FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO.
42PCR-15-80] HONORABLE JERRY D. RAMEY, JUDGE
Calhoun Giattina, PLLC, by: Robert E. Hodge III, for
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE
Daniel Honey was convicted by a Logan County jury of one
count of rape and one count of second-degree sexual assault.
On appeal, he argues that the Logan County Circuit Court
erred in denying his motion for mistrial that he made in
response to allegedly improper cross-examination by the
State. We agree and reverse and remand.
was charged with two counts of rape based on allegations that
he inserted his finger into the vagina and anus of
seven-year-old R.T. Prior to trial, Honey filed a motion for
discovery to which the State filed a response and
supplemental response. Honey later filed a separate request
for discovery pursuant to Arkansas Rule of Criminal Procedure
17.1, specifically asking the State to disclose "all
evidence the Prosecution anticipates will be used against
Defendant pertaining to character and to that of other
crimes, wrongful conduct, or acts, including, but not limited
to, evidence allowed under Rule 404(b) of the Arkansas Rules
of Evidence." The State did not respond to this motion.
trial, the State presented its evidence against Honey. Honey
then testified in his own defense. During cross-examination,
the State questioned Honey about his living arrangements.
Honey stated that he had lived with the victim's
mother's cousin for about a month until arrangements were
made for him to move across the street. The prosecuting
attorney then asked, "In fact, they didn't make
arrangements for you to move, you were asked to move, because
of some allegations that you had touched another little girl
on the leg in the apartment parking lot; is that not
true?" Honey replied, "No, that is incorrect."
The State persisted: "Nothing happened in the parking
lot with the young lady that fell on a bike, and some
allegations of you rubbing on her?"
counsel objected, saying he had "no clue what [the
prosecutor] is talking about" and that nothing about a
bike or a young lady had been disclosed during discovery. The
prosecutor responded that it was "just
cross-examination, it's just things that I've picked
up in talking to witnesses." Defense counsel answered
that if the prosecutor had notes of those conversations, they
should have been provided during discovery so that he could
have known what the State was going to use to cross-examine
Honey. The prosecutor replied that there were no notes and
reiterated that these were "just things that I've
picked up in talking with witnesses."
counsel moved for a mistrial, arguing that the statements
about "another little girl on a different charge"
were extremely prejudicial. The prosecutor repeated that
because there were no notes, there was nothing he was
obligated to hand over. The circuit court denied the motion
for mistrial but proposed three options, suggesting that it
could allow both attorneys time to talk things over, give the
jury a curative instruction, or direct the State to move
forward. Defense counsel opted for the curative instruction,
and the circuit court instructed the jury that it was to
"disregard any allegations or inference regarding the
girl on the bike. There is no foundation for that. You are
just to disregard that and we are going to move on."
the State passed the witness, defense counsel asked to
approach and noted to the court that he had specifically
filed a motion for discovery of Rule 404(b) evidence prior to
trial. Counsel contended that the prosecutor's failure to
disclose Honey's alleged wrongful conduct was itself
wrongful conduct that could not be cured with an instruction
from the court. Counsel therefore again asked for a mistrial,
which the circuit court again denied. Honey's testimony
was the last evidence heard by the jury before its
jury went on to convict Honey of one count of rape and one
count of second-degree sexual assault. He was sentenced to
forty years in the Arkansas Department of Correction on the
rape conviction and twenty years on the sexual-assault
conviction. Honey filed a timely notice of appeal and an
amended notice of appeal. On appeal, he argues that the
circuit court erred in denying his motion for mistrial for
two reasons: (1) the prosecutor's improper question was
unduly prejudicial, and (2) the prosecutor improperly failed
to disclose the existence of other Rule 404(b) allegations
Standard of Review
court has held that a 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 the trial. Phillips v. State, 2015
Ark.App. 419, 467 S.W.3d 742. As a result, we leave the
decision whether to grant a new trial to the sound discretion
of the trial court and will not reverse that decision in the
absence of an abuse of discretion or manifest prejudice to
the complaining party. Id. Here, Honey contends that
the trial error was so prejudicial that justice could not ...