dissenting. Because I believe that the trial court erred in failing to grant the appellant’s request for a mistrial, based on the State’s improper questioning of the appellant, I must respectfully dissent.
While the State was cross-examining the appellant, the following exchange took place:
Q. Have you ever had a chance for therapy before, Mr. Free?
A. No.
Q. Have you ever done anything like this before?
A. No.
Q. Are you positive about that?
A. I am positive.
Q. Wasn’t there a time, three years ago, when something like this happened and you had a chance to get some therapy.
A. I was accused of it, yes, but . . .
(Emphasis added.) At this point the appellant’s attorney objected and requested a mistrial, claiming that the last question was an improper inquiry into a prior bad act. The court sustained the objection and denied the motion for mistrial, saying:
I think the question was — this witness testified on. direct, or on cross, I guess it was, that he didn’t feel like there was any need for therapy, although he thought that might be one possibility that Officer Hancock was extending to [him] after he confessed. He thought Officer Hancock was offering him possible therapy. He then testified he didn’t think he needed therapy because he didn’t think he had a problem. Now, [the prosecutor’s] question was getting to the point that some time in the past he had been offered therapy, and that is about as far as it went. I understand your concern but there has been no allegation, and I don’t think there should be, of prior bad acts.
(Emphasis added.) The court went on to give a cautionary instruction, in lieu of the mistrial, telling the jury to disregard totally any reference to any offer of therapy being extended to the appellant in the past.
The trial court erred in finding that there was no allegation of any prior bad acts and in denying the mistrial. While the State could question the appellant about his past possibilities for therapy, without bringing in the prior bad acts, it crossed the line with its last question, when it asked, “wasn’t there a time,. . . when something like this happened,” particularly in light of the appellant admitting in his answer that he had been accused of it. Furthermore, the admonition to the jury does not cure this error.
In Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), the Supreme Court held that no less than a mistrial could cure the error caused by the prosecutor deliberately asking Maxwell if he had been convicted of raping an eleven-year-old girl. The majority claims that Maxwell can be distinguished from the case at bar because here the appellant was given the chance to deny the statement, the appellant had not pled guilty, nor was he convicted of the crime, and the allusion to the prior act was not specific. I find no substantial difference between this case and Maxwell. It is inconsequential whether the appellant had the chance to deny participation in the prior act, had not pled guilty to the act, or had not been convicted of the act. As previously stated, the appellant’s answer to the last question clearly infers that the appellant had been involved in a prior case involving rape of a child, at least as a suspect. The Uniform Rules of Evidence do not provide that evidence of prior bad acts are inadmissible only if the appellant had been convicted of or pled guilty to the act. See generally Unif. R. Evid. 403-404, 608-9, Ark. Stat. Ann. § 28-1001 (Repl. 1979). Furthermore, I disagree that the allusion was not specific. While the State did not directly ask the appellant in this case if “wasn’t there a time, . . . when you raped an eleven-year-old child,” it came as close as one could without actually using those words, when, in a trial for the rape of a nine-year-old child, the State asked the appellant if there wasn’t a time “when something like this happened.”
The majority says there is no evidence of any deliberate misconduct by the prosecution in this case. I again must disagree. The record indicates that the prosecuting attorney knew of the prior incident, and then, at the very end of cross-examining the appellant, threw in a reference to “something like this happening” three years ago, in an attempt to impeach the appellant’s testimony as to therapy. I find, as did the Supreme Court in Maxwell, that the prosecutor’s conduct must have been deliberate, as he could not have reasonably expected the appellant to admit he had been involved in the rape of another child three years ago.
Finally, the mistrial should have been granted even if there is no evidence of deliberate misbehavior on the part of the prosecutor. In Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984), the Supreme Court reversed the trial court for failure to grant a mistrial after admission of evidence that the defendant in a rape case had offered drugs to the victim’s cousins and sister, ages five, six, and eleven, respectively. Unlike Maxwell, and like here, the prosecutor had contended that the evidence was admissible (there to show the cause of friction between the defendant and the victim’s family brought out by the defense). The Supreme Court stated:
Evidence of other crimes has long been considered the type that has no place in a trial. . . . [W]e have consistently held that admission of such evidence is cause for a new trial. . . . The admonition in this case was useless, the damage having been done. See Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983). The mere mention of “friction” by the defense was no reason to allow this type of evidence before the jury. . . . The error can only be cured by a new trial.
283 Ark. at 152-3; accord, Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984). In Lackey, there was no evidence to show that the prosecutor deliberately asked inadmissible questions or that the defendant had been convicted of those crimes. It simply did not figure in the Court’s decision. Instead, in both Lackey and the case at bar, the prosecution argued that the line of questioning had been opened up by the defense. The Court in Lackey rejected that argument, and we should reject it here. The error here is even more prejudicial than the error in Lackey and Maxwell, as it not only involves a terrible crime against a child, it is a crime similar to the one for which the appellant stood trial.
I am authorized to say that Corbin and Glaze, JJ., join in this dissent.