Flamer v. State

2021 Ark. App. 172

ERSKINE FLAMER, JR. APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-215

ARKANSAS COURT OF APPEALS DIVISIONS I & II

April 21, 2021

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. 02CR-19-189]

HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE

REVERSED AND REMANDED

RAYMOND R. ABRAMSON, Judge

Appellant Erskine Flamer, Jr., was convicted by an Ashley County jury of second-degree murder and tampering with physical evidence. Flamer was sentenced to fifty years in the Arkansas Department of Correction and a $2500 fine for the murder conviction and three years' imprisonment and a $500 fine for tampering with physical evidence. The circuit court ordered the sentences to run concurrently. On appeal, Flamer argues the circuit court erred in denying his motion for mistrial after the State disclosed—during jury deliberations—that two pocketknives were found on the victim following his death at the hospital. We agree and reverse and remand.

The facts at trial established that Flamer and Deunte Stanley were involved in an altercation at a city park in Hamburg, Arkansas, on July 21, 2019. Flamer arrived first with his three-year-old son. Flamer's girlfriend and his son's mother, Laporsha Franklin, was also at the park that day and testified at trial that Stanley approached Flamer and started shoving and threatening him. Testimony indicated that Stanley was the initial aggressor.

During the shoving, Stanley reached into his pocket with his free hand, and witnesses heard Stanley threaten Flamer saying, "You better kiss your son goodbye." After Stanley pushed him several times, Flamer "poked" Stanley. Witnesses, including Franklin's mother, Gelena Mooney, testified that they did not realize Stanley had been stabbed until he lifted his shirt and they saw blood. Stanley then collapsed and later died after being transported to the hospital in Crossett, Arkansas.

Flamer did not testify at trial, but the State played a video of his statement taken by the Hamburg Police Department. In the video, Flamer stated he was afraid of Stanley during the altercation, and he was in fear for his life after he saw Stanley's hand move in his pocket. He also stated that he did not mean to kill him and became distraught when officers informed him that Stanley had died.

The existence of the two pocketknives found on Stanley's person was not included in any of the police reports or witness statements. There was no evidence introduced by any party or witnesses that Stanley was armed. The assumption was that he was unarmed. The defense was unaware of the pocketknives until the State disclosed it during jury deliberations. Defense counsel immediately requested a mistrial.

The jury had been instructed on self-defense, which is a defense only if Flamer "reasonably believed that Deunte Stanley was using or about to use unlawful, deadly, physical force." In arguing his motion for mistrial, Flamer contended that the pocketknives wererelevant to his defense and that at trial, he would have relied on the fact that Stanley had been armed. The circuit court did not grant the mistrial and proceeded with the case, indicating that he wanted "to see what the jury would do."

The jury returned guilty verdicts of murder in the second degree and tampering with physical evidence, and Flamer was sentenced. At the conclusion of the proceedings, defense counsel renewed his motion for a mistrial that was again denied by the circuit court. Flamer's sole argument on appeal is that the circuit court abused its discretion by denying his motion for mistrial.

The general standard for mistrial is well established. We have said in a myriad of cases that the grant of a mistrial is a drastic remedy and rests within the discretion of the circuit court. A mistrial is an extreme remedy appropriate 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. See McClinton v. State, 2015 Ark. 245, at 2-3, 464 S.W.3d 913, 914. The circuit court's decision will not be reversed absent an abuse of discretion or manifest prejudice to the moving party. Id. Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief. Gould v. State, 2016 Ark. App. 124, 484 S.W.3d 678.

Such is the case here. Because the evidence was not disclosed to Flamer until the jury was already deliberating, the error is beyond repair. There is a fundamental difference between the killing of an unarmed person versus an armed person--regardless of the nature of the deadly weapon employed. In the instant case, the entire tenor of the defense wasaffected by the absence of the armed-victim evidence. Accordingly, we hold that the circuit court abused its discretion in denying Flamer's motion for mistrial.

The dissent maintains that the evidence concerning the pocketknives was not relevant and would not have been admissible, and therefore, the outcome of the trial would not have been different. However, the existence of the pocketknives found in the victim's pocket following the incident is paramount to this case. There was testimony from several witnesses that Stanley was the aggressor, he threatened Flamer, and Stanley put his hand in his pocket during the altercation. That the victim was armed bears significantly on every aspect of the case.

But the admissibility of the pocketknives is not for our court to decide because it is not argued on appeal, and we have no clear ruling from the circuit court on the issue. In the colloquy between the parties and the court after the State had disclosed the knives had been found, the parties did not argue admissibility of this evidence; rather, they argued the motion for a mistrial. In denying the motion, the court stated:

So, the Court is uncertain as to whether or not it would have even been admissible, the existence of the two pocketknives, unless the fact they were in his pocket had been communicated to the defendant and he had reason to believe that he was armed with one or two pocketknives.

. . . .

Well, it's an issue for me to determine if something is clearly irrelevant. I'm saying that I doubt that I would have allowed it into evidence. I am subject to change my mind.

There is no formal ruling regarding the admissibility of the pocketknives from the circuit court, and there are no posttrial briefs regarding the evidence's admissibility.

At the stage of the trial when the State made the disclosure to the court--jury deliberations--all the evidence had been introduced. Any ruling on admissibility by the court at that time would have been too late. The evidence ship had sailed. Discussion by the circuit court after the case had been submitted to the jury was purely academic and theoretical; any ruling would have been hypothetical and advisory. The lower court should have the opportunity to hear full and fair argument from both parties on the issue of admissibility before ruling.

In this appeal, our court is solely charged with deciding whether the denial of the motion for mistrial was made in error. The standard is clear--a mistrial is appropriate 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. See McClinton, supra. In light of the record before us, it is evident that the entire defense would have changed had the knives been disclosed in a timely manner. The nondisclosure prevented Flamer from using that knowledge at trial.

The presence of the pocketknives supports Flamer's and his witnesses' testimony that the victim went for his pocket before Flamer stabbed him, which bolsters his self-defense argument. The missing evidence lends credibility not only to Flamer's entire case, but also to his position when confronting prosecution witnesses. Without the evidence, the going-for-his-pocket statements could have been dismissed as gratuitous. The State benefited fromthe absence-of-evidence scenario and took advantage of it by attacking the self-defense argument. Specifically, in closing argument, the prosecutor stated:

You have to determine that Erskine Flamer reasonably believed that Deunte Stanley was using or about to use unlawful, deadly, physical force. He claims he had his hand in his pocket. I guess you're all justified in killing me right now because I'm touching my phone if you believe that.

. . . .

And they have not proven that to you at all. The only evidence that you have that he thought that he was in danger is said something about-he believes he shot somebody else before. No proof of that, no evidence of that-and he even said, I don't know if it's right-and he had his hand in his pocket. So I submit to you there's no time that you can use self-defense as a defense just because somebody has their hand in their pocket. They have to do something more. They have to say to you or indicate to you that they're armed and they intend to kill you. Otherwise, you're unreasonable.

If the existence of the pocketknives had been disclosed, the prosecutor would have been foreclosed from making such an argument. In denying the motion for mistrial, the circuit court did not address the unfair advantage given to the State or, conversely, any disadvantage or prejudice the defense may have experienced from the nondisclosure of the knives. Whether the pocketknives would have been admissible is not up to this court to decide in this appeal, but the manifest effect of the untimely disclosure is.

We conclude that a mistrial was required in this case. The fact that this evidence was not disclosed until jury deliberations is an error so prejudicial that justice could not be served by continuing with the trial. A mistrial was the appropriate remedy here because the fundamental fairness of the trial was manifestly affected when this evidence came to light,and we hold that the circuit court...