Honey v. State
2017 Ark. App. 646
| Ark. Ct. App. | 2017Background
- Daniel Honey was tried in Logan County and convicted of one count of rape and one count of second-degree sexual assault involving a seven-year-old victim; sentences: 40 years (rape) and 20 years (sexual assault).
- Pretrial, Honey moved for broad discovery including Rule 404(b) evidence; the State responded to an initial discovery motion but did not respond to the separate Rule 17.1 request for 404(b) materials.
- At trial Honey testified; on cross-examination the prosecutor questioned him about an alleged touching of another child (a girl who fell from a bike), which defense counsel said had not been disclosed in discovery and objected.
- Defense moved for a mistrial twice, arguing failure to disclose constituted prejudicial, improper 404(b) evidence; the trial court denied both motions and instructed the jury to disregard any inference about the biking incident.
- On appeal Honey argued the court erred in denying the mistrial. The Court of Appeals declined to reach the merits because of deficiencies in Honey’s record, addendum, and abstract and remanded to settle and supplement the record and ordered rebriefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred denying mistrial for undisclosed improper cross-examination about other alleged misconduct | Honey: Prosecutor asked about undisclosed prior bad acts (Rule 404(b)), nondisclosure prevented preparation and prejudice cannot be cured by instruction; mistrial required | State: Questions were proper cross-examination based on witness contacts; no notes to disclose; any error was harmless given evidence of guilt | Court did not reach the merits — remanded to supplement record and ordered Honey to file a substituted abstract so harmless-error or prejudice can be assessed |
| Whether the appellate record and addendum were sufficient for review | Honey: Abstract contains the relevant cross-examination colloquy (argues sufficient) | State: Appellate court must be able to review totality of evidence to conduct harmless-error review; current abstract and addendum are insufficient | Court held the record/addendum/abstract were deficient; remanded to settle record (include verdict forms) and ordered substituted abstract and addendum and rebriefing |
Key Cases Cited
- Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995) (appellate court may consult the record to affirm)
- McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001) (appellant bears burden to provide a sufficient abstract)