FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-13-309]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE.
Law Firm, by: Lee D. Short, for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE.
Neal Allen Hall was charged and convicted by a Garland
County jury of second-degree sexual assault and was sentenced
to fifty years in the Arkansas Department of Correction. Hall
appeals his conviction, claiming that the trial court erred
in denying his motion for a mistrial. We agree.
facts of this appeal are straightforward. On April 9, 2013,
Hall was at the Goodwill store in Hot Springs, Arkansas.
E.M., an eight-year-old female, was shopping with her family
at the store. E.M. claimed that Hall approached her, said
that he wanted to "f---" her, and inappropriately
touched her on her bottom. When she screamed and ran to her
mother, Hall fled the store.
the State presented these facts, Hall testified on his own
behalf. Hall admitted approaching and speaking to E.M. He
stated that he was only trying to console her after she had
been admonished by her father for riding a bike in the store.
He stated that he had been a victim of physical and sexual
abuse and that he felt the need to console E.M. after she had
been disciplined. He only wanted to let E.M. know that her
father did not have to talk to her that way. Hall admitted
patting E.M. on the back while speaking with her, but he
denied touching her inappropriately.
his fleeing the store, Hall claimed that he fled the store,
not because he had done anything inappropriate, but because
the other patrons threatened to beat him. He stressed that,
after having initially fled, he returned to talk with the
officers. It is this testimony that raises the point of
controversy on appeal.
response to Hall's testimony concerning his having fled
the store, the prosecutor made the following remarks on
So you admit from [sic] fleeing from the store but you had a
change of heart and decided to come back. So let's talk
about when you fled from your jury trial. It was a condition
of your bond, wasn't it, to have an ankle monitor?
counsel objected on two bases: (1) the State had not given
notice that it intended to introduce this as 404(b) evidence;
and (2) this evidence was significantly more prejudicial than
it was probative. The State responded that it was trying to
introduce evidence of his having fled as evidence of his
consciousness of guilt. The court sustained the objection
without specifying on which basis it was relying. Defense
counsel asked for a mistrial. The court denied the mistrial
and issued a curative instruction to the jury: "All
right, Ladies and Gentlemen, you will disregard that last
question of the Prosecuting Attorney."
argues one issue on appeal: that the trial court erred in
denying his motion for a mistrial. He notes that the trial
court sustained his objection, finding the State's
question improper. Because the case against him hinged on
credibility, Hall contends that the curative instruction
given by the court was insufficient to cure the prejudice
caused by the State's remarks. We agree.
supreme court has set forth the law regarding mistrials. A
mistrial is an extreme and drastic remedy to be resorted to
only when there has been an error so prejudicial that justice
cannot be served by continuing the trial. Russell v.
State, 306 Ark. 436, 815 S.W.2d 929 (1991). A trial
court may grant or deny a motion for mistrial utilizing sound
discretion, and the exercise of that discretion should not be
disturbed on appeal unless an abuse of discretion or manifest
prejudice to the complaining party is shown. See King v.
State, 298 Ark. 476, 769 S.W.2d 407 (1989). Among the
factors considered by this court on appeal in determining
whether a trial court abused its discretion in denying a
mistrial motion are whether the prosecutor deliberately
induced a prejudicial response and whether an admonition to
the jury could have cured any resulting prejudice.
Sampson v. State, 2018 Ark.App. 160, 544 S.W.3d 580.
conclude that the prosecutor's statement during
cross-examination was obviously designed to induce a
prejudicial response. During cross-examination, the
prosecutor asked the question, "It was a condition of
your bond, wasn't it, to have an ankle monitor?"
Before this question was asked, however, the prosecutor made
two statements: (1) "So you admit from [sic] fleeing
from the store but you had a change of heart and decided to
come back"; and (2) "So let's talk about when
you fled from your jury trial." It is apparent from the
record that these prosecutorial statements were not
calculated to elicit testimony from Hall; instead, they were
clear statements of fact by the prosecutor amounting to
testimony under the guise of cross-examination. When the
prosecution utilizes clear statements of fact amounting to
testimony under the guise of cross-examination ...