Cite as 2013 Ark. App. 183 ARKANSAS COURT OF APPEALS DIVISION I No. CACR12-662 REGINALD NALLS Opinion Delivered March 13, 2013 APPELLANT APPEAL FROM THE ASHLEY V. COUNTY CIRCUIT COURT [NO. CR2011-75-1] STATE OF ARKANSAS HONORABLE SAM POPE, JUDGE AFFIRMED APPELLEE PHILLIP T. WHITEAKER, Judge Appellant Reginald Fitzgerald Nalls appeals his conviction for delivery of cocaine, entered after a jury trial in the Ashley County Circuit Court. We affirm. On May 6, 2011, Nalls was charged with four counts of delivery of cocaine. 1 The first three counts were premised on three separate controlled buys between Nalls and Anthony Tyrone Durkes, a confidential informant. The fourth count was premised on a controlled buy between Nalls and Doug Meredith, another confidential informant. A trial was held, but the jury was unable to reach a verdict on the first three counts, resulting in a mistrial. The jury convicted Nalls of delivery of a controlled substance, count four. The trial court sentenced Nalls to forty years in the Arkansas Department of 1 On April 9, 2012, the information was amended, changing two of the first three counts to delivery of a counterfeit substance. The other two counts remained the same.
Cite as 2013 Ark. App. 183 Correction after the jury was unable to agree on a sentence. Nalls appeals his conviction, arguing that, during closing arguments, the prosecutor impermissibly commented on Nalls’s failure to testify or to produce evidence of his innocence, thereby shifting the burden of proof to him. The prosecutor made the following comments during closing argument: The fact that what he brought back was purported to be cocaine, everybody thought it was cocaine, came back from the crime lab, that’s why he’s charged as a non-controlled substance or counterfeit substance purporting to be cocaine. Did the amount match the amount of the money, the amount of purported cocaine match the amount of money that was used to buy that? Yes. According to Ms. Hughes, Officer Hughes, that amount of money is what you usually get that amount of cocaine for. Does that prove it? No. It’s corroboration. It’s just one more thing that supports what the CI says. And did you see any evidence to the contrary? Let me just interject that in the middle of things. What evidence, what physical evidence, what actual testimony, what actual anything-Defense counsel objected, arguing that the State was trying to imply that the defense had the burden of either proving something or disproving something. The trial court overruled the objection, stating that it was proper to argue that there was no evidence to the contrary. The second remark that Nalls contends was improper came later in the prosecution’s rebuttal. In rebuttal, the prosecuting attorney remarked as follows: Okay. Now, what does that mean? Officer Cruce said to the best of his ability that he searched the CI. Now, what evidence is there to the contrary? What evidence is there to the contrary? He said he believed that he searched him and there wasn’t anything on him. What evidence—What evidence is there to the contrary? Is there any? 2
Cite as 2013 Ark. App. 183 Defense counsel again objected stating that the State’s remarks implied that Nalls had to prove something. The court again overruled the objection. We have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). When a prosecutor is alleged to have made an improper comment on a defendant’s failure to testify, we review the statements in a two-step process. Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008). First, we determine whether the comment itself is an improper comment on the defendant’s failure to testify. Id. Even a veiled reference to the defendant’s failure to testify is improper. Id. The basic rule is that a prosecutor may not draw attention to or comment upon the defendant’s failure to testify. This is to prevent the defendant from testifying against himself in violation of the Fifth Amendment. Id. Second, if we determine that the prosecution’s remark was not proper under this analysis, then we determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id. We find that these statements were not a comment upon, or a veiled reference to, Nalls’s failure to testify, nor did they shift the burden of proof to Nalls. An expression on the part of the prosecuting attorney attributable to the weight to be given evidence can be distinguished from an expression or a gesture indicating to the jury that the defendant has not taken the witness stand. See Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). The defense had attempted to raise doubt in the minds of the jury by attacking the credibility of the confidential informants and the protocol of law enforcement in the controlled buys. The 3
Cite as 2013 Ark. App. 183 trial court concluded that the prosecutor was simply advising the jury of the weight to be given the evidence presented in light of the defense theory. We do not find this to be an abuse of discretion. A prosecutor’s comments on the lack of evidence that are directed toward rebutting a defensive strategy do not necessarily constitute an impermissible reference to the defendant’s failure to testify. See Jefferson v. State, supra. Although the prosecutor’s arguments may have edged toward territory that is best avoided, they did not cross the line into impermissible comment. However, even if we were to find that the prosecutor’s comments were impermissible, we are convinced that any error did not influence the verdict. The jury here was instructed that closing arguments of counsel were not evidence, that the State must prove its case beyond a reasonable doubt, that Nalls was presumed to be innocent, and that he was not required to prove his innocence. The jury heard the testimony of the officers and both informants and watched videos of the transactions. The jury considered the evidence. While they did find Nalls guilty of one count of delivery of a controlled substance during the February 14, 2011 controlled buy with Doug Meredith, they were unable to reach a verdict on the three other counts involving Anthony Durkes. Thus, the record shows that the jury weighed the evidence and considered the credibility of the witnesses in reaching its decision. As such, the prosecutor’s statements were harmless. Affirmed. PITTMAN and GRUBER, JJ., agree. Joseph P. Mazzanti, III, for appellant. Dustin McDaniel, Att’y Gen., by: Pamela A. Rumpz, Ass’t Att’y Gen., for appellee. 4
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