. This appeal, Timothy Lamont Howard, is from a judgment of conviction for two counts of capital murder and one count of attempted capital murder from Little River County Circuit Court. Howard was sentenced to two death sentences on the two capital murder convictions and a thirty-year sentence plus a $15,000 fine on the attempted capital murder conviction. He appeals on multiple grounds, which include: (1) insufficient evidence to convict Howard of capital murder and attempted capital murder; (2) error by the trial court in allowing the prosecutor to comment on Howard’s right not to testify; (3) error by the trial court in allowing untimely exculpatory information provided by the prosecutor; (4) error by the trial court in refusing Howard the opportunity to present to the jury the manner in which the exculpatory evidence was withheld; (5) error by the trial court in allowing hearsay testimony; (6) error by the trial court in refusing to grant Howard’s motion to suppress; (7) error by the trial court in allowing improper argument by the prosecutor during closing argument; and (8) error by the trial court in admitting handcuffs purchased by the state into evidence. We conclude that all points raised are without merit, and affirm.
Background
On Saturday, December 13, 1997 at 10:30 a.m., the police discovered Brian Day’s body in the back of a U-Haul truck in Ogden, Arkansas. Brian Day had been beaten and had been shot once in the head with a .38 caliber bullet. Once Brian Day’s body was identified, the police went to notify Shannon Day of her husband’s death. At the Day home, the police forced their way into the home and found Shannon’s dead body in a closet in a bedroom. Trevor Day, the Days’ seven-month-old child, was found by the police crying with a cord tied around his neck underneath a pile of cloths in a zipped bag in one of the bedrooms of the Day home.
Appellant Timothy Lamont Howard was arrested on Wednesday, December 17, 1997, for the capital murders of Brian Day and Shannon Day and the attempted capital murder of Trevor Day. Howard had been friends with Brian and Shannon Day for years, and the nature and depth of their friendship was not disputed. Brian Day and Howard sold drugs together, and on the eve of the day the bodies were discovered, Howard expected to receive $4,500.00 from a deal with Brian Day. Additionally, Penny Granger testified at trial that, shortly before the murders, Shannon Day suspected that she was pregnant with Howard’s child. However, the most incriminating evidence against Howard was his inappropriate and unexplainable behavior both before and after the discovery of Brian, Shannon, and Trevor Day. During a period of time before and after the bodies were located, Howard relied on three different girlfriends, their homes, and several vehicles interchangeably to plan and to attempt to conceal his crimes. Consequently, Howard’s behavior is best understood in a chronological order beginning with the Thursday before the crimes.
On Thursday, December 11, 1997, Howard went with Brian to rent a U-Haul truck. Brian Day revealed conflicting stories regarding the rental of the U-Haul truck. He told one person that he was going to be moving furniture, but he also disclosed that he was going to be receiving stolen merchandise. Howard stated that he was going to help the Days move furniture.
At 3:00 a.m. on Friday, December 12, 1997, Vicki Howard, appellant Howard’s ex-wife, left work at Cooper Tire in Texarkana and drove to Ashdown, where she intended to go to Brian and Shannon’s house. Before continuing to the Day home, Vicki stopped at a restaurant, at 4:00 a.m., where she sat and spoke with Howard. Howard acknowledged to Vicki that he was upset with the Days because they would not admit to dealing drugs and they allowed others to believe that Howard was the only person dealing drugs and bringing them to Ashdown. Howard also discouraged Vicki from going on to stay overnight with Brian and Shannon Day because they were in a fight. Howard, then, told Vicki that he would rent a hotel room in Texarkana if she would return there. Vicki Howard did rent a room and stayed the night in Texarkana.
Later that same Friday morning, Howard, driving the U-Haul truck, arrived at the motel in which Vicki Howard rented a room. Howard advised Vicki not to tell anyone about the U-Haul because the information would get her killed. Howard left the U-Haul truck parked at the motel, and Vicki drove Howard in her car to a farm which the Howard family owned in Ogden, Arkansas. Once at the farm, Howard drove to a small shack, illuminated it with the headlights of the car and went inside the shack. While in the shack, Howard bent down, picked something up, and put it in one of his pockets. Afterwards, Vicki dropped Howard off at Kim Jones’s apartment. Kim Jones was, at that time, Howard’s girlfriend, but since the two have been married.
Later that Friday at 5:00 p.m., Howard called Vicki at her motel room in Texarkana. Howard requested Vicki to come pick him up at Kim Jones’s apartment. Vicki picked up Howard and they returned to the motel room. Vicki testified that Howard had a camera bag that he said contained “some stuff to have kinky sex” and that he mentioned handcuffs and a rope. Howard then drove Vicki’s car to Wal-Mart and returned to the motel with a .38 caliber handgun stuck in the front of his pants. Vicki testified that Howard left the motel room at 9:40 p.m. wearing a black sweatshirt, jeans, and she thought a pair of work boots.
At approximately 11:00 p.m. on Friday, December 12, 1997, Howard called Kim Jones’s sister, Jennifer Qualls, with whom he was also involved, and asked Qualls to pick him up at a rest stop on Highway 71 by the Red River Bridge, which is several miles from the Howard family farm. Qualls testified that when she arrived, Howard got out of Kim Jones’s car and was acting “weird.”
Jennifer Qualls drove appellant Howard to her house and the two went to bed. Howard got up at 1:00 a.m. on that Saturday morning stating he had to go get his money. He returned at approximately 3:00 a.m. and woke Qualls, to tell her that Shannon and Trevor Day would be staying with Qualls while he and Brian went to take care of some business. During the night, Jennifer saw Shannon and heard Trevor crying.
When Jennifer next awoke between 6:30 a.m. and 7:00 a.m. on Saturday, December 13, 1997, no one was in the house. Howard arrived at about 7:30 a.m. at Qualls’s home and told her that the Days were hiding out and that he was the only person that knew their whereabouts. Further, Howard was the last person seen with Shannon and Trevor Day. Howard also gave Jennifer $200.00 in cash and told her that he needed a ride back out to the rest stop on Highway 71 to pick up Kim Jones’s car. On the way to the rest stop, Jennifer noticed a woman’s purse and other bags in the back seat of her car. Howard told her that they belonged to Shannon Day. Once at the rest stop, Howard took the purse and the other items from the back seat. Howard also asked Qualls if she thought Robin Jones, one of Qualls’s former co-workers, would let him borrow his truck to help Brian and Shannon move furniture.
Jennifer Qualls then returned to her home by herself where she started to get ready to report to work at 9:00 a.m. Howard arrived at her home approximately twenty minutes after she returned home from dropping him off at Kim Jones’s car and demanded Robin Jones’s truck. Around five minutes after Qualls had reported to work, Howard arrived, asking if she had spoken with Robin Jones about the truck. Qualls called Robin to inquire about the vehicle, and Howard left to obtain the truck from Robin Jones.
Eddie Scroggins, a salesman at Pro-Truck outfitters in Texarkana, testified that Howard came into the store that Saturday morning and paid $140.00 cash for the largest toolbox in stock. Howard told Scroggins that he would have to come back for the toolbox because he was driving a car, and he would have to go get a truck to load the toolbox. Howard did pick up the toolbox a short time later, however, it is not known what vehicle he was driving.
Little River County Sheriff Danny Russell testified that, shortly before 10:00 a.m. on Saturday, December 13, 1997, he received a call that a U-Haul truck was parked in a wooded area in East Ogden. This was only two-and-a-half hours after Howard told Qualls that he was the only person who knew the Days’ whereabouts. The dispatcher reported that there was blood dripping from the back of the U-Haul and the back door was padlocked shut. Sheriff Russell drove to the scene with lights and sirens on, where he discovered Brian Day’s body in the back of the U-Haul truck on a farm owned by the Howard family. Russell called for other police personnel and an ambulance to the scene. The time of death of Brian Day is unknown, but the medical examiner did determine that he had been involved in a struggle and had been shot once in the head with a .38 caliber bullet. There were bloodstains found on a piece of carpet near the U-Haul truck and the position of the leaves on the ground indicated that Brian’s body had been dragged to the U-Haul from the small shack on the farm. Investigators found Howard’s fingerprints on the U-Haul truck. Also, a passerby found a pair of work boots two miles from the Howard family farm at the corner of Highway 71 and East Ogden Road in a cleared area. The boots found were the same size and type that Howard’s ex-wife, Vicki Howard, had bought for him and thought she had seen him in the previous day. There was also a hair found inside the boots that matched Howard’s DNA, plus blood on top of the left boot matched Brian Day’s DNA.
In his statement to the police, Howard contends that he went looking for Brian Day shortly after borrowing Robin Jones’s pickup truck that Saturday morning. When he did not find Brian at his house, he drove toward his family farm in Ogden. Howard stated that police cars passed him on the road toward the farm and that he yielded to a passing ambulance. Howard stated that he knew something was wrong, so he drove Robin Jones’s pickup truck back to Texarkana and called Vicki Howard.
. Vicki Howard testified that Howard called her at 11:00 a.m. Saturday morning. Howard told Vicki to pick him up in Texarkana. When Vicki arrived, Howard was in Robin Jones’s truck and was wearing tennis shoes. Howard handed the truck keys to Vicki and told her to do something with them. He also handed her $120.00 to rent another motel room in Texarkana. After leaving Howard at the motel, Vicki picked up Robin Jones and took him to his truck. Vicki then returned to the motel, picked up Howard, and drove him to Kim Jones’s apartment.
In the meantime, after Brian Day’s body was identified, the police went to the Day home, where there was no answer. The police then forced their way into the home and found Shannon Day in a closet under a mattress, window frames, and picture frames. Shannon’s hands had been handcuffed behind her back with handcuffs that were described at trial by the State as “identical” to the pair that Qualls testified Howard had once purchased from Saks, a Texarkana lingerie store. There was a ligature around her neck, and there were bruises on her body indicating some sort of struggle. The police found Trevor Day inside a zipped bag full of cloths with a cord around his neck, but he was still alive. Howard’s fingerprints were also found on a bottle in the Days’ living room.
Between 12:30 p.m. and 1:00 p.m. on Saturday afternoon, Howard called Jennifer Qualls at work and informed her that the police had found a dead body in a U-Haul. He stated that he was unsure if it was Brian, but he asked Qualls to clean out her car because the police would probably be wanting to talk with her. Qualls also testified that Howard asked her if she was going to turn him in. Later that afternoon, Qualls discovered the tool box purchased by Howard in her front yard, full of cleaning supplies that had been taken from Qualls’s cabinets.
Howard and Kim Jones arrived at Qualls’s house shortly after Qualls arrived home from work, and the three of them agreed to leave town. Qualls asked Howard what had happened to Shannon’s purse and other belongings, and Howard told her that he had gotten rid of it. Jennifer Qualls testified that, before they left town on Saturday, December 13, 1997, Vicki Howard phoned and told Howard that the police wanted to talk to him, but Howard did not speak with the police at that time. Instead, the three left town, drove to Shreveport, Louisiana, and then spent the night in a motel in New Boston, Texas.
On Sunday afternoon, they returned to Ashdown and gave statements to the police. Howard instructed Jennifer Qualls not to say anything about the money. After Qualls gave the police her statement Howard asked whether she had said anything about the toolbox. The three returned to Kim Jones’s apartment and spent the evening there.
On Monday, December 14, 1997, Jennifer Qualls went to work and was to be back at Kim’s home by dark that night. When Qualls did not return, Kim became worried but Howard knowing that Jennifer was staying at the motel that evening told her not to worry. On Tuesday, Howard went there and had sex with Qualls. The next day, Qualls went to the police and spoke with the chief investigator in charge of the Days’ murder investigation and made a statement which led to Howard’s arrest that day, Wednesday, December 17, 1997.
Within a month of Howard’s charge, the defense filed a motion for discovery. In January 1998, the defense was provided a file containing 101 items from the prosecutor. There was also a cover letter that reflected that if any additional information was gathered it would be sent to the defense. In November 1998, the defense learned of the existence of a file at the Ashdown Police Department. Early in the investigation the file had been taken to the prosecutor, but certain items were removed from it and the remainder of the file was returned to the Ashdown Police Department. The defense did not receive this file until February 1999. The file contained witness statements which were given in close proximity to the murders. In all, there were twenty-nine statements previously not provided to the defense. Information supporting the statement that Howard had given the police was in this file. Also, the file contained information concerning supposed drug deals, deals involving Brian Day receiving stolen property, and witnesses who saw Brian arguing with white men about money the week of the murder. Just prior to the April 13, 1999 pretrial motion hearing, one of the police officers found another part of Howard’s file in the trunk of his car. That file was given to the defense in April 1999.
From these files, the defense learned, prior to trial, that the night before Brian Day’s body was found, Day had spoken with several friends about illegal deals he had going. Brian revealed to some that he was going to be receiving a load of stolen merchandise around midnight from a person he had not dealt with before. Brian Day was also trying to collect money from several people so he could pay off someone to whom he was indebted. One person gave Brian $800 and a quarter ounce of methamphetamine that night. Shannon Day had expressed fear for their lives because she thought Brian was getting in too deep.
The defense also discovered that, within the month before the murders, a friend of Brian’s had introduced him to an individual from Oklahoma, who drove a red, late-1980’s model pickup truck and was interested in trading marijuana for methamphetamine. Further, just four days before the murders, Brian Day was seen arguing with two Caucasian men.
The jury trial began on December 6, and concluded on December 9, 1999. At the end of the State’s case, and again after the defense rested, Howard moved for a directed verdict for lack of sufficient evidence to convict Howard of capital murder or attempted capital murder. The trial court denied both motions for directed verdict. Howard was convicted on two counts of capital murder and one count of attempted capital murder, and was sentenced to two death sentences and thirty years in the Arkansas Department of Correction plus a $15,000 fine.
Sufficiency of the Evidence
When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith, supra. Only evidence supporting the verdict will be considered. Smith, supra.
Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Phillips, supra. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Philips, supra. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Phillips, supra. Additionally, the longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).
The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). We have also held that a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Chapman, supra; Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).
In this case, the State presented both direct physical and circumstantial evidence linking Howard to the murders of Brian and Shannon Day and the attempted murder of Trevor Day. The police discovered Brian Day’s body in a U-Haul truck, with Howard’s fingerprints, while it was parked on the Howard family farm in Ogden, Arkansas. Earlier that morning, a pair of work boots were located by a disinterested witness in a cleared area several yards from Highway 71 and about two miles from where Brian Day was discovered. This witness testified that he did not see the boots at 8:30 a.m., but by 8:50 a.m. they were located in the clearing along with footprints leaving the boots going toward a wooded area. The boots were found in a side-by-side position with Brian Day’s blood on one of them and a Negroid hair compatible with Howard’s DNA inside one of the boots. However, there were also two unidentified Caucasian hairs found inside one of the boots.
Howard argued at trial that the location of the boots indicated that someone deliberately placed the boots so they would be found. Howard also argued that it was impossible for the boots to have been thrown, which the State argued, and land in the side-by-side position in which they were found. Howard further charged that Brian Day’s blood, which was located on one of the work boots, was never in contact with the floor mats of the car that Howard had been driving that day. But the boots were the same size and type that Vicki Howard testified Howard may have been wearing the day before. Further, when Vicki saw Howard the next morning, he was wearing tennis shoes and not the boots.
Inside the Day home, where Shannon Day and Trevor Day were discovered, there were fingerprints on a Mountain Dew bottle in the living room that were identified as Howard’s. However, there were unidentified fingerprints found on the window frames and picture frames covering Shannon’s body. Regardless, there was other substantial circumstantial evidence that connected Howard to the murder of Shannon Day and the attempted murder of Trevor Day which a jury could exclude every other reasonable hypothesis than that of the guilt of Howard.
In addition to the direct physical evidence presented at trial, the jury was presented with substantial circumstantial evidence. Although circumstantial, evidence that an accused was seen in proximity to the scene of a crime, as well as evidence that he offered an improbable explanation of suspicious circumstances, can be evidence of guilt. Engram, supra. Furthermore, flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001) (Chapman’s attempted flight at the scene of the search provides additional evidence of guilt).
Vicki Howard testified at trial that she saw Howard with a .38 caliber handgun and driving the U-Haul truck on the day before the bodies were found. Brian Day was shot in the head with a .38 caliber bullet, and his body was found in the back of the U-Haul truck on Howard’s family farm in Ogden, Arkansas.
Further, at 11:00 p.m. on the Friday before the bodies were discovered, Jennifer Qualls testified Howard appeared agitated at a rest stop close to the Howard family farm. Later that same night he awoke from sleep and stated to Qualls that he had to go get his money. Then, on Saturday morning, he was handing out large amounts of cash, for the purchase of the largest toolbox a store had available and for various motel rooms. Furthermore, Howard attempted to explain that he was the only one who knew where the Days were, and that they were hiding out. Moreover, despite driving the U-Haul the day before, Howard was desperate to borrow Robin Jones’s pickup truck to help the Days, move furniture on that Saturday morning. Howard abandoned that pickup truck once he saw the police had discovered Brian Day’s body. Additionally, once he heard about the discovery of the Days, Howard left town. Lastly, he sought to control the information that Jennifer Qualls gave to the police.
Vicki Howard testified that Howard told her that his bag contained objects for kinky sex, including a pair of handcuffs. When the police located the camera bag after the discovery of the bodies, there were no handcuffs in the bag. There was testimony that Howard never used handcuffs with any girlfriend, but Qualls did testify that she saw handcuffs once in Howard’s possession.
The jury heard testimony from witness Penny Granger concerning conversations she had with Shannon Day. Granger stated that she saw a positive result from a pregnancy test taken by Shannon and Shannon feared that Howard might be the father of the child. The credibility of Granger is an issue for the jury and not this court.
Therefore, in addition to the physical evidence linking Howard to the murder of Brian Day and Shannon Day and the attempted murder of Trevor Day, there was circumstantial evidence that Howard was seen in close proximity of the crime scene. Additionally, Howard’s flight following the discovery is a factor that may be considered by the jury in determining guilt by the jury.
We hold that there was sufficient evidence to affirm the denial of the motion for directed verdict.
Prosecutor’s Comments During the Guilt Phase and Penalty Phase
Howard argues to this court that the prosecutor improperly commented on his right not to testify during both the guilt phase of his trial and, again, during the penalty phase. While being questioned by the defense during the guilt phase, defense witness Kim Jones testified that Howard had asked her to call Vicki Howard and tell Vicki to pick him up. The prosecutor objected to this testimony and without asking to approach the bench, the prosecutor argued in front of the jury:
I would object to the Defendant saying . . . What the Defendant is saying. . . He can say what he said, but she can’t. That’s self-serving hearsay.
At that point the defense asked to approach the bench and moved for a mistrial. In response to defense counsel’s motion, the trial court stated at the bench:
... I guess you are going to have to be careful abput what you say in front of the jury . . . and do not make any improper comment on the Defendant’s failure to testify should he fail to testify.
The trial court then denied the defense’s motion for a mistrial. Howard argues the mistrial should have been granted because the comment made by the prosecutor violated Howard’s right not to testify during trial.
The State asserts that the prosecutor’s objection did not constitute an improper comment because there was no direct reference to Howard’s decision not to testify. The prosecutor did not suggest that the jury should draw any inferences in the event Howard chose not to testify. The prosecutor made his objection during the defense case, when, for all the jury knew, it was still possible that Howard would take the stand. Furthermore, the State contends that the objection was not a reference to Howard’s failure to testify, but rather a hearsay objection.
A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Jones, supra. Prejudice is presumed. Adams v. State, 263 Ark. 536, 566 S.W.2d 287 (1978). An abuse of discretion may be manifested by an erroneous interpretation of the law. Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001); Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1993).
In this case, the trial court’s denial of Howard’s motion for a mistrial during the guilt phase was not so prejudicial that justice could not be served by continuing the trial. The decision to deny the mistrial was within the sound discretion of the trial court, and an abuse of this discretion cannot be found. The trial court admonished the prosecutor not to improperly comment on Howard’s failure to testify and did not rule that the prosecutor had made such a comment. Therefore, the trial court’s ruling to deny the mistrial was correct, and no error can be found.
During the penalty phase of Howard’s trial, Howard contends the prosecutor commented on his right not to testify during the State’s closing argument. The prosecutor stated:
Ladies and Gentlemen, the only comment that I guess I would make on the Defendant’s witnesses and its testimony, and I listened very carefully and even discussed it with Mr. Cooper. Did you ever once hear the word of remorse? Did you hear it just once? You’ve been here for four days. . .
The defense objected to this comment as being an improper comment on Howard’s right not to testify. The trial court stated, “Well, I don’t know that it is a comment. It might could be reflected or could be reflected, so let’s just avoid it.” Howard asserts that his convictions were based on minimal circumstantial evidence and the prosecutor’s comments as such cannot be deemed harmless.
When an objection to a statement during closing argument is sustained, an appellant has been given all of the relief requested, and, consequently, there is no basis to raise the issue on appeal unless the appellant requests admonition to the jury or a mistrial. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Furthermore, a comment is improper when it draws attention to the fact, or comments on, the defendant’s failure to testify. Jones, supra.
An allegedly improper comment on the defendant’s failure to testify usually occurs during the prosecutor’s closing argument, when the evidence is closed and the defendant’s opportunity to testify has passed. Adams, supra. Under those circumstances, a comment that draws attention to the defendant’s failure to testify is improper because it creates the risk that the jury will surmise that the defendant’s failure was an admission of guilt. Adams, supra. Consequently, the comment has the effect of making the defendant testify against himself in violation of the Fifth Amendment. Jones, supra. Under the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, a defendant has the privilege of deciding whether to testify.
Here, Howard did not seek further relief by moving for a mistrial or requesting an admonition to the jury. However, even if Howard had moved for a mistrial or an admonition to the jury, the comment did not refer to Howard’s failure to testify. Rather, Howard never expressed remorse to the witnesses that testified, not that he failed to express remorse to the jury.
Therefore, we find no error and affirm the trial court.
Discovery
Prior to trial, defense counsel filed a motion alleging that the trial court should dismiss the charges against Howard because the prosecutor did not provide timely exculpatory information. Specifically, Howard argued to the trial court that, while he received information by May 19, 1999, seven months before the beginning of his trial in December, 1999, the delay hindered his investigation of the case and his effort to show that someone else was responsible for the murders of Brian and Shannon Day and the attempted murder of Trevor Day. The trial court denied Howard’s motion, finding that the defense had received all of the information before the trial date.
Howard filed his first motion for discovery on January 7, 1998, when the murders were less than one month old. On January 27, 1998, the prosecutor sent Howard a file containing 101 items with a cover letter by the prosecutor stating they would provide Howard with any additional information as provided to the prosecutor.
In November 1998, defense counsel went to the Ashdown Police Department to review photographs concerning the investigation. After a long delay, the defense was told about interviews with nine witnesses who were previously unknown to the defense. Howard argues that these nine statements included valuable information to the defense. The statements included information stating that Brian Day was dealing in stolen merchandise; Brian Day was seen arguing with a Caucasian male about money; Brian Day was dealing with nonlocal people; a new Corvette was seen in the Days’ driveway the morning of the murders; and, Brian Day owed someone about $2,000. There was also a part of the Howard file found in the trunk of a police car a couple of weeks before one of the pretrial hearings in the matter. Howard further contends the fingerprint expert, from the crime lab, testified that an anonymous caller requested a particular individual’s prints be compared to those prints found on the frames found on Shannon Day’s body. A match was never made, but this particular name was never heard nor seen by the defense until this testimony was given at trial, and there was no documentation of this in the file. Howard contends this failure to provide that information is also prejudicial.
Howard further asserts that this prejudice was compounded by the trial court’s ruling that the defense could not explain to the jury how the police investigation had been conducted. The defense’s motion to dismiss set forth facts concerning the manner in which the defense received the discovery. At a hearing on this motion, the trial court denied the motion and granted the prosecutor’s request to prevent the defense from telling the jury of the piecemeal fashion they had received the information.
Arkansas Rule of Criminal Procedure 17.1 provides in part:
(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, prompdy upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.
Ark. R. Crim. P. 17.1(d) (2001). The prosecutor must disclose information in sufficient time to permit the defense to make beneficial use of it. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). When error consists of withholding significant evidence which denies the defendant a fair trial, the case will be reversed and remanded. Strobe v. State, 296 Ark. 74 (1988). Furthermore, a defendant cannot rely upon discovery as a total substitute for his own investigation. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 373 (1998). The choice of an appropriate sanction is within the trial court’s discretion. Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993).
Here, the information was turned over to Howard when the State was presented with the information or when the State learned of the information. All information was given to Howard seven months before trial. Furthermore, Howard had every opportunity to conduct his own investigation regarding other suspects and other witnesses. Therefore, because Howard had all of the alleged exculpatory information before his trial began, there was no discovery violation. Accordingly, the trial court did not abuse its discretion by granting the State’s motion in preventing Howard from conveying to the jury the piecemeal fashion in which the defense had received such information, nor in denying Howard’s motion to dismiss. We, therefore, affirm the trial court.
Hearsay
It is well-settled law that hearsay is not acceptable. While there are exceptions to the rule, the testimony in this case does not fit into one of the exceptions. During Jennifer Qualls’s testimony, the defense objected to an answer after the answer had been given. The trial court overruled the objection and the testimony resumed. The following is the questioned testimony:
A. I called my mother and I told her I called a friend of mine and they both — I asked them what should I do and they told me I needed to talk with the police, so that Tuesday I had a hard time at work, you know —
Q. Is that what your mother told you? You need to talk to the police?
A. Her and Etonia, my friend, did.
By Mr. Carder: I’ll object to that.
By Mr. Cooper: She’d already answered Judge. There was no objection.
By the Court: Overruled.
Howard contends that this piece of information that Jennifer Qualls’s mother and friend told her to speak with the police was so important to the State that it came up again on direct and then again during the State’s closing argument. Howard asserts that there is no requirement that an attorney anticipate every word that may be spontaneously uttered by a witness. The State argues that Howard only stated a general objection upon which he cannot now advance his hearsay argument, and, even assuming any hearsay was erroneously admitted, any error was harmless.
Pursuant to Rule 801(c) of the Arkansas Rules of Evidence, “hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted; such testimony is inadmissible evidence unless it fits within one of the exceptions outlined in Rule 803. Ark. R. Evid. 801(c) (2001).
A general objection will not preserve a specific point. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). Thus, in order to preserve a hearsay objection, a defendant must make a timely, specific objection, stating that ground. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992). When a question calls for a hearsay answer, the attorney’s responsibility is to object at the first opportunity. Hill v. State, 285 Ark. 77, 785 S.W.2d 495 (1985).
Here, Howard only stated a general objection upon which he cannot now advance a hearsay argument. But, even assuming Howard made a specific hearsay objection at trial, the trial court did not err in denying the objection because Qualls may testify to hearsay as a basis to explain her actions, such as going to the police. A hearsay statement may be related by a witness to show the basis of action, such as contacting the police. Mills v. State, 321 Ark. 621, 906 S.W.2d 674 (1995). Therefore, we affirm the trial court’s ruling.
Motion to Suppress
Prior to trial, the defense filed a motion with the trial court to prohibit Penny Granger from testifying to a statement that Shannon Day might have been pregnant with Howard’s baby. Howard contends that this testimony should not have been admitted because the allegation had never appeared in any other statement made by Granger. Further, there was no evidence that Shannon Day was, in fact, pregnant. The State asserts that the testimony was correctly admitted because it proved a possible motive.
Howard argues that the prejudicial impact of allowing unsubstantiated testimony that Shannon war. pregnant was immeasurable. And, to add to this prejudice, testimony was allowed that Howard might have been the father. The defense asserts this testimony is both irrelevant and highly prejudicial, and a proper application of Arkansas Rule of Evidence 401 and 403 would have excluded this testimony.
The admission of evidence showing motive is a matter left to the discretion of the trial court which will be reversed only for an abuse of that discretion. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). Where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). Further, the credibility of witnesses is an issue for the jury and not for this court. Chapman, supra; Marta v. State, 336 Ark. 67, 983 S.W.2d 921 (1998). Here, the decision of the trial court was well within its sound discretion, and the decision is therefore affirmed.
Closing Argument
The trial court has a fundamental duty to insure that a defendant’s rights are protected and that the defendant receives his constitutionally guaranteed fair trial. Prejudicial remarks by a prosecutor seeking the death penalty should not be tolerated. In this case, during the State’s closing argument the prosecutor made the following comment:
. . . but probably the most horrible, horrible thing that happened in this case, probably the most horrible thing that happened that night was that she watching her seven-month-old child being strangled in front of her. I submit to you ladies and gentlemen, the last thing, the last thing that Shannon Day saw before she died was her seven-month-old baby hanging from an extension cord, that’s how she left this world. That’s what you are here for today is to determine what the punishment is . . .
Howard argues that there was no evidence that Shannon Day watched her infant being hung from an extension cord. There was not even evidence that the baby was ever hung from an extension cord. These comments were made to inflame the passion of the jury. Howard asserts that since there was no evidence that Shannon Day did in fact watch Trevor Day hanging from an extension cord, it is reasonable to conclude that the thought never occurred to the jury. The statement by the prosecutor was highly prejudicial, and the court, on its own, should have prevented the prosecutor from making the argument. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
The State argues that Howard did not preserve this issue for appeal because he did not object at the trial-court level. Even constitutional issues may not be raised for the first time on appeal. Willett v. State, 322 Ark. 613 91 S.W.2d 937 (1995).
The remark did not amount to an error that required a sua sponte admonition or mistrial without an objection. Furthermore, the parties are given great leeway in closing argument, and reversible error must show an abuse of discretion by the trial court in permitting that leeway. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). And, the jury was instructed that the closing argument was not evidence.
Here, the remark that Shannon Day saw her child hanging from an extension cord before she died is a fair inference from the evidence. Every plausible inference may be argued in closing. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). It is plausible that Shannon Day watched the attempted murder of Trevor because of the antemortem wounds discovered on Shannon’s body. It is not unreasonable to infer Howard would first bind Shannon before causing harm to Trevor, as the State argued. Therefore, we find no error and affirm the trial court.
Relevant Evidence
The trial court allowed the State to introduce a pair of furry handcuffs which the prosecutor had purchased from Saks, the same store where Howard had purchased similar handcuffs. Over the objection of the defense, the prosecutor argued, in front of the jury, that the handcuffs “are identical to the handcuffs on the victim . . . We’ve had testimony that the defendant purchased a pair at Saks, this very same place, for Jennifer Qualls.” Howard’s relevancy objection was overruled. The record is void of any testimony that the handcuffs found on Shannon Day were identical to the handcuffs the prosecutor purchased. No one testified that the handcuffs on Shannon Day belonged to Howard, only that Howard told Vicki Howard that he had them. No one testified whether there was glue residue on the handcuffs that were on the victim, and no one testified that traces of fur had been found anywhere.
Howard argued that the State’s handcuffs should not have been admitted under Arkansas Rule of Evidence 401 (relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence). However, if relevant, it was highly prejudicial and inadmissible pursuant to Ark. R. Evid. 403 (although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence).
The relevancy of evidence under Arkansas Rule of Evidence 401 is a matter of discretion for a trial court, whose determination is entitled to great deference. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). Determinations about the use of demonstrative evidence, like other evidentiary decisions, are also left to the discretion of the trial court and reversed only for an abuse of that discretion. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).
Here, the State admitted that it had purchased the handcuffs and they were not the ones used on the victim, nor were they the handcuffs Qualls testified she had seen in Howard’s possession. The trial court allowed the State-purchased handcuffs into evidence, but this was not an abuse of its discretion. Therefore we affirm the trial court’s order in allowing the handcuffs into evidence, and we further find no error.
Rule 4-3 (h)
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for adverse rulings objected to by Howard but not argued on appeal and no prejudicial error is found.
In sum, in light of the physical and substantial circumstantial evidence presented to the jury, who determined his guilt and recommended his sentence, we cannot say that the trial committed error in this case. Accordingly, we find no reversible error in the trial court’s rulings. We affirm the trial court on all points and Howard’s judgment of conviction.
Affirmed.
Special Justice Mike Kinard joins in this opinion. Brown, Thornton, and Hannah, JJ., dissent. Corbin, J., not participating.