489 S.W.3d 709
Ark. Ct. App.2016Background
- Steven L. Pascuzzi pleaded guilty to second-degree sexual assault; a Garland County jury later sentenced him to five years’ imprisonment.
- Victim K.S. was eleven when Pascuzzi (described as her "uncle-in-law") forced her to touch his penis; Pascuzzi admitted the allegation in an investigator interview.
- At the sentencing hearing, Pascuzzi testified and denied assaulting other children; he said his children were being cared for by his mother-in-law while he was incarcerated.
- During cross-examination at sentencing, the prosecutor asked whether Pascuzzi had been "sexually inappropriate" with his mother-in-law; defense objected as irrelevant and prejudicial and the prosecutor withdrew the question.
- Pascuzzi did not request a mistrial or an admonition to the jury; on appeal he argued the court should have sua sponte intervened under the third Wicks exception to declare a mistrial.
- The Court of Appeals held the question was improper but did not constitute the kind of structural or fundamental error triggering the third Wicks exception; judgment affirmed but the sentencing order was remanded for a clerical correction (inconsistent plea/conviction language).
Issues
| Issue | Pascuzzi's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not declaring a mistrial after the prosecutor asked about inappropriate sexual contact with the mother‑in‑law | The prosecutor’s question was highly prejudicial and violated his right to a fair trial; the court had a duty under Wicks to intervene sua sponte | The question was withdrawn, Pascuzzi got the relief he sought, and he did not request a mistrial or admonition; the error was not of the structural type requiring sua sponte action | The question was improper but did not rise to the level of the third Wicks exception; no mistrial required; conviction affirmed (sentencing order remanded to fix clerical error) |
Key Cases Cited
- Wicks v. State, 270 Ark. 781 (1980) (establishes narrow exceptions to contemporaneous-objection rule, including court's duty to intervene)
- Dillon v. State, 311 Ark. 529 (1993) (reversal where prosecutor’s comments tainted jury; distinguished because defendant there requested mistrial/admonition)
- Cupples v. State, 318 Ark. 28 (1994) (withdrawing improper question can provide the relief sought)
- Calnan v. State, 310 Ark. 744 (1992) (examples of errors requiring reversal for lack of jury-trial waiver)
- Anderson v. State, 353 Ark. 384 (2003) (errors affecting presumption of innocence or burden of proof implicate Wicks exception)
- McKenzie v. State, 362 Ark. 257 (2005) (prior-bad-act questioning not necessarily within Wicks exception)
- Buckley v. State, 349 Ark. 53 (2002) (prior bad-acts comments not automatically a Wicks-exception issue when not objected to)
- David v. State, 295 Ark. 131 (1988) (refusing to consider unobjected-to admission of prior bad acts on appeal)