Anthony Albert Jackson was convicted of two counts of aggravated assault, two counts of aggravated battery, and burglary. 1 He appeals, arguing the trial court erred by denying his motion for new trial.
The transcript shows the following: On January 15, 2006, Darryl Wall was spending the night with Nicole Chisholm at her apartmеnt. Wall testified he stayed there two to three times a week, although he did not keep any belongings there, and that they had an on-again, off-again relationship for several years. Wall testified that they had just finished having sex
2
and that he had his eyes shut and was trying to go to sleep when Jackson, with whom Chisholm also had an on-again, off-again relationship spanning approximately a decade, came into the bedroom,
On direct examination, Wall testified that Jackson tried to reach for a bat that Chisholm kept beside the bed but that no one put their hands on the bat that night. On cross-examination he acknowledged that in a previous hearing he had testified that there was no bat, but on further cross-examination he admitted that there was a bat in the room and that he and Jackson struggled over the bat. 3 Wall further testified that after he and Jackson “tussled” for a few more minutes, Jackson ran down the stairs and Chisholm followed him. When she returned upstairs, there were multiple cuts over her entire body.
Chisholm testified next. According to her testimony, she and Jackson had known each other since 1997 and had an on-again, off-again relationshiр, until about two months before the incident here, when they broke up and he moved out of her house. She had known Wall for about five or six of those years, and sometimes when she was not involved with Jackson, she would be involved with Wall. However, even after he left, Jackson continued to have personal belongings at her house and continued to visit there because of their daughter. According to Chisholm, she had changed the locks the day before the incident, and Jackson did not have permission to be in the home that night.
Chisholm testified that she had picked up Wall from his sister’s house that night and brought him back to her house to spend the night. Although Chisholm testified she thought Jackson did not come into the room until after she and Wall finished having sex, she could not be certain of the timing of his arrival. She testified that he tried to pin her to the bed with his legs and then he and Wall started struggling. She noticed that Jаckson had a knife in his hand and that after they continued to “tussle” she saw the knife in Wall’s back. She testified that they then began struggling with the baseball bat that had been beside the bed. She was also “tussling” with them, and at some point she was cut on the hand. Chisholm testified that Jackson then went down the stairs and she followed him to call the police. However, Jackson turned around on the stairs and began cutting her with another knife, inflicting multiple wounds. On his way out, Jackson took her purse. Chisholm also testified that she and Jackson frequently had physical altercations in the past, and that she had previously cut him with a knife during one of those.
On cross-examination, Chisholm testified that Jackson still had clothes in her apartment, but that Wall did not keep any clothes there. Chisholm testified that the bat stayed on her side of the bed and that she did not know what happened to it after that night. Defense counsel questioned Chisholm concerning whether she got rid of the bat and some of her clothes because those items had Jackson’s blood on them.
Other evidence presented at trial will be recounted as necessary to address this appeal.
1. In his first two enumerations of error, Jacksоn argues the trial court erred by refusing to grant his motion for a mistrial after both Wall and Chisolm gave testimony indicating that Jackson had previously been incarcerated. As to this issue, the transcript shows that Jackson made a pre-trial motion to exclude any evidence of his charaсter or prior record. The trial court, noting that Jackson had five prior convictions, granted the motion and instructed the pros ecutor: “Please do not let that come out in evidence, please do not let any of the witnesses testify to the fact that he may have a рrior conviction or that he’s on probation or been on parole. Please.” Before they testified, the prosecutor instructed both Wall and Chisholm not to mention previous arrests, convictions, probations, paroles or incarcerations.
However, during cross-exаmination, Wall was asked if Chisholm was living with Jackson
The next witness to testify was Chisholm. Very early in her testimony, she was asked what Jackson did to try and be a father to their daughter. She responded that he provided for their daughter, and then she added that the only time he was not there was when he was incarcerated. Defense сounsel moved for a mistrial, and the trial court once again instructed the jury to disregard the testimony concerning Jackson’s incarceration. And once again the jury indicated they could disregard the testimony. At the request of the prosecutor, the trial judge also cautioned the witness not to make any further reference to Jackson’s prior incarcerations. Defense counsel then renewed the motion for mistrial, arguing that both witnesses intentionally divulged the information with “hardly any provocation or any questions being asked.” Counsel also argued that at that point, there was no way to “un-ring” the bell. The trial court once again denied the motion, noting that the members of the jury had indicated they could disregard the testimony. The trial court added, however, that if it happened again, a mistrial would “probably” be granted.
A trial court has the discretion to grant a mistrial or to give curative instructions, and this court will only interfere with that discretion when granting a mistrial is “essential to the preservation of the right to fair trial.” Smith v. State,244 Ga. App. 165 , 168 (534 SE2d 903 ) (2000). When determining whether the trial court abused its discretion, we consider the statement itself, other evidence against the accused, and the actions of the trial court and counsel dealing with the impropriety. Martin v. State,240 Ga. App. 901 , 902 (525 SE2d 728 ) (1999).
Hensley v. State,
Relying on
King v. State,
But, as the State points out and Jackson acknowledges, although it has never been expressly overruled, “the ‘strict’ rule of
King
may have eased in the years since.”
5
For example, in
Junior v. State,
And both of our appellate courts have distinguished
King
in cases which did not involve testimony from state actors, such as police officers, “who should know better” and in cases where the witness, even a law enforcement official, has not been instructed to
avoid mention of a defendant’s prior criminal record. Thus, in
Owens v.
State,
It is against this backdrop that we turn to the facts and circumstances of the present case, noting again the relevant circumstances to be employed in analyzing this issue — “including] the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.”
Sabel v. State,
Turning first to the statements themselves, in both instances the testimony, although not entirely unresponsive, was gratuitous and unnecessary to answer the questions posed. Further, we would not characterize this testimony as either “passing” or oblique. Indeed, Wall twice mentioned Jackson’s incarceration in consecutive sentences. And both witnesses testified clearly that Jackson was “incarcerated,” using the same terminology and leaving no doubt of their meaning.
Looking outside the statements themselves, first and foremost is the consideration that both witnesses had been specifically instructed to avoid referring to Jackson’s previous criminal history in any manner. Thus, this case is akin to those cases involving law enforcement officers “who should know better.” As Jackson points out, not only should these witnesses have known better, they did know better, having been specifically instructed not to make any reference to Jackson’s previous incarcerations.
Moreover, although we do not have the cumulative error rule in this context, it is nevertheless hard to ignore that the jury had to be instructed to disregard testimony by both victims using the same terminology; they had to be told to un-ring the bell not once, but twice. Surely a point is reached where curative instructions will be ineffective.
Turning next to a consideration of the evidence, the State argues that a new trial is not mandated because of the “strong evidence” establishing Jackson’s guilt. It is true that both victims identified Jackson as the person who inflicted their injuries. But both of these witnesses at times gave testimony that was vague, ambiguous, conflicting and contradictory, as brought out by defense counsel during cross-examination and
Based on the foregoing, we conclude that Jackson’s right to a fair trial was prejudiced by improper testimony concerning his prior incarceration. Jackson is thus entitled to a new trial on this basis. Compare
Hensley v. State,
2. Jackson’s next enumeration assigns error to the trial court’s refusal to allow him to use Wall’s June 28, 1996 guilty plea to impeach him. It appears that additional evidence may have been developed on this issue after trial, including that the offense was discharged under the First Offender Act, see
Butler v. State,
Judgment reversed.
Notes
The assault and battery charges were merged for sentencing.
Wall acknowledged on cross-examination that Jackson may have witnessed him and Chisholm having sex.
Investigators were apparently not informed about the bat and it was never located.
Chavous v. State,
The Supreme Court did expressly overrule the case of
Boyd v. State,
As to this issue, Jackson’s counsel elicited testimony that Jackson still had personal effects at the apartment, that his daughter and a niece thought he was still living there and that there were no signs of forced entry into the apartment.
As stated previously, Jackson sought to establish that Wall and Chisholm had gotten rid of the bat because it had his blood on it.