FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-1520]
HONORABLE BRADLEY LEWIS KARREN, JUDGE
Jeffrey Weber, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., and Bryan Foster, Law Student
Admitted to Practice Pursuant to Rule XV of the Rules
Governing Admission to the Bar of the Supreme Court under the
Supervision of Darnisa Evans Johnson, Deputy Att'y Gen.,
RAYMOND R. ABRAMSON, Judge
Moe appeals his Benton County Circuit Court convictions of
third-degree domestic battery and aggravated assault on a
family or household member. The sole issue on appeal is
whether the circuit court abused its discretion by denying
Moe's motion for a mistrial. We affirm.
October 28, 2015, the State charged Moe with third-degree
domestic battery and aggravated assault of his girlfriend,
Christina Burt. The State also charged Moe as a habitual
offender. Prior to trial, on May 9, 2016, Moe moved to appear
at trial in civilian clothing and without restraints. On May
13, 2016, the circuit court granted Moe's request.
trial on May 20, 2016, Corporal Brent Farrer testified that
he responded to Moe and Burt's residence on September 9,
2015. When Farrer arrived, Burt was crying and trembling and
reported that Moe had headbutted and choked her and then fled
the household. Farrer explained that during his conversation
with Burt, Moe called Burt's cell phone and that Farrer
spoke with Moe over the phone. Farrer testified that he asked
Moe to return to the house. The prosecutor then asked Farrer,
"And apparently, [Moe] was not agreeable to come back to
the house like you asked him?" Farrer responded,
"That is correct. He said he wanted to talk to his
parole officer first."
attorney immediately moved for a mistrial based on
Farrer's statement concerning Moe's parole officer.
His attorney acknowledged that the State did not elicit the
statement and that Farrer inadvertently made the statement,
but he maintained that the statement was highly prejudicial
to his client. He did not object to admonishment if the court
denied his mistrial motion. The court denied the motion and
instructed the jury to disregard Farrer's statement
concerning Moe's parole officer.
testified that on September 9, 2015, Moe became upset with
her when she did not clean their house or cook dinner, and
Moe headbutted and choked her. She explained that she ran
across the street and called 911, and after she called the
police, Moe fled the scene in his car.
jury convicted Moe of both charges. Moe was sentenced to
twelve years' imprisonment for aggravated assault and one
year in the Benton County jail and was fined $1, 000 for
third-degree domestic battery. Moe timely appealed his
convictions to this court.
mistrial is an extreme and drastic remedy that will be
resorted to only when there has been an error so prejudicial
that justice cannot be served by continuing with the trial or
when the fundamental fairness of the trial has been
manifestly affected. Moore v. State, 355 Ark. 657,
144 S.W.3d 260 (2004). Declaring a mistrial is proper only
where the error is beyond repair and cannot be corrected by
any curative relief. McClinton v. State, 2015 Ark.
425, 464 S.W.3d 913 (citing Brown v. State, 347 Ark.
308, 65 S.W.3d 394 (2001)). The judge presiding at trial is
in a better position than anyone else to evaluate the impact
of any alleged errors. Id. Therefore, the circuit
court has wide discretion in granting or denying a motion for
mistrial, and the decision of the circuit court will not be
reversed except for abuse of that discretion or manifest
prejudice to the complaining party. Id. (citing
Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993)).
Our supreme court has stated that among the factors to be
considered in determining whether a circuit court abused its
discretion in denying a motion for mistrial are whether the
prejudicial response was deliberately induced and whether an
admonition to the jury could have cured any resulting
prejudice. McClinton, 2015 Ark. 425, 464 S.W.3d 913
(citing Jones v. State, 349 Ark. 331, 78 S.W.3d 104
case, Moe argues that the circuit court abused its discretion
in denying his motion for a mistrial. He acknowledges that
Farrer inadvertently made the statement; however, he claims
that the comment was so prejudicial that an admonishment to
the jury was insufficient to cure the error. He points to
Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002),
wherein our supreme court stated that when a defendant's
prior incarceration status is not concealed from the jury,
his right to a fair trial is in serious jeopardy. Moe
acknowledges that the factual circumstances here are similar
to those in Jones, 349 Ark. 331, 78 S.W.3d 104.
However, he asserts that Jones conflicts with
Jones, the prosecutor asked an officer what happened
after the officer made contact with the defendant, and the
officer responded that he discovered the defendant was on
parole. 349 Ark. 331, 78 S.W.3d 104. Jones's attorney
moved for a mistrial because the officer had disclosed that
the defendant was a parolee. Id. The circuit court
denied the motion, and Jones declined to have the jury
instructed to disregard the statement out of concern that it
would only draw more attention to the comment. Id.
Our supreme court affirmed, reasoning that nothing about the
prosecutor's question indicated that he was attempting to
elicit Jones's criminal history. Id. The
prosecutor had merely asked what happened after the officer
contacted Jones, and a comment about the defendant's
parole status was not the answer that the question was
intended to evoke. Id.
case, we hold that the circuit court did not abuse its
discretion by denying Moe's motion for a mistrial. As Moe
concedes, the circumstances here are similar to those in
Jones. Nothing about the prosecutor's statement
indicated that he was attempting to elicit the ...