*1 42 not those providing traffic control devices. Goodnight’s own
exhibits at trial use of illustrated the arrows on the and pavement, narrowed; on signs showing the road the exhibits showed a overhead, “Pine Bluff Lane” sign Left barrels barricades. It is Goodnight’s on duty demonstrate error appeal issue has appellant failed error precise committed this issue. See Baldwin Co. regarding v. Ceco Corp., 519, Therefore, S.W.2d 941 hold we the court was right verdict as to directing Jensen Construc tion Company.
Affirmed. v. STATE of
Henry TIMMONS Arkansas CR 84-207 Court of
Supreme Arkansas delivered Opinion May Jr., Defender; William R. Simpson, Allen, Public Arthur L. Defender; Public Deputy O'Hern, and Thomas J. Public Deputy Defender, by: Defender, Deborah R. Public Sailings, Deputy appellant. *2 Clark, Greene, Gen., Asst. Rayburn
Steve Att’y by: Joyce Gen., Att’y for appellee. Justice. The was convicted of appellant Purtle,
John I. to Stat. Ann. 41-1803 and sentenced (Repl. 1977)] [Ark. § On the years argues he imprisonment. appeal prosecuting attorney engaged arguments during tactics and the prejudicial course of the trial. We with agree argument appellant’s reverse and remand.
The at the attended victim’s house. appellant party According to the victim the returned to her residence appellant after the other guests had left and her. She repeatedly raped further testified that when she ran from house the to escape overtook her and her several more times. One witness called raped the state by the trial was a during serologist forensic with the state crime The laboratory. doctor who examined the victim did not conference, at the trial. At a it was pretrial agreed by the state and the that the appellant serologist witness could not connect chain the about the materials she had trial, examined. the During the state called the witness and the her appellant оbjected to At that testimony. again the state admitted that it could not establish the chain of Over the custody. objection of state “Did appellant the asked: have an occasion you to examine some itеms submitted to from prosecuting [the ?” The court then sustained the A objection. for a request witness] mistrial was denied.
During the the closing argument state’s stated he attorney had put the witness from serologist the crime lab on the stand and hаd appellant objected to her He also testimony. referred to her The court instructed testimony. not to consider the jury statement by state’s about a witness did attorney who not testify.
The to be decided is it question whether to allow the state to call a witness to the stand when it is already known that the witness cannot give valid relevant then to argue that it was the jury who appellant prevented from We jury evidence. hold that under the circum stances of case this it was prejudicial.
We have that a long held should prosecuting attorney not be or tempted appeal prejudices, pervert testimony, which, not,
make statements to the whether truе or have not been The desire proved. for success should never induce him to endeavor to obtain a conviction arguments except those which State, are based Holder upon evidence the case. v. 58 Ark. 473, In S.W. 279 the more recent case of Dean v. we (1981), reversed the conviction because the attorney state’s asked a witness a question which was in reality testimony by the prosecutor. precise addressеd to a who question, psychiatrist had examined the defendant, was: “Okay. telling Let’s—Do recall me in our conversation that the defendant would telephone be very likely do sort of thing again?” In Dean the court sustained the *3 and denied the for a mistrial. We objection request are same In posture now as we were then. with our precedent keeping we are to Our bound reverse. most recent on pronouncement prosecutorial misconduct is found Foster v.
363, 687 S.W.2d 829 In the state called Foster an accused knowing she would invoke her Fifth Amend accomplice ment rights. The case is almost identical. present
We cannot with any that the error degreе certainty fact, was not prejudicial In it is appellant. quite clear that to. this conduct was and could not have been corrected by less than a new anything trial. the case is Accordingly reversed and remandеd a new trial.
Reversed and remanded.
Hickman, J., concurs. J.,
Hays, dissents. Hickman, Justice, Darrell concurring. The prosecuting attorney deliberately offered evidence which was and misleading inadmissible. In my realized later he should opinion judge mistrial, have stopped or but prosecutor granted a he didn’t. The prosecuting attorney to leave the with the attempted impression there was they evidence should be able to consider, but that it was due being excluded to the defendant’s оbjections, which is a highly tactic. First,
Here is what the record shows. it was apparently witness, understood before trial that the serologist, could not examining Second, about her after findings victim. trial, during the of the state’s transcript efforts reads: under- My the lady’s qualifications. to We have stipulated be able to establish to going the State not is that standing examined, that she of the materials on custody any chain of We on her part. object I’m going doсtor, have we? examining don’t have make he does examination. If with her You may proceed it, it to be— I will allow his chain of to the chain. It is obvious my make I can’t Tom is correct. can’t, quit. I’ll whenever he objects cоurt that Court: All sir. right, on—go If want to you at this point.
I’ve objected All right. . ..
(The continuing.). witness submitted some items occasion to examine Q. Did have Wiggins? from Geneva *4 time, Honor. this your at objection I want to enter an of the jury): (out The Court it? make can’t Are to аdmit you going [Prosecutor]: it.
I can’t make
The Court: (Italics supplied.) is sustained.
The objection over a proper of the jury, in front this deliberate effort After items witness about the to ask the was allowed the state objection, examined. deliber- last, the state again in closing argument,
Third and evidence: objectional referred to the ately [Prosecutor]:
The evidence is unrebutted that she went to the Crime Lab for a examination. We put Lisa stand, on the Cooper He’s serologist. dоing his He job. objected to her and we did not hear what that was. He’s job. Honor, Your I think argument. And I want it. object to The Court:
Ms. did not Cooper anything, Mr. Adams. [Prosecutor]:
That’s correct. didn’t she did. I said she was on the stand and she testified as to her job he objected. The Court:
That’s correct. no testimony. There’s [Prosecutor]:
That’s correct.
It’s not proper to refer to it. [Prosecutor]:
He is thе one who said there’s no evidence since— The Court: correct,
That is sir.
[Prosecutor]: All these things that to— The objection is sustained. You cannot refer to any evidence that was not admitted in this trial. I’m not referring to the evidеnce. I’m that she was referring *5 on the stand and he’s it, the one who not me. The Court:
It is sustained. I’m going to have to move for a mistrial on the also nature of reference to evidence is not prejudicial that before the jury.
The Court:
We’ll discuss this after the out. Go ahead and jury goes finish and then we’ll take it Chambers. up In chambers the following occurred after some discussion and a motion for a mistrial was made:
I objected to statements that were made in the second of the closing as prosecution making reference to evidence which, effect, that was not in trial and in actuality was objected to the defense and we received a favorable ruling. Our is position reference to the serology report which was testified and is client my as it leaves the with the inference there was objective evidence available of the intercourse which the State wаs not able to validly get admitted into evidence at the trial.
What did Mr. you say, Adams? I missed of it. part [Prosecutor]:
I know, I don’t think I commented on the don’t— I report. said that simply was his Tommy job when he objected to her Now as to what tеstimony. said exactly I’m not sure.
But what did do was indicate that there was testimony that was objected to.
No, I just indicated she was on the stand and was doing his as job the attorney representing defendant. The court decided an аdmonition would cure the error. In my however, judgment, the error was so deliberate and flagrant it mistrial; could not otherwise, be cured except by rules evidence are meaningless.
I concur in the decision. *6 Hays, Justice, dissenting. so, Without ever saying
Steele is the majority reversing trial cоurt for refusing to declare a mistrial because the state made some response rebuttal to the of the defense closing argument suggesting the state’s only evidence of was the claim uncorroborated of the prosecuting witness. When the referred to the prosecutor serologist who had examined items submitted by to the State Crime complainant Lab but was unable to establish a chain of the defense custody, mistrial, moved for a which the trial court denied. majority’s The that the state called assumption the serolo- after gist to the stand in a having agreed pre-trial conference there chain of was no of the evidence so it could then argue to the that the defense it from jury prevented evidence, is incorrect. There was no palpably conference pre-trial on this issue no indication whatever of an but a agreement, candid acknowledgement by the that he could not prosecutor establish the chain after the defense had made it clear it requisite would on that basis. did object Nor the state discuss the incident in closing until the defense had arguеd alleged victim had not undergone a medical examination. all,
In closing, the defense “But I mention first of argued: no evidence, medical no examination a doctor she saying sex, had had the no indication of trauma to her scars or body, bruises, scratches, at all to substantiate her nothing, nothing claim that she had sex with the man.” “Now, answered: no evidence. The prosecutor objective evidence is unrebutted that she went to the Crime Lab for a rape examination. We Lisa serologist, on the stand. Cooper, doing job. objected He to her testimony [Defense counsel] and we did not hear what that was. He’s his job.”
Defense counsel and later moved for a mistrial on “the prejudicial nature of reference to evidence that is not before the jury.”
I find it to draw firm impossible conclusions from a printed record concerning this thing It is one for the dispute. defense tо out to there is no evidence of a medical jury .victim, examination of the but another quite thing to examination, there was no when in fact there seems to have been. The trial court heard the told exchange, disregard any *7 in a far remarks of and was counsel no in the evidence having basis better invited the comment defense position judge whether the or whether I would leave the state went far in response. too decision undisturbed.
We have cases that reversal of a made it clear in countless trial court’s motion is a drastic ruling step- a mistrial cases and when the appropriate the most extreme only Combs v. prejudice so the trial continue. plain justice cannot Back v. 496, 606 Duncan, (1980); S.W.2d 61 494, Ark. 438 S.W.2d This incident meets hardly that standard. BUICK,
FISHER INC. v. CITY OF FAYETTEVILLE 85-11 Court of Arkansas
Supreme delivered Opinion May