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Honey v. State

Court of Appeals of Arkansas, Division II

March 28, 2018

DANIEL LYNN HONEY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 42PCR-15-80] HONORABLE JERRY D. RAMEY, JUDGE

          Hodge Calhoun Giattina, PLLC, by: Robert E. Hodge III, for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, JUDGE

         Appellant 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.

         I. Background

         Honey 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.

         At 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?"

         Honey's 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."

         Defense 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."

         After 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 deliberations.

         The 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 against him.

         II. Standard of Review

         Our 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 ...


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