NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION I

JULES LEROY WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-519

March 7, 2001

APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT

[NO. CR97-246]

HONORABLE JOHN DAN KEMP, JR., CIRCUIT JUDGE

AFFIRMED

Appellant, Jules Leroy Williams, appeals from his conviction for possession of a controlled substance, methamphetamine, and his sentence of thirty-six months' imprisonment. First, appellant argues that the trial court erred in restricting the questioning of prospective jury members during voir dire. Second, appellant argues that the trial court erred in denying his motion for mistrial when, during closing arguments, the prosecutor commented on appellant's failure to subpoena witnesses. We affirm.

During voir dire, appellant's counsel told the potential jury members that the court would instruct the jury that the State has the burden of proving each element of the crime beyond a reasonable doubt. Counsel then stated, "Now reasonable doubt I like to use the demonstration tipping the scales. Well, it's not just barely tip the scales but greatly tip the scales." The prosecutor objected, arguing, "The instruction does not say that." Appellant's counsel replied, "I'm giving a demonstration of opening argument." The prosecutor further remarked, "He - he can quote the instruction but you can't do up like this or like that it doesn't say ninety percent to ninety-five percent, eighty percent, seventy-two percent." The court sustained the objection.

On appeal, appellant argues that the trial court erred in restricting his voir dire of the prospective jury

members because it was proper for appellant's counsel to inquire regarding each prospective juror's interpretation and understanding of reasonable doubt. The extent of voir dire examination is within the trial court' s discretion, and the court's decision will not be reversed absent an abuse of discretion. See Hall v. State, 315 Ark. 385, 392, 868 S.W.2d 453, 457 (1993). While it is not clear from the colloquy what information appellant's counsel intended to impart to the prospective jury members, it is within the court's discretion to require a more accurate statement during voir dire of the State's burden of proof. See id. at 391-92, 868 S.W.2d at 456-57(finding no error where, after the State attempted to quantify reasonable doubt, the trial court injected itself into the voir dire by quoting the AMCI definition of reasonable doubt and asking one juror in the presence of the others if she would listen and follow the court's instructions on burden of proof). We find no abuse of discretion.

During the trial, appellant's only witness, Kelly Jones, testified that he owned the car that appellant was driving when the police seized methampetamine from the car. Jones further testified that it was possible that three other persons, Johnny Teague, Jimmy Sutton, and Dewayne Hall, also had access to the car prior to appellant's arrest. During closing arguments, the prosecutor alluded to this testimony, asking, "[W]here are these other people that were driving that car? You can subpoena people into the Court. You can force people to testify. You can force to have them there." Appellant's counsel objected to the prosecutor's remarks, arguing that appellant did not have the burden of proof and therefore did not have to call any witness, and it was improper to insinuate otherwise. The court stated that the jury had been instructed on how to consider argument of counsel. Appellant then moved for a mistrial, arguing that the State had attempted to shift the burden of proof to appellant. The trial court denied the motion.

On appeal, appellant argues that it was error for the trial court to deny appellant's motion for mistrial or not admonish the jury after the State attempted to shift the burden of proof. A trial court has broad discretion in the granting or denying of a motion for mistrial, and it should be granted only when an error cannot be corrected by any curative relief. See Cook v. State, 316 Ark. 384, 386, 872 S.W.2d 72, 73 (1994). Moreover, in the absence of a manifest, gross abuse of discretion by the trial court, this court will not reversethe trial court in matters relating to control of closing arguments. Id. at 386-87, 872 S.W.2d at 73.

As the Arkansas Supreme Court held in Cook, an attempt by the State to shift the burden of proof by arguing that a defendant should have called a witness to corroborate another witness's testimony, may be cured by an instruction regarding the State's burden of proof. Prior to the State's remarks, the jury was instructed on the State's burden of proof. Furthermore, appellant failed to request any additional instruction following the prosecutor's remarks. Failure to give an admonition to the jury is not prejudicial error where the instruction or admonition was not requested below. See Langford v. State, 332 Ark. 54, 66, 962 S.W.2d 358, 364 (1998). Consequently, we find no error and affirm.

Affirmed.

Pittman and Vaught, JJ., agree.