ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

CACR03-164

November 5, 2003

TIMOTHY QUARTEZE SIMMONS AN APPEAL FROM THE MISSISSIPPI

APPELLANT COUNTY CIRCUIT COURT

[CR-2001-406(F), CR98-460(F)]

v.

HONORABLE JOHN FOGLEMAN,

STATE OF ARKANSAS JUDGE

APPELLEE

AFFIRMED IN PART; REBRIEFING

ORDERED

Olly Neal, Judge

In case number CR-01-406, a Mississippi County jury found appellant Timothy Simmons guilty of second-degree murder. He was sentenced to serve twenty years in the Arkansas Department of Correction. Concurrently, in case number CR-98-460, the trial court found that appellant had violated the terms and conditions of his probated sentence for a terroristic act and revoked appellant's probated sentence. The trial court sentenced appellant to serve ten years concurrently with the sentence for second-degree murder with an additional ten years to run consecutively to the sentence for second-degree murder. On appeal, appellant does not challenge the sufficiency of the evidence to support his second-degree murder conviction nor the revocation of his probated sentence. Appellant alleges that the trial court abused its discretion in excluding evidence that the victim had cocaine and marijuana on his person and that the trial court erred when it refused to grant his motion for mistrial. It also appears that appellant's counsel is requesting to withdraw as counsel in any further proceedings involving the revocation of appellant's probated sentence. We affirm appellant's second-degree murder conviction and order counsel to rebrief the revocation issue.

During trial, appellant sought to introduce evidence that the sixteen-year-old victim had marijuana and cocaine on his person. The stated purpose of this evidence was to show that the victim was acting "more like an adult in his behavior." Prior to ruling that the evidence was inadmissible, the trial court allowed appellant to proffer the evidence. Appellant now argues that the trial court abused its discretion in failing to admit the evidence. We do not reverse a trial court's ruling on the admissibility of evidence absent a showing that it clearly abused its discretion. Tull v. State, Ark. App. , S.W.3d (May 14, 2003). Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

Following the court's ruling, Dr. Frank Peretti, a forensic pathologist with the Arkansas State Crime Lab, testified that toxicology results revealed that, at the time of his death, the victim had a blood-alcohol level of 0.11. He also testified that cocaine and marijuana were present in the victim's urine. Because evidence of the victim's drug use was later allowed, appellant has failed to establish that he has suffered any prejudice from the trial court's ruling.

Appellant also argues that the trial court erred in denying his motion for mistrial where, during the cross-examination of Anthony Tate, the State repeatedly asked questions that emphasized the fact that appellant was incarcerated with Mr. Tate's brother. Appellant argues that such questioning prejudiced him before the jury.

A mistrial is a drastic remedy and should be declared only 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. Elser v. State, Ark. , S.W.3d. (May 8, 2003). The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Walker v. State, Ark. , S.W.3d (May 1, 2003). Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).

Here, the witness testified, on appellant's behalf, that he had witnessed the shooting. The witness explained that he did not talk to the police following the shooting and that, while his brother was incarcerated, he learned that appellant was being charged with the shooting. The witness stated that he then asked his brother to pass his information along to appellant in case appellant needed him to testify on his behalf. This evidence did not prejudice appellant before the jury; therefore, the denial of his motion for mistrial was proper.

Finally, it appears that counsel is requesting to withdraw from any further proceedings in case number CR-98-460. In the notice of appeal filed on August 5, 2002, the heading refers to case number CR-98-460 and case number CR-01-406. Following the amendment of the judgment to clarify appellant's sentence, a subsequent notice of appeal was filed on March 18, 2003, in which the heading only refers to case number CR-98-460. In his points on appeal, appellant indicates that there are no points on appeal in CR-98-460. However, in the argument section of the brief, counsel discussed all adverse rulings that occurred in CR-98-460 and concluded with the following statement:

Counsel is unclear as to whether he wishes to withdraw in case number CR-98-460. Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court Rule 4-3(j)(1) delineate the proper procedure for the withdrawal of counsel for a defendant in a criminal case. See Brady v. State, 346Ark. 298, 57 S.W.3d 691 (2001). If counsel intended to withdraw, he should have filed a brief and motion to withdraw pursuant to Anders v. California, supra, and Rule 4-3(j)(1). See Buckley v. State, 345 Ark. 570, 48 S.W.3d 534 (2001). Because counsel's intentions are unclear, we direct counsel to either file a motion to withdraw with an accompanying brief, pursuant to Rule 4-3(j)(1), or rebrief the issue regarding the revocation of appellant's probated sentence and argue the merits.

Affirmed in part; rebriefing ordered.

Stroud, C.J., and Roaf, J., agree.