Opinion
No. CACR12-417
01-23-2013
DAVID EDWARD MCLAUGHLIN APPELLANT v. STATE OF ARKANSAS APPELLEE
The Copeland Law Firm, by: Casey D. Copeland, for appellant. No response.
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NO. CR-11-352-4]
HONORABLE MARCIA R.
HEARNSBERGER, JUDGE
AFFIRMED; PETITION FOR BOND
DENIED
BILL H. WALMSLEY, Judge
Appellant David McLaughlin appeals his convictions for commercial burglary and criminal mischief. For his sole point on appeal, he argues that the trial court erred in denying his motion for mistrial following a violation of the court's ruling on a motion in limine. We affirm.
Appellant was charged with commercial burglary and first-degree criminal mischief after a break-in at a Big Lots store. Prior to trial, appellant filed a motion in limine seeking to prevent the admission of a letter he allegedly wrote to the store manager of Big Lots offering to pay restitution for damages. Appellant argued that the letter was inadmissible pursuant to Rule 408 of the Arkansas Rules of Evidence and that the prejudicial effect of the letter would outweigh any probative value. The court heard arguments on the motion but did not announce a ruling at that time. At trial, the court announced that the motion in limine had been granted.
Virginia James, the Big Lots store manager, testified at the jury trial. During direct examination of James, the prosecutor asked her if she was "acquainted with a person by the name or David McLaughlin." James responded that she had "received a letter from him." Appellant objected and moved for a mistrial, arguing that the witness's statement was prejudicial and could not be cured. The trial court denied the motion. James testified further that she did not know appellant and that he did not have permission to be in the store overnight. The jury found appellant guilty of both charges, and he was sentenced as a habitual offender to sixty years' imprisonment. Appellant filed a timely notice of appeal.
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 with the trial or when the fundamental fairness of the trial has been manifestly affected. Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006). A circuit court has wide discretion in granting or denying a motion for a mistrial, and, absent an abuse of that discretion, the circuit court's decision will not be disturbed on appeal. Id. Among the factors this court considers on appeal in determining whether a circuit 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. Id.
Appellant argues that the State intentionally elicited the reference to the letter from James. He claims that the trial court abused its discretion when it denied the motion for mistrial and then failed to give any type of curative instruction or tell the jury to disregard the testimony. The State argues that the record reflects that the prosecutor's purpose in asking that question was to establish that appellant was unlawfully in the store, and not to deliberately elicit a reference to the letter. The State also argues that appellant did not ask the trial court to admonish the jury and notes that this court "will not reverse a trial court for failing to do what it was never asked to do." Engram v. State, 341 Ark. 196, 205, 15 S.W.3d 678, 683 (2000).
We agree with the trial court that the witness's reference to a letter was not so prejudicial as to warrant a mistrial. With no testimony as to the letter's content, James's statement provided no evidence of appellant's guilt to the jury. We also agree with the State that the prosecutor did not deliberately induce a reference to the letter. Furthermore, our supreme court has held that an admonition will usually remove the effect of a prejudicial statement and that the party objecting to the testimony bears the burden of requesting an admonition sufficient to cure the prejudice. Williams v. State, 2011 Ark. 432, ___ S.W.3d ___. The defendant did not request the court to admonish the jury; thus, he cannot now complain about the failure of the court to admonish the jury. The testimony was not so prejudicial that justice could not be served by continuing with the trial. We hold that the trial court did not abuse its discretion, and we affirm.
Additionally, appellant's pro se petition for an appeal bond, filed with this court on December 11, 2012, is denied.
Affirmed; petition for bond denied.
GLADWIN, C.J., and PITTMAN, J., agree.
The Copeland Law Firm, by: Casey D. Copeland, for appellant.
No response.