NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

KAREN R. BAKER, JUDGE

DIVISION III

CHARLES JOHNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1406

NOVEMBER 14, 2001

APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT

[NO. CR99-186]

HONORABLE EDWIN A. KEATON CIRCUIT JUDGE

AFFIRMED

A Ouachita County jury convicted appellant of first-degree murder, and the trial court sentenced him to thirty-five years' imprisonment in the Arkansas Department of Correction. Appellant raises seven points for appeal. We find each point without merit and affirm the conviction.

Facts

Appellant, Charles Johnson, had an extramarital affair with the victim, Connie Smith, for several years. On the afternoon of August 31, 1999, appellant stopped by Ms. Smith's home in Camden, Arkansas. Ms. Smith's two children and a niece were home at the time. Appellant went to the bedroom where Ms. Smith was located. A single gunshot was fired. Appellant ran from the room shouting for the children to call the police because their mother had shot herself.

When the police arrived, they found Ms. Smith lying across her bed with the gun in her right hand and her index finger on the trigger. Police Chief Carpenter testified at trial that he and others

observed several details of the scene which suggested that Ms. Smith's death was not the result of a suicide. Appellant was taken to the Camden Police Department where he gave a recorded statement to the effect that Ms. Smith committed suicide. No Miranda warnings were given to appellant prior to this statement.

On March 23, 2000, appellant gave a second recorded statement stating that the first statement was not correct. In this second statement, appellant said he had been drinking throughout the day when he stopped by Ms. Smith's home to pick her up and go shooting. He stated that his gun was in his hand and he was trying to get a kiss from Ms. Smith who was lying on the bed. When he bent over, she jumped up like she was going to bite him. When he stumbled back, he fell against the bed and heard the gun discharge.

Point I: The Trial Court Erred in Denying Appellant's

Motion for Change of Venue

Arkansas Code Annotated Section 16-88-201 (1987 & Supp. 2001) provides for the removal of a criminal case to another county where the minds of the inhabitants of the original county "are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county." A change of venue should be granted where it is clearly shown that a fair trial is not likely to be had in the county. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The decision of the trial court to deny a motion to change venue will be upheld unless it is shown that the court abused its discretion. Noel v. State, 331 Ark. 79, 83, 960 S.W.2d 439, 441 (1998).

Our State constitution, art. 2, § 10, expressly provides that the venue may be changed to any other county of the judicial district in which the indictment is found upon the application of accused "in such manner as now is, or may be, prescribed by law." The court has a right not only to receive counter affidavits and consider them, but may hear the witnesses produced by either party, and shalleither grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence. The trial court is authorized to determine the truth of the matter, and is certainly better qualified to pass on the application for a change of venue than is any one else. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942).

In order for an affiant to qualify as credible under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in portions thereof. Hedden v. State, 179 Ark. 1079, 20 S.W.2d 119, 120 (1929). The statute contemplates that the subscribing witnesses shall have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward the defendant. Speer v. State, 130 Ark. 457, 198 S.W. 113 (1917). Unless the trial court has abused its discretion in overruling a motion for change of venue, the order is conclusive on appeal. Id.

The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and that in order to overcome this presumption the defendant must show clearly that this cannot be done. Indeed, a change of venue in a criminal prosecution must be deemed a wrong to the public unless the necessities of justice to the accused require it, and before a court is justified in sustaining an application therefore, on account of the prejudice of the inhabitants of the county, it must affirmatively appear that there is a such a feeling of a prejudice prevailing in the community as will be reasonably certain to prevent a fair and impartial trial. Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942) (quoting 27 R.C.L. 815).

In this case, no witnesses appeared at trial. The trial court had only affidavits and counter-affidavits to review. None of the affidavits are abstracted. Arguments of appellant and appellee center on the fact that appellant's affidavits were all from city, not county residents, even though appellant claims that the city residents were well acquainted with the sentiments of the countyresidents. Given the swearing match between the affidavits presented, we cannot say the judge abused his discretion by finding that a feeling of prejudice did not prevail in the community to a degree that was reasonably certain to prevent a fair and impartial trial.

Point II: The Trial Court Erred in Denying Appellant's

Motion to Exclude the Testimony of Karen Smith and

Dinah Bethea Because the State Failed to Timely

Disclose them as witnesses.

This case was set for trial from May 31, 2000, through June 2, 2000. The State supplemented its witness list on May 23, 2000, and included the identification of Karen Smith and Dinah Bethea as witnesses along with the substance of their anticipated testimony. Appellant filed a motion in limine to exclude their testimony on May 25 and a hearing on the motion was held on May 26. The prosecutor submitted a brief describing in detail their anticipated testimony. The witnesses were former girlfriends of appellant who testified that appellant threatened to kill them and physically assaulted them when they told him that they intended to terminate their relationships with him. The prosecution anticipated that Karen Smith would testify that appellant frequently pulled a gun out from under his truck seat, pointed it at her, and pulled the trigger, as well as having hit her and threatened her life. Dinah Bethea's anticipated testimony described an incident that occurred when she told appellant that she wanted to break up and he then took her to a wooded area, beat her, and told her that he would kill her and get away with it.

The question in determining whether an alleged reversible discovery violation occurred is whether the appellant was prejudiced by the prosecutor's failure to disclose. Hicks v. State, 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000). The thrust of appellant's argument on appeal is that he did not have sufficient time to determine what the witnesses' testimony would be at trial and to develop rebuttal evidence. However, the State identified the substance of the anticipated testimony. Furthermore, appellant's actions toward these witnesses were certainly within the knowledge of appellant and available to counsel. Appellant did not ask for a continuance to cure any alleged prejudice that he may have suffered; he simply demanded the exclusion of the witnesses. See Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989)(no discovery violation when state provided defendant a witness one day before trial to rebut newly advanced entrapment defense where no continuance was requested). Under these facts, appellant fails to demonstrate how the prosecution's disclosure of witnesses and their anticipated testimony in the week before trial prejudiced his defense.

Point III: The Trial Court Erred in Admitting the Testimony

of Karen Smith and Dinah Bethea that they had a Prior Sexual Relationship with Appellant and that when they Attempted to end their

Relationships they were Threatened or

Physically Assaulted by Appellant.

Arkansas Rule of Evidence 404(b) provides: [Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.]

The test for admitting evidence under Rule 404(b) is whether evidence of the other act has independent relevance. Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000). Evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Id. Although evidence may be relevant under Rule 404(b), it nonetheless may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. See Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rules 403 and 404(b), and those decisions will not be reversed absent an abuse of discretion. Id.

The State's theory at trial was that appellant murdered Ms. Smith after she told him that she wanted to end their relationship. It was thus crucial to the State's case to show appellant's intent or motive to kill Connie Smith. Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Where the purpose of evidence is to disclose a motive for a killing, anything that might have influenced the commission of the act may be shown. Id. Evidence of circumstances that explain the act, show a motive, or illustrate the accused's state of mind may be independently relevant and admissible. Id.

The State offered the testimony of these two witnesses to prove motive. The trial court tailored its ruling to this purpose, permitting the State to introduce only those death threats made to appellant's former girlfriends after they stated to him their intention to end their relationships. The evidence was certainly probative and we find no abuse of discretion in the court's finding that the probative value outweighed the danger of unfair prejudice.

Point IV: The Trial Court Erred in Failing to DeClare a Mistrial

when Karen Smith Testified that Appellant was the Father

of her Youngest Child and that Appellant Threatened her Family.

.

A mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). A trial court has wide discretion in granting or denying a motion for mistrial, and absent an abuse of that discretion, the decision will not be disturbed on appeal. Id. A mistrial will be granted only where any possible prejudice cannot be removed by an admonition to the jury. Trull v. State, 322 Ark. 157, 908 S.W.2d (1995).

In this case, the prosecution solicited testimony from Karen Smith concerning thetermination of her relationship with appellant. She testified that her relationship with appellant began to change during her pregnancy with her youngest child and that when she attempted to end the relationship, appellant responded by threatening her, her child, and her grandmother and family. Appellant moved for a mistrial immediately after the testimony concerning the threats to Smith's family. The trial court denied the motion; however, the court admonished the jury to disregard the witness's testimony about threats against Smith's children and family, and read the precautionary instruction on 404(b) testimony to the jury.

We find no abuse of discretion. The trial court properly admonished the jury concerning the testimony about the threats to Smith's extended family. The admonishment was consistent with the judge's previous ruling limiting testimony to threats made to former girlfriends after their making known their intentions to end their relationships with appellant. Given the admonition, we cannot say that the fundamental fairness of the trial was manifestly affected or that the error was so prejudicial that justice could not be served by continuing the trial.

Point V: The Trial Court Erred when it Failed to Declare

A Mistrial when Jackie Ross Twice Volunteered Testimony

that Appellant Killed Connie Smith.

Neither do we find an abuse of discretion in the court's refusal to grant a mistrial concerning the testimony of Jackie Ross. On direct examination, Ms. Ross testified that the victim intended to end her relationship with appellant and then volunteered that she made the decision "three weeks to maybe a month before he killed her." The trial court sustained appellant's objection and instructed the jury to disregard Ross's last comment. On cross-examination, in response to appellant's question of whether Ross had personal knowledge of what the victim told appellant, she stated, "I can't say I do. I know that he killed her." The trial court again admonished the jury to disregard the remark. The witness was simply stating her opinion that appellant had killed herfriend. A mistrial was not required, and the court's admonitions to the jury were sufficient to cure any possible prejudice.(see Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996) (finding no error in denial of mistrial motion when witness stated his belief that defendant was guilty).)

Point VI: The Trial Court Erred in Denying Appellant's Motion

to Suppress the Statement he Gave to Captain Gary Vaughan

Because the Officer did not Advise him of his Miranda Rights.

Appellant made an oral motion to suppress his first statement to the police on the basis that he was not given his Miranda warnings. After conducting an evidentiary hearing, the trial court denied the motion, reasoning that the appellant was not in custody when he told police that the victim had committed suicide. We agree.

Miranda warnings are not required if the questioning is simply investigatory. Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992). In this case, the police were in the initial stages of the investigation of what appellant told them was a suicide. Appellant went voluntarily to the police station and gave a statement. He was neither arrested nor detained and left on his own without further interaction with the police. The captain of the Camden Police Department testified that when he arrived at the victim's home, paramedics were trying to resuscitate the victim as he attempted to begin interviews of the occupants of the house. He further testified that because of all the people at the house, it was determined that the police station would provide a more controlled environment for the interviews. He asked the victim's daughter, as well as appellant, to accompany him to the station, but did not order them to go.

Miranda warnings are intended to inhibit abuse of the right against self-incrimination by reason of custodial interrogation by law enforcement officers. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995). They are not required simply because the questioning takes place in a police station or because the questioned person is one whom the police suspect. State v. Spencer, 319 Ark.454, 892 S.W.2d 484 (1995).

We agree with the trial court that appellant was not in custody when he told the police that the victim committed suicide, and therefore, no Miranda warnings were required.

Point VII: The Trial Court Erred in Denying Appellant's motion

in Limine to Suppress the Testimony of Marilyn Davis and

Jackie Ross that Connie Smith told them that if Anything

Happened to her thay Should know that she did not kill Herself.

For his final point on appeal, appellant argues that the trial court erred by permitting testimony that the victim told friends shortly before her death that if anything happened to her it was not suicide.

Under Arkansas Rule of Evidence 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Bice v. Hartford Accident & Indem. Co., 300 Ark 122, 777 S.W.2d 213 (1989). The trial court has discretion in determining the relevance of evidence, Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987), and its decision on such a matter will not be reversed absent a manifest abuse of discretion. Wood v. State, 20 Ark. App. 61, 724 S.W.2d 183 (1987). Evidence need only have "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." Walker, 301 Ark. at 221, 783 S.W.2d at 46.

Appellant was in the bedroom with the victim when she died of a gunshot wound to the head. His first explanation of Ms. Smith's death was that she shot herself. Although he later recanted that statement, the victim's statements to friends that she would not kill herself showed her state of mind prior to her death. Appellant asserts that the danger in allowing the statements was that the jury could "misinterpret" this testimony to conclude that the victim had reason to believe that appellantmight try to kill her and make it look like a suicide.

As discussed above, intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Gaines v. State, Supra. The victim told friends in the weeks before her death that if anything happened to her that she did not kill herself. That fact is probative in determining the cause of the victim's death. Given the additional facts that appellant was the only other person in the room with the victim when she died of a gunshot wound to the head, that she was found with the gun in her hand and that immediately after the event appellant told the victim's family and the police that she had shot herself, the testimony was particularly relevant. We find no merit to appellant's contention that the jury could "misinterpret" this testimony.

Therefore, finding no error, we affirm.

Robbins and Roaf, JJ., agree.