dissenting.
Doris Watson testified that appellant, Bruce Lamont Bailey, a former boyfriend, accosted her as she was walking near her home. He forced her into a room at the Oasis Motel, where he kept her bound and gagged for twenty-four hours. She was beaten, whipped with an electrical cord and raped repeatedly. The testimony of a physician and nurse who examined her after she escaped established the presence of male sperm in her vagina, “numerous whelps and bruises” on her body and a “significant amount” of trauma to the external vagina. She was fifteen years old.
The appellant did not testify. The theory of the defense was that the witness had gone willingly into the motel room with Bailey. The defense called two witnesses who testified they had seen Bailey and Doris Watson near the motel — one said they were arm in arm, the other said nothing out of the ordinary occurred.
The majority opinion does not suggest that the prosecutor made a direct reference to the appellant’s having declined to testify, when he said:
The only thing that we’ve heard here today about which occurred in that room is from Doris Watson. She’s the only person. These two ladies that were called, they weren’t in that room.
but finds that a “veiled reference” was present in the remarks, thus bringing them within the ambit of Adams v. State, 263 Ark. 536, 566 S.W.2d 263 (1978), where the prosecutor said:
To convict him, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?
I submit that finding the dividing line between “veiled references” that are permissible as opposed to those that are not is too subjective, as almost any remark which alludes to the weakness of the defendant’s case might be seen as a “veiled reference” where the defendant has not testified or called other witnesses. The problem is more than theoretical, and the absence of an objective standard is creating difficulties for both appellate courts and doubtless for prosecutors and trial judges as well. See dissenting opinions of Chief Justice Harris and Justice Fogleman, Adams v. State, supra, and the majority and dissenting opinions in Phillips v. State, 12 Ark. App. 319, 676 S.W.2d 753 (1984).
Obviously, a better test is needed than the ad hoc basis now being applied. I believe the prosecutor should be able to refer to the weakness of the defendant’s case, or to the absence of contradictions in the state’s proof, so long as he or she does not point to the fact that the defendant has not testified, or imply that inferences may be drawn from the defendant’s silence. Where the remarks are marginal and fall within what might be called “veiled references,” we would do better to rely on the trial judge to gauge the impact of the remarks. See Perry v. State, infra.
Moreover, I fail to see how the remarks in this case can be seen as drawing attention unduly to the defendant not having testified. The remarks are little more than a fair comment on the evidence. What is the difference in the prosecutor saying, “the only thing we’ve heard here today about what occurred in that room is from Doris Watson,” and, “Doris Watson’s testimony that she was raped, beaten and kept prisoner is uncontradicted and undenied,” which we have upheld, (Moore, Frazier & Davidson v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968); Harris v. State, 260 Ark. 646, 543 S.W.2d 459 (1976)) or, “what explanation has [the defendant] made?,” which we upheld in Cascio v. State, 213 Ark. 418, 210 S.W.2d 897 (1948); or “Doris Watson’s testimony is undisputed and undenied and he (the defendant) cannot deny it,” (upheld in Davis v. State, 96 Ark. 7, 130 S.W. 547 (1910)); or, “You haven’t heard one person who was there testify that [Bruce Lamont Bailey] didn’t do this. The people that were there all told you that [Bruce Lamont Bailey]. . . ,” which was upheld in Phillips v. State, supra.
The majority says the prosecutor “must have been referring to the appellant’s failure to testify,” when he said the only thing we’ve heard here today about what occurred in that room is from Doris Watson. But that ignores testimony that the appellant’s brother, Willie Foreman, was also in the room during the time Doris Watson says she was held there against her will. That surely negates the majority’s conclusion that the remarks drew attention to the appellant’s failure to testify. Some courts have distinguished similar remarks when other witnesses could have been called by the defense. See State v. Brown, 132 N.W.2d 840 (S.Ct. S.D. 1965).
We have often said that a mistrial is a drastic remedy — one that should be resorted to only when the prejudice is so manifestly clear that the trial cannot injustice continue. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984); Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). These remarks hardly rise to that level, indeed, they are less pointed than many this court has approved over the years. See cases cited in Chief Justice Harris’ dissent, Adams v. State, supra, and Phillips v. State, supra. In Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), we recognized that the trial court’s ability to judge the character of these issues was superior to our own:
We are not in a position to know how the statement was delivered, with what inflections and emphasis, and are not able to see how the jury perceived it. The trial court has a broad latitude of discretion in supervising and controlling arguments of counsel and its decisions are not subject to reversal unless there is a manifest abuse of that discretion.
I believe the remarks in the case fall in that category and we should leave the trial judge’s discretion undisturbed.