Johnson v. State, 2013 Ark. 494

On October 6, 2010, Mark David Johnson crashed his pickup into a Jeep, killing a pregnant passenger (Austin Paccio) and her unborn child, and seriously injuring two others.
Johnson pleaded guilty to two counts of first-degree murder, one count of attempted first-degree murder, and one count of first-degree battery; the plea deferred sentencing to a jury.
At the penalty-phase sentencing hearing the State and defense presented witnesses, accident-reconstruction evidence, and testimony about Johnson’s conduct after the crash.
Heather Johnson (the estranged wife) testified that she was divorcing Johnson because she had discovered he had molested her minor daughter; the defense did not make a contemporaneous objection when that testimony was elicited.
In closing, defense counsel argued the crash was an accident and that Johnson had “owned” it; the prosecutor responded, “What remorse have you heard anybody express?” Johnson objected and moved for a mistrial, claiming the comment improperly referenced his failure to testify.
The jury sentenced Johnson to two consecutive life terms, plus additional terms for attempted murder and battery. The court affirmed after reviewing objections under Arkansas Supreme Court Rule 4-3(i).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of testimony that Johnson molested his stepchild (alleged 404(b) evidence) at sentencing	State: testimony relevant to motive, intent, and sentencing context; admissible in penalty phase	Johnson: evidence was improper 404(b) character evidence and should not have been admitted	Court: Issue not preserved for appeal—no contemporaneous objection; will not reach merit of admissibility
Prosecutor’s closing remark about lack of remorse (alleged comment on defendant’s silence)	State: remark addressed absence of remorse shown to witnesses and rebutted defense mitigation argument; not a comment on silence	Johnson: remark improperly commented on his constitutional right not to testify and warranted mistrial	Court: remark did not refer to defendant’s failure to testify but to lack of remorse shown to witnesses; no mistrial warranted

Hardman v. State, 856 Ark. 7 (contemporaneous objection required to preserve evidentiary error)
Howard v. State, 348 Ark. 471 (prosecutor’s comment about lack of remorse can refer to witnesses, not defendant’s silence)
Jackson v. State, 368 Ark. 610 (mistrial is drastic remedy; trial court has broad discretion over closing arguments)
Newman v. State, 353 Ark. 258 (counsel may argue plausible inferences from testimony in closing)
Griffin v. California, 380 U.S. 609 (prosecutorial comment on defendant’s silence penalizes exercise of Fifth Amendment right)
Mitchell v. United States, 526 U.S. 314 (Fifth Amendment privilege applies in sentencing proceedings)
Estelle v. Smith, 451 U.S. 454 (limits on using compelled statements and interplay with Fifth Amendment at penalty phase)
Jones v. State, 340 Ark. 390 (comments about lack of remorse permissible when supported by evidence of defendant’s conduct)
Edwards v. Roper, 688 F.3d 449 (Eighth Circuit: comment that defendant had not “expressed” remorse is naturally read as referring to penalty-phase evidence)