Appellant Daniel Nostice. kidnaping, rape, and residential burglary, and was given two life sentences for the kidnaping and rape convictions, and forty years’ imprisonment for the residential burglary conviction. The sentences were ordered to be served consecutively. Mr. Peters appeals his convictions on the sole ground that a statement by a State’s witness regarding a missed polygraph appointment was highly prejudicial and the trial court erred in not granting a mistrial. We disagree and affirm the convictions. Because Mr. Peters was sentenced to life in prison, we have jurisdiction over this appeal pursuant to Ark. Sup. Ct. R. l-2(a)(2).
At trial, the prosecution’s first witness was Chief Robert Drake of the Stamps Police Department. Chief Drake testified about how the victim’s car, which had been stolen by her assailant, was found in Louisiana approximately eighteen months after the crimes occurred. Police had questioned a witness, who identified Mr. Peters from a photo lineup as the man who was in possession of the victim’s car outside a Louisiana night club. During his testimony, the following colloquy took place between the prosecutor and Chief Drake:
Q. I ask you, did an initial interview took [sic] place and Mr. Jones questioned [Mr. Peters] about a stolen car?
A. Yes, sir.
Q. And I want to know what actually was asked about the car that was recovered in Louisiana and if he had any statements to make about that?
A. His statement was that he didn’t rape Ms. Hardeman.
Q. So, he’s asked about a stolen car, and his first response was, “I didn’t rape Ms. Hardeman”?
A. Yes.
[Defense counsel]:
Wait a minute. I object. And again, that’s not what he said. He said that was his statement. He came back and said his first statement was. He’s in effect testifying for the chief there.
Q. What was his response to finding the car stolen and recovered in Louisiana?
A. “I didn’t rape Ms. Hardeman.”
Q. Was that responsive to the question asked?
A. No.
Q. Now, did Mr. Peters at that time offer anything to you [to show] whether he may be innocent of this rape charge?
A. No.
Q. He didn’t offer you any blood?
A. Excuse me?
Q. He didn’t offer to give you blood?
A. Oh, yes, sir. After Mr. Jones and him talked a little bit more, uh, he, I had already had a polygraph set up for him on February 14th, and he did not show for it, so ...
[Defense counsel]:
I object. If the Court please, may we approach the bench?
At this point, defense counsel moved for a mistrial, and a lengthy discussion took place between the court and attorneys from both sides. Defense counsel argued that, when the polygraph reference was immediately preceded by the statement that Mr. Peters had denied raping Ms. Hardeman, and it was coupled with the fact that Mr. Peters missed the scheduled polygraph appointment, the only conclusion the jury could possibly come to was that Mr. Peters missed the appointment because he was guilty and was afraid of failing the polygraph.
Extensive discussions on the motion for mistrial took place between the court and counsel that afternoon and the next morning. The trial court admonished the jury that polygraph tests are inadmissible and should not be considered for any reason. Then the trial court, without objection, polled the jurors individually in chambers, and each juror responded that he or she had drawn no inference from ChiefDrake’s statements. The trial court instructed the jury to disregard the statement about the scheduled polygraph test, and denied the motion for mistrial.
During the trial, the victim was unable to identify Mr. Peters as her attacker. However, another prosecution witness, Ms. LaCondra Stephens, made an in-court identification of Mr. Peters as the man who had been in possession of the victim’s car in Louisiana. Forensic DNA evidence matched Mr. Peters’s DNA to semen on a vaginal swab taken during the victim’s rape exam. Furthermore, the jury heard testimony that the probability of a random individual from the black population having the same genetic markers as those identified in the DNA sample on the vaginal swab were approximately 1 in 3 billion. The jury returned verdicts of guilty on all charges.
Mr. Peters’s argument on appeal mirrors the argument made at trial. Specifically, he contends that a mistrial was warranted because, confronted with Chief Drake’s statement that Mr. Peters missed his scheduled polygraph test, the jury could have only come to the conclusion that Mr. Peters was afraid the polygraph test would show he was guilty. Mr. Peters contends that testimony about polygraph tests is inadmissible because polygraphs are considered unreliable and prejudicial. Chief Drake was the State’s first witness; thus, Mr. Peters contends the prejudice caused by the statement about the polygraph was substantial in that it colored the remainder of the trial.
Mr. Peters further contends the long discussions about the motion for mistrial that were held out of the hearing of the jury, and the polling of the jury, even more impressed upon the jury’s minds the importance of Chief Drake’s statement. Mr. Peters concludes that the prejudicial nature of the statement coupled with all the attention given it so prejudiced the jury that he should have been granted a mistrial.
A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003); Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Walker v. State, supra; Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).1
The results of polygraph examinations are inadmissible in all Arkansas courts. See Ark. Code Ann. § 12-12-704 (Repl. 2003). However, in the instant case, though information regarding a missed polygraph appointment was before the jury, there was no mention of any polygraph result. Therefore, we turn our focus to whether the mention of the missed polygraph appointment itself was prejudicial enough to warrant a mistrial.
Several times, we have dealt with the denial of a request for mistrial when information about a polygraph test has deliberately or inadvertently been elicited from a witness in a jury trial. In Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980), we stated that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, normally constitutes prejudicial error. Nonetheless, we held the trial court did not err in denying Van Cleave’s motion for mistrial, because the defense had not made a timely objection when reference had been made to a witness’s polygraph test.
In Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981), we held that it was an abuse of discretion to deny a motion for mistrial when a witness referred repeatedly to her polygraph exams, in an attempt to bolster her assertion that she had been truthful from the time she took the polygraph. The defense timely objected to each reference, but the trial court refused to entertain the objections. Id.
However, in Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990), we concluded that our holdings in Van Cleave, supra, and Roleson, supra, were overbroad:
[We] take this opportunity to clarify our position on references to polygraph examinations. While neither the results of a lie detector examination nor testimony that indirectly or inferentially apprises a jury of the results of a lie detector examination are admissible, the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. See Johnson v. Florida, [166 So.2d 798 (Fla. 1964)]. [Emphasis in original.]
Consequently, a witness’s veracity cannot be bolstered or discredited by proof of his taking or refusing a lie detector test, and evidence of a witness’s willingness or reluctance to be examined is also prejudicial and inadmissible to prove consciousness of innocence or of guilt. Id. [Emphasis added.]
Wingfield v. State, 303 Ark. At 296-97, 796 S.W.2d at 576.
We referred to Wingfield recently, in Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000), when we held that a trial court did not abuse its discretion by denying a mistrial:
Under the circumstances, Appellant has failed to demonstrate that the trial court abused its discretion by denying the mistrial. The witness’s remarks were spontaneous and obviously not solicited by the prosecution. More importantly, there was no prejudicial inferencefrom the witness’s remarks, as it was not evidentfrom her testimony how Appellant scored on the test. This court has held that “the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial ifno inference as to the result is raised or if any inferences [that] might be raised as to the result are not prejudicial.”
Id. at 177-78, 33 S.W.3d at 127 (citing Wingfield v. State, supra) (emphasis added).
After Chief Drake’s referral to the missed polygraph appointment, Mr. Peters moved for a mistrial, stating that the statement was inadmissible, non-responsive, and so prejudicial that it could not be corrected. The prosecutor agreed that the statement was non-responsive, but asked the trial court to cure the error with a cautionary instruction to the jury. The prosecutor pointed out that Chief Drake’s statement made no reference to polygraph results — only that a polygraph had been scheduled and Mr. Peters had missed the appointment.
Defense counsel told the trial court that he was concerned an admonition would draw more attention to the polygraph remark, but stated, “I’m not saying I’m asking the court not to give a cautionary instruction.” The prosecutor admitted that “the very mention of it is certainly highly prejudicial.” The prosecutor went on to argue a cautionary instruction was enough, because, “there’s no evidence of what happened, he hasn’t even said the guy didn’t take it and pass it.”
On appeal, Mr. Peters argues that this case is distinguishable from Wingfield v. State, supra, because the jury would infer that the missed polygraph appointment meant he was guilty and, therefore, it was as prejudicial as telling a jury that he had failed a polygraph. Indeed, he frames his argument,
[T]he mention of the appellant’s missing a scheduled polygraph examination, without further explanation, leads to the inference that he missed it because of guilt. Why would he have missed the polygraph appointment if he were innocent?
In other words, Mr. Peters argues that the jury had to have drawn a negative inference from Chief Drake’s statement; and yet, the jurors themselves, when polled without defense objection, told the trial court that they had drawn no inference from Chief Drake’s statement. The dissent agrees with Mr. Peters and believes the “obvious inference” arising from Chief Drake’s testimony is that Mr. Peters missed his polygraph appointment because of “a consciousness of guilt.” However, considering that the jurors affirmed that they had drawn no inference from the remarks about the polygraph, the dissent must either be arguing that the mention of a missed polygraph appointment is per se prejudicial, or the dissent must believe the jurors were prejudiced even though they said they had drawn no inference from the remarks.
Furthermore, the dissent refers to the “mention of Peter’s reluctance” to take the test, and yet reluctance was not itself mentioned, but was just one possible inference one could draw from a missed polygraph appointment, and the jurors drew no such inference. Certainly, willingness or reluctance to take a polygraph is prejudicial according to Wingfield, supra, and is inadmissible “to prove consciousness of innocence or of guilt.” However, the jurors did not infer reluctance, and the prosecution did not deliberately elicit the polygraph reference or use it in any way to prove consciousness of innocence or of guilt, even assuming that one can draw from a missed appointment the conclusion that Mr. Peters was reluctant to take the polygraph. Considering the myriad reasons people miss appointments, such a conclusion is not warranted by the mere mention that Mr. Peters had missed a polygraph appointment.
In fact, the record shows that Mr. Peters himself provided the jury with another possible reason for missing the appointment, as shown from a colloquy between Mr. Peters and his counsel during his direct examination:
Q. So you lied to him about the car?
A. Right. I did.
Q. Why did you do that?
A. Like I said, I wasn’t tryin’ to get locked up. I mean, I’m only just keepin’ it, just bein’ real about it. Ain’t nobody tryin’ to go to jail. Even though I know I’d messed up, but I wasn’t just fbrin’ to say, “Well, okay, here.”
Q. All right, but the point is, you didn’t tell him the truth?
A. Right.
Q. Now, what happened next, if anything, that’s of any importance to this case?
A. Well, uh, Officer Drake at that date set up an appointment for me and him.
Q. Now, wait a minute. Wait a minute.
At this point, defense counsel asked to approach the bench and, at the bench, the court asked him, “About to cure our halfday mistrial motion?” Obviously, the “appointment” to which Mr. Peters was referring was the appointment for the polygraph. Defense counsel asked to be able to instruct his client not to mention the polygraph and the trial court allowed him to do so. The direct examination continued:
Q. I think I forgot where we were in the chronology of events, but I think you had been interviewed by Chief Drake in February of 2002, and you had related the events with the victim’s car as of March of 2001. Is that right?
A. Right.
Q. And then after that interview in 2002 with Chief Drake, when approximately was the next time anybody wanted to talk to you about it? State wise?
A. Chief Drake the same day. He wanted to talk to me later on that week. That’s what I was fixin’ to tell you.
Q. All right.
A. He came and he told me, or he said,“I’m gonna come through the neighborhood later on today. If I see you I’ll tell you what time.” He came by later on that evening. I was standing by the dairy, you know. He saidThursday at 1:00.1 want,you know what I’m sayin’,
I want to talk to you again. I said, “Okay. Fine.”
Q. So you were there? Did you go there?
A. Did I go that Thursday?
Q. Yes.
A. No.
Q. Why not?
A. Well, because he already told me that the reasons he, you know what I’m sayin’, he’d already told me that it wasn’t necessary and it didn’t hold any value. So, I wasn’t really obligated anyway.
Q. You didn’t feel like you had to show up?
A. Naw, really, I didn’t. He’d already told me that. So, I just uh, at the time uh, some more stuff came up, so I left town. But it was unrelated to this though.
It is clear to us that this colloquy concerned the missed polygraph appointment, and Mr. Peters gave the jury another possible reason why he missed the appointment — because Chief Drake told him it wasn’t necessary for him to be there and the polygraph “didn’t hold any value.” It is a far leap for Mr. Peters to say the jury heard this perfectly plausible reason for missing a polygraph appointment and would still believe the only possible reason for missing it was fear of failing it.
In the case of Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995), we held that it was not an abuse of discretion when a trial court refused to grant a mistrial after the prosecutor improperly commented on the defendant’s failure to testify. Such references to a failure to testify violate the Fifth Amendment privilege against self-incrimination, but such error can be harmless if it is shown beyond a reasonable doubt that the error did not influence the verdict. Id. at 105, 896 S.W.2d at 428 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d. 705 (1967)). In Bradley, we held that the prejudicial remarks by the prosecution were harmless error because the evidence of the defendant’s guilt was overwhelming. Id.
Here, we do not believe that Mr. Peters has shown prejudice, because only a negative inference of guilt or reluctance could be prejudicial, and the jurors declared that they had made no such inference. Furthermore, the trial court took care to give a cautionary instruction to the jury regarding Chief Drake’s remarks. Nonetheless, even assuming prejudice could be shown as a result of the polygraph reference, here, as in Bradley v. State, supra, the evidence of guilt was overwhelming. If we excise Chief Drake’s improper remarks, as we did in Bradley, we are still left with substantial evidence of Mr. Peters’s guilt. Michael Norwicki, a forensic biologist with the Arkansas State Crime Lab, testified that Mr. Peters’s DNA matched that on the vaginal swab taken from the victim, and the probability that the DNA came from another random individual from the black population was approximately one in three billion. In addition, the victim’s car was stolen by her assailant after the attack, and Mr. Peters was identified by LaCondra Stephens as being in possession of that car approximately a month after Ms. Hardeman was raped. There was evidence that Mr. Peters knew the victim from work and had once asked her, “Where you been all my life?” On another occasion, when the victim was present, Mr. Peters commented to one of her coworkers, “Hey, man, why didn’t you tell me this good lookin’ woman stayed down there by you.”
It is clear that the jury heard evidence that Mr. Peters knew who the victim was, knew where she lived, was seen in her stolen automobile a short period of time after the attack, and was a positive “one out of three billion” DNA match to the rapist. The dissent states that “the evidence received later could not alter the inference that Peters argued he was innocent but was unwilling to prove it.” Yet, if Chief Drake had never made the remark about the polygraph, there would still have been overwhelming evidence of Mr. Peters’s guilt,. Chief Drake’s comment, even if one could make a negative inference from it, does not negate the remainder of the evidence presented to the jury.
Mr. Peters has argued that the only inference the jury could have made was that he was afraid to take the polygraph exam because he was guilty, and that such an inference was prejudicial. On the facts of this case, we hold that Mr. Peters has not met his burden of showing the jury was prejudiced in any way by Chief Drake’s referral to the missed polygraph exam. Moreover, even if prejudice could be presumed from the polygraph remarks, any error caused by that prejudice was harmless in view of the overwhelming evidence of Mr. Peters’s guilt. Accordingly, we hold that the trial court properly denied the motion for mistrial. As the denial of the motion for mistrial was the sole point on appeal, the convictions for rape, kidnaping, and residential burglary are affirmed. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.
Affirmed.
Thornton and Hannah, JJ., dissent.The dissent criticizes our use of this standard of review, stating that the proper standard is not that of a review of the denial of a motion for mistrial, but that we should have instead analyzed this appeal in light of the denial of a fair and impartial jury. However, all motions for mistrial are made due to a belief that the jury is no longer fair and impartial because it has been tainted in some way by prejudicial error. This case is no different than other cases in which motions for mistrial have been denied for such a reason. In support of its argument, the dissent cites to two cases in which defendants were denied fair and impartial juries from the outset because the makeup of the jury panel was tainted when qualified jurors were stricken and not allowed to serve on the panel. Such an analysis is not triggered here, where there has been no challenge to the impartiality of the jury that was chosen, and the only challenge is that the jury heard evidence that could have, but did not, taint it.