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                 ARKANSAS COURT OF APPEALS

                                       DIVISION II
                                      No.CR-15-453

                                            Opinion Delivered:   FEBRUARY 24, 2016

CORTEZ LAMONT GOULD          APPEAL FROM THE FAULKNER
                  APPELLANT COUNTY CIRCUIT COURT
                             [NO. CR-12-961]
V.
                             HONORABLE CHARLES E. CLAWSON,
                             JR., JUDGE
STATE OF ARKANSAS
                    APPELLEE AFFIRMED


                            KENNETH S. HIXSON, Judge

       Appellant Cortez Gould appeals his convictions for aggravated robbery and theft of

property, which sentences were enhanced due to his use of a firearm during the commission

of the crimes. Appellant was sentenced to forty years in prison. For his sole point on appeal,

appellant contends that the trial court erred in denying his motion for a mistrial due to

alleged juror misconduct. We affirm.

       The standard of review is well settled. A mistrial is an extreme and drastic remedy

that will be resorted to only when there has been an error so prejudicial that justice cannot

be served by continuing with the trial or when the fundamental fairness of the trial has been

manifestly affected. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). The trial court

has broad discretion in granting or denying a motion for mistrial, and on appeal, we will

not overturn the circuit court’s decision absent an abuse of that discretion. Id. Declaring a

mistrial is proper only when the error is beyond repair and cannot be corrected by any
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curative relief. McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913. The presiding trial

judge is in a better position than anyone else to evaluate the impact of any alleged errors.

Id. Thus, this discretion will not be disturbed except where there is an abuse of discretion

or manifest prejudice to the movant. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

       Following allegations of juror misconduct, the moving party bears the burden of

proving both juror misconduct and a reasonable probability of resulting prejudice. Butler v.

State, 349 Ark. 252, 82 S.W.3d 152 (2002). Our court will not presume prejudice in such

situations. Id. Jurors are presumed unbiased and qualified to serve, and the burden is on

the appellant to show otherwise. Id. Whether prejudice occurred is also a matter for the

sound discretion of the trial court. Id.

       In keeping with these legal principles, the following is an analysis of the events at

trial. Appellant was accused of committing armed robbery at a Cricket cellular store in

Conway, Arkansas, on September 7, 2012. A jury was seated, with one alternate juror

available. The jurors were instructed on the rules to follow while serving as a juror, and

among the admonitions was the following: “First, do not talk among yourselves about this

case or about anyone involved with it until the end of the case when you go to the jury

room to decide on your verdict.”

       During trial, the owner of the Cricket store testified, explaining that she provided a

general description of the perpetrator to the police, telling them that he was an African

American male, estimated to be 5’6” tall, and she said he was clean shaven. The police

presented her with a photographic lineup five days after the crime took place, on September

12, wherein she identified appellant as the person who robbed the store. During a Conway


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police detective’s testimony, the detective said that two pictures of appellant—State’s

Exhibits 52 and 43—were taken on different days for purposes of the photographic lineup,

but it appeared that appellant was coincidentally wearing the same shirt in both pictures.

The photographs were passed to the jury.

       At the conclusion of the detective’s testimony, defense counsel brought two jurors

to the trial court’s attention: Deborah Creswell and Vicky Campbell. Appellant had

reported to his attorney that he heard the two women discussing the two photos of appellant

as they were published to the jury. Appellant said that one of the women, later determined

to be Vicky Campbell, commented that the shirts in the photos were not the same, to which

the other woman disagreed. The prosecutor admitted that he heard the two women speak

to each other, but he only heard one juror respond “no” or “not.” This drew a motion for

mistrial, given that this was deemed by appellant as improper inter-juror communication.

Defense counsel argued that there was only one alternate juror available, and defense counsel

did not know how to remedy the fact that there was improper conversation between jurors

without removal of both jurors.

       The prosecutor suggested that the trial judge question the two jurors, and if there

was improper communication, to issue a curative instruction to them. The prosecutor

maintained, though, that there was no resulting prejudice from the alleged comments. After

taking a brief recess, the trial judge denied the request for the extreme remedy of mistrial.

       In order to provide a complete record, and in renewal of the mistrial motion, defense

counsel asked that the trial judge conduct an inquiry of these jurors to see if they were

qualified as fair and impartial jurors to continue with jury duty. Defense counsel argued


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that it was unfair to continue when two jurors were talking about a piece of evidence. The

trial judge agreed to conduct an in camera inquiry.

       Vicky Campbell stated to the trial judge that Deborah Creswell mentioned that the

shirt collar in one picture did not look the same as the other, but she (Campbell) disagreed

with Creswell. Campbell left the judge’s chambers. Deborah Creswell was then called into

chambers. Creswell said that Campbell mentioned that she thought the shirts were different

in the two pictures, to which she (Creswell) said that she agreed the shirts were not the

same, but she did not mean to respond aloud. Creswell apologized.

       The trial judge found that Campbell was the one who made the initial comment,

which was in line with what appellant had reported. The trial judge agreed with defense

counsel that fairness and the appearance of fairness were paramount, but noted that the

substantive issue was whether there had been resulting prejudice requiring a mistrial. The

trial judge decided that “if” there had been any violation of the court’s admonitions, it was

Campbell. The trial judge removed Campbell from the jury, seating the alternate juror, and

mistrial was denied. The State had rested its case, the defense did not present any evidence,

and the jury was dismissed for lunch. Before releasing the jurors, the trial judge again

reminded the jurors of the admonition not to discuss anything about this case or anyone

involved with it until the case was submitted for jury deliberation.

       Appellant argues that Creswell’s responsive comment to Campbell in the jury box,

made in violation of the jury instruction not to do that, constituted denial of a fair trial and

resulted in prejudice, requiring a mistrial.       We disagree that appellant demonstrated

prejudice from Creswell looking at properly admitted evidence and briefly stating


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disagreement with a witness on whether the shirts in the two photographs were the same.

Any juror misconduct by Creswell, if there were any, appears to have had no discernible

effect on Creswell’s ability to decide appellant’s guilt or innocence in a fair and impartial

manner. Creswell expressed remorse for any errant behavior.             The trial judge again

admonished the jury not to discuss anything about this case until deliberations. A juror is

presumed unbiased and qualified to serve, and whether prejudice resulted from alleged juror

misconduct is a matter of the trial court’s sound discretion. Butler v. State, supra; Shamlin v.

State, 23 Ark. App. 39, 743 S.W.2d 1 (1988) (affirming the removal of a juror who made

an improper comment to two other jurors during trial about whether Shamlin was guilty,

replacing that juror with the only alternate, and allowing the two other jurors to remain).

If a juror is shown to have prejudged a defendant to be guilty prior to hearing all the

evidence and being instructed on the law, then this demonstrates that the defendant was

deprived a fair and impartial jury, entitling the defendant to a new trial. See Conway v. State,

2012 Ark. 420. Such is not the case in the appeal before us today. Because appellant has

failed to demonstrate that there was a reasonable probability of resulting prejudice here in

having Creswell remain on the jury, we affirm the trial court’s denial of mistrial as not

manifesting an abuse of discretion.

       Affirmed.

       KINARD and WHITEAKER, JJ., agree.

       Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Brooke Jackson, Ass’t Att’y Gen., for appellee.




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