Willie Banks, Jr. v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

WILLIE BANKS, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-143

December 19, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. CR 99-1198]

HON. MARION HUMPHREY,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with committing first-degree battery by stabbing his girlfriend eight times with a knife during an argument at a gas station. At trial, the victim and two disinterested witnesses identified the appellant as the assailant and testified that he stabbed the victim repeatedly. Appellant was sentenced to sixty years' imprisonment. From that decision, comes this appeal.

For reversal, appellant argues that the trial judge erred in refusing to declare a mistrial after the victim, in an unresponsive answer, testified that she had been arrested with appellant in 1991. We find no prejudicial error, and we affirm.

Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The trial court should resort to mistrial only where the error complained

of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Since the trial court is in a better position to determine the effect of a remark on the jury, it has wide discretion in granting or denying a motion for a mistrial, and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Ferguson v. State, supra. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Moore v. State, supra.

The unresponsive answer in the present case occurred as the defense attorney was cross-examining the victim. He asked her if she was a convicted felon. She answered that she was not. After a discussion between counsel at the bench where it was suggested that the victim had been convicted only of a misdemeanor, the defense attorney asked her if she had a conviction from 1991. She responded: "Yes. But who was I arrested with? Willie Banks."

Actual prejudice must have resulted from an unresponsive answer for the trial court's failure to correct it to be considered reversible error. See Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987). Here there was no prejudice.

First, the unresponsive remark was fairly innocuous. It only mentioned arrest, not conviction, and it was not even clear whether appellant had himself been arrested during the incident, or whether he had merely been with the victim when she was arrested. Theunresponsive answer therefore only raised the possibility that appellant had a prior criminal record. See Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987).

Second, the proof of appellant's guilt in this case was overwhelming. Three witnesses, two of them disinterested and unrelated strangers, testified that they saw appellant stab the victim several times at the gas station. There was no question as to identity. As to the degree of the offense, it is true that first-degree battery requires the jury to find that there has been a serious physical injury, i.e., physical injury that creates a substantial risk of death or that causes protracted disfigurement, see Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Ark. Code Ann. § 5-1-102 (Supp. 2001), but here there was testimony not only of protracted impairment to appellant's hand, but also the testimony of disinterested witnesses that she was bleeding profusely from her wounds and that she was in danger of bleeding to death. Where, as here, the evidence of guilt is overwhelming, slight errors in the admission of evidence do not constitute reversible error. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).

Third, we note that the unresponsive statement could not possibly have prejudiced appellant during the sentencing phase, when the State introduced evidence that appellant had twice been convicted of rape. We think that testimony from an obviously hostile and agitated victim that appellant had been present at her arrest in 1991 would be a matter of very small import to a jury that had before it concrete evidence of two rapes and a brutal stabbing.

Affirmed.

Stroud, C.J., and Griffen, J., agree.