dissenting.
In its opening statement, defense counsel disclosed that appellant, Roderick Williams, had prior convictions. During her testimony, Kerman Harris, in an unresponsive answer regarding the relationship between her mother and Williams, indicated that Williams “had threatened her [mother] and when she went to court it was terroristic threatening, which Roderick Williams was convicted of.” Defense counsel objected and moved for mistrial. The trial court denied the motion and instructed the jury not to consider the answer. Defense counsel objected, claiming the court should have told the jury that the statement was false, yet failed to proffer its own instruction. Further, defense counsel declined to cross-examine the witness.
During oral arguments held February 11, 2010, when asked if the jury instruction could have been cured by a proper instruction, defense counsel responded, “I think that if the trial judge had said, ‘jury, there is no evidence to support this, and the State and the defense both agree that this is a false statement,’ I believe, that would have gone a long way to curing it.”
Defense counsel now admits that the problem could have been cured, but for the defense’s failure to proffer his own curative instruction.
This court has repeatedly stated that the decision to grant or deny a motion for mistrial is within the sound discretion of the trial court. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). A trial court will not be overturned unless there is a showing of abuse or manifest | ^prejudice to the appellant. Id. “[A] mistrial is a drastic remedy and should be declared when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when it cannot be cured by an instruction.” Travis v. State, 371 Ark. 621, 625, 269 S.W.3d 341, 344 (2007). “Absent evidence to the contrary, there is a presumption that’the jury has obeyed its instructions.” J.E. Merit Const., Inc. v. Cooper, 345 Ark. 136, 150, 44 S.W.3d 336, 347 (citing Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999)). On the facts of this case, Ms. Harris’s statement did not prejudice Appellant to the extent necessary to warrant a mistrial.
Though we say that declaring a mistrial is a drastic remedy, here the majority unnecessarily reverses the trial court. Since defense counsel told the jury in advance that Appellant had prior crimes in his background, then defense counsel failed to proffer his own instruction, and also refused to cross-examine the witness, I would affirm the trial judge’s denial of motion for mistrial. I find it imprudent of the majority to assume, contrary to Pearson, supra, that the jury would not follow the curative instruction. I think that the majority’s grant of a drastic remedy that the trial judge refused is improper because it is contrary to established case law and good judgment. I would affirm.
WILLS, J., joins this dissent.