Opinion
No. CR 89-53
Opinion delivered September 11, 1989
1. TRIAL — MISTRIAL IS EXCEPTIONAL REMEDY. — A mistrial is an exceptional remedy to be used only where any possible prejudice Cannot be removed by an admonition to the jury. 2. TRIAL — NO ABUSE OF DISCRETION TO DENY MISTRIAL BASED ON PROSECUTOR'S REMARKS. — The trial judge did not abuse his discretion by denying a mistrial where the prosecuting attorney stated that "a real professional" committed this robbery and that the evidence showed that the appellant was the real professional, and where the trial judge admonished the jury to base their decision only on the evidence and not on the statements made by the attorneys. 3. TRIAL — ESTABLISHING IDENTITY OF ROBBER — HAVING SOMEONE STAND IN THE COURTROOM. — In attempting to have answered the question of whether the mother or the daughter was the robber, the prosecutor used poor judgment in asking the daughter, who was evidently in the audience, to stand, but since the record does not show that the daughter actually stood, the appellate court could not say the judge abused his discretion in denying a mistrial. 4. APPEAL ERROR — PREJUDICE NOT PRESUMED. — Prejudice is not presumed where the appellant has not demonstrated any.
Appeal from Sebastian Circuit Court; Floyd B. Rogers, Judge; affirmed.
R. Paul Hughes III, for appellant.
Steve Clark, Att'y Gen., by: Tim Humphries, Asst. Att'y Gen., for appellee.
Judy Holbird was convicted of the aggravated robbery of the Mug n Jug in Fort Smith on March 14, 1988. The appellant was also convicted of being a felon in possession of a firearm. The manager and another employee identified the appellant as the robber. The manager described how the robbery occurred, how the appellant was dressed and the gun she used. His testimony was corroborated by the appellant's confession. However, at trial she argued that she confessed because she thought her daughter had robbed the Mug n Jug and she wanted to protect her.
[1, 2] On appeal she argues the trial judge should have granted a mistrial for prosecutorial misconduct. "A mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury." McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). The question here is whether the trial judge abused his discretion. See Holbird v. State, 299 Ark. 245, 771 S.W.2d 775 (1989). We find no abuse of discretion.
During closing arguments, the prosecuting attorney stated "a real professional" committed this robbery and that the evidence showed that the appellant was the real professional. The judge admonished the jury to base their decision only on the evidence and not statements made by the attorneys. We find no abuse of discretion.
The prosecutor tried to answer the question of the robber's identity — whether the mother or daughter committed the robbery — by asking the daughter, who was evidently in the audience, to stand. The prosecutor used very poor judgment, but we cannot say it should have resulted in a mistrial. The daughter had not been called as a witness. The record does not show the daughter actually stood, so we cannot say the judge's denial of a mistrial was in error. Prejudice is not presumed and the appellant has demonstrated none. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).
Affirmed.