ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

IKE CURTIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-106

September 24, 2003

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. CR-2001-155-5]

HON. JERRY MAZZANTI,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Chicot County jury found Ike Curtis guilty of delivery of cocaine, and the trial court sentenced him to ten years' imprisonment. On appeal to this court, appellant argues that the trial court erred in admitting opinion and character testimony regarding the common practices of street-level drug dealers. He also argues that the trial court erred in not granting a mistrial after the prosecutor commented on the conviction of an alleged accomplice, who did not testify, and failed to introduce evidence of the alleged accomplice's conviction. We affirm.

Although appellant does not challenge the sufficiency of the evidence on appeal, we will present a brief recitation of the facts in this case. On September 7, 2000, officers conducted an undercover drug operation in Eudora by posing as drug addicts seeking to purchase cocaine. The officers' unmarked vehicle was equipped with a surveillance device. The operation resulted in a videotape that showed appellant taking money from two undercover police officers and walking toward a shed. On the videotape, Otis McCall, an accomplice who was charged in the information, is shown coming from the direction of the shed and giving the officers cocaine.

At trial, Officer Michael Todd Daley testified that he had eleven years' experience as a law enforcement officer and that he had worked approximately five hundred undercover narcotics cases. Officer Daley stated that he was familiar with the methods that are sometimes used by people engaged in drug activity to avoid detection.

Defense counsel objected to this testimony, arguing that Officer Daley was not qualified as an expert in mind reading and that what other people do was irrelevant to appellant's case. The trial court allowed the prosecutor to pursue the line of questioning.

In describing one of the methods to avoid detection, Officer Daley stated that the buyer often gets drugs from two people but speaks to only one of them. Officer Daley explained that the first person takes the "order" from the buyer and gets the drugs from a second person and that the first person then hands the drugs to the buyer and gives the money to the second person. At a bench conference, defense counsel objected, arguing that the State was attempting to use the facts in other cases to prove its present case. The prosecutor countered that appellant's defense was that he was only planning to "rip off" the undercover officers and that he (the prosecutor) was attempting to show that the practice used in consummating the sale in the present case was not uncommon in the drug trade. The trial court overruled appellant's objection.

When Officer Daley testified that he had not knowingly dealt with McCall prior to the operation in September 2000, defense counsel objected to any reference to McCall, arguing that McCall was not charged in the case. The prosecutor stated that McCall had indeed been charged and convicted. Defense counsel then asked for a mistrial because there was no evidence of McCall's conviction. The trial court overruled defense counsel's objection because it was alleged in the information that appellant was an accomplice to McCall. Defense counsel then asked that an admonition be given to the jury. The trial court admonished the jury to disregard the prosecutor's statement and then warned the prosecutor not to make any statements about issues other than the present case. The prosecutor argued to the trial court that the State would have to talk about McCall. At a bench conference, the prosecutor stated that he was planning to introduce a certified copy of McCall's conviction but that he did not realize the conviction was a controverted issue. A certified copy of McCall's conviction was not, thereafter, introduced into evidence.

During the playing of the videotape for the jury, Officer Daley explained what was happening. Officer Daley stated that another officer handed the money to appellant and that appellant walked away toward a shed. He then stated that McCall approached from the direction of the shed, handed the drugs to the other officer, and did not ask for money. Later in his testimony, Officer Daley stated that he was aware of other officers making a buy from McCall just prior to the operation in September 2000.

Defense counsel objected on the grounds that it was irrelevant what McCall did on a previous occasion. The trial court allowed the question because it had been alleged in the information that McCall was an accomplice. The prosecutor asked Officer Daley whether a second person was used by McCall in the previous drug transaction, to which Officer Daley answered in the affirmative. Defense counsel again objected and asked for a mistrial because he argued that using an entirely different set of circumstances was irrelevant to the present case. The trial court overruled the objection and effectively denied the motion for a mistrial.

On appeal, appellant argues that the State was allowed to bolster its case by putting into evidence the actions of other drug dealers. Appellant contends that this was improper character evidence in that the State was arguing that because another, unidentified drug dealer in an unrelated case used a scheme to avoid detection, then appellant must have used a similar scheme in this case. Appellant reasons that if his prior criminal conduct is not generally admissible, then logic dictates that the same standards should apply to the prior criminal conduct of other persons being admitted against him.

The testimony appellant challenges on appeal is not character evidence. Arkansas Rule of Evidence 404(b) (2002) provides that "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...." See Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002); see also Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000). Officer Daley testified about common drug-trafficking practices and not about other crimes, wrongs, or acts committed by appellant. In any event, Officer Daley's testimony was independently relevant to refute appellant's claim that he was only stealing from the officers and to aid the jury in understanding the videotape.

To the extent that appellant challenged at trial Officer Daley's qualifications to give opinion testimony when defense counsel stated that Officer Daley was not an expert in mind reading, this argument seems to have been abandoned on appeal. In his brief, appellant references opinion testimony in his points on appeal, but he does not pursue the matter in the body of his argument other than to state what factually happened at trial. Accordingly, we need not address this issue. See Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997).

Next, appellant argues that the trial court's admonishment to the jury may not have been enough to cure any prejudice that arose from the prosecutor's comments about McCall. He maintains that "when the Prosecutor is allowed to paint the defendant with the prior conviction of his accomplice," the same type of prejudice arises as when the defendant's own prior convictions are referred to during the guilt phase.

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. See Howard v. State, 348 Ark. 471, 79 S.W.3d 273, cert. denied, 123 S.Ct. 606 (2002).

We first note that, although appellant made two motions for a mistrial, he challenges the denial of only the first one in this appeal. Appellant asked for an admonition to the jury, and the judge granted his request. Appellant cannot now complain on appeal when he received the relief he sought. See Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000). In any event, we would summarily affirm appellant's point on appeal for failure to cite any authority. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

Affirmed.

Bird, J., concurs.

Griffen, J., concurs.

Sam Bird, Justice, concurring. I fully agree that, for the reasons stated in Judge Gladwin's opinion, we should affirm appellant's conviction. However, I write separately to disavow Judge Griffen's concurring opinion. The defense attorney's use of the terms "honky" and "honkies" brought no objection from the prosecutor and the trial court took no action; therefore there is nothing for this court to review. It is not the role of this court to act as disciplinarian or censor to the courts or the attorneys appearing herein.

Wendell L. Griffen, Judge, concurring. I agree that we should affirm appellant's conviction in this case. However, I write separately to express my disappointment with the conduct of appellant's trial attorney, G.B. Colvin, who used racial epithets during voir dire and in his opening statement, and with the trial judge, who failed to admonish Mr. Colvin for his use of racial epithets.

During voir dire and in his opening statement, respectively, Mr. Colvin used the terms "honky" and "honkies" to refer to the undercover officers in this case, who are apparently Caucasian. Mr. Colvin was not quoting a witness, but was presenting appellant's defense that appellant merely "ripped some honkies off." Such conduct is not only distasteful trial advocacy, but also undermines the integrity of our judicial system by creating the impression that our courts endorse the use of racially offensive language. No trial attorney should use a racial epithet as a trial strategy, and no trial judge should countenance the use of racial epithets as such.