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Hall v. State

Court of Appeals of Arkansas, Division II

October 3, 2018

NEAL ALLEN HALL APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-13-309] HONORABLE MARCIA R. HEARNSBERGER, JUDGE.

          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, JUDGE.

         Appellant Neal Allen Hall[1] 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.

         The 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.

         After 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.

         Concerning 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.

         In response to Hall's testimony concerning his having fled the store, the prosecutor made the following remarks on cross-examination:

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?

         Defense 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."

         Hall argues one issue on appeal: that the trial court erred in denying his motion for a mistrial.[2] 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.

         Our 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.

         We 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 ...


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