Ark. Code Ann. §5-1-102] the prosecution has the burden to prove as an element of its case the negation of any defense beyond a reasonable doubt. A presumption running in the defendant’s favor which may be defeated by clear and convincing evidence by the state, but which also supports a defense which ultimately must be overcome by the state by evidence beyond a reasonable doubt, is of no effect.

The court in Clark found that “[i]nasmuch as the jury was instructed pursuant to AMCI 4105 which required the State to overcome appellant’s reliance on self-defense of his person by a standard of beyond a reasonable doubt, we cannot say the trial court erred in refusing to instruct the jury upon Ark. Stat. Ann. § 41-507.1 [Ark. Code Ann. § 5-2-620].” Likewise, we find that the trial court did not err in instructing the jury pursuant to AMCI 4105 and refusing appellant’s proffered instruction.

Appellant’s final contention is that the trial court erred in failing to properly define “reasonable belief.” The trial court instructed the jury that “[reasonably believes or reasonable belief means the belief that an ordinary, prudent man would form under the circumstances in question and not one recklessly or negligently formed,” which is the definition given by AMCI 4105. Appellant argues that this definition would allow the jury to find him guilty even if it believed facts that would require a finding of not guilty, since a finding that appellant acted negligently or recklessly would not support a conviction for first degree or second degree murder or manslaughter.

Appellant concedes that for him to prevail on this point, this court would have to overrule its previous decision in Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982). When faced with an argument similar to appellant’s, the court in Kendrick stated that “ [t] o accept appellant’s instruction and interpretation of § 41-514 [Ark. Code Ann. § 5-2-614] would render meaningless the requirement of reasonableness found in the basic code justification provisions. This is obviously the reason the committee responsible for our criminal jury instructions deemed it unnecessary to draft one based upon § 41-514 [Ark. Code Ann. § 5-2-614].” We decline to overrule our holding in Kendrick.

Affirmed.

Cooper and Mayfield, JJ., dissent.