Paulson v. State , 470 S.W.3d 263 ( 2015 )

Cite as 2015 Ark. 345SUPREME COURT OF ARKANSAS
No. CR-15-165
ERIC SCOTT PAULSON Opinion Delivered October 1, 2015
APPELLANT
APPEAL FROM THE LOGAN
V. COUNTY CIRCUIT COURT
[NO. 42BCR-13-74]
STATE OF ARKANSAS HONORABLE JERRY DON RAMEY,
APPELLEE JUDGE
AFFIRMED.
ROBIN F. WYNNE, Associate Justice
Eric Scott Paulson appeals from his conviction for one count of rape, for which he was
sentenced to life imprisonment. On appeal, he argues that the trial court erred by denying
his motion for mistrial during voir dire of the jury. We find no error and affirm.
During voir dire of the jury, the prosecutor made the following statement:
Have – In this case I expect you are going to hear testimony from children or
teenagers. Do each of you feel that you can listen to that testimony and give it the
same weight as you would an adult? Would any of you automatically believe the
testimony of an adult over a child? If a child testified they were sexually abused, and
an adult said, “No, I didn’t do it,” would you automatically believe that since he [said
he] didn’t do it, that created reasonable doubt?
Appellant objected, arguing that the prosecutor’s comment had infringed on his right not to
testify. Appellant then moved for a mistrial. The trial court overruled the motion. The
prosecutor then asked the jury panel if it would create reasonable doubt if a child testified that
he or she had been sexually assaulted and the adult said it did not happen. Appellant again
Cite as 2015 Ark. 345objected, and the trial court overruled the objection, but warned the prosecutor to stay away
from the issue. Later during voir dire, appellant’s counsel stated on two separate occasions
that appellant was not required to testify and that the State had the burden of proving him
guilty beyond a reasonable doubt. After the jury had been selected, appellant stated that the
panel was satisfactory.
The jury found appellant guilty of the charge of rape, and he was sentenced by the trial
court to life imprisonment. This appeal followed.
Appellant’s sole point on appeal is that the trial court erred by denying his motion for
a mistrial. A mistrial is an extreme and drastic remedy that will be resorted to only when
there has been an error so prejudicial that justice cannot be served by continuing with the trial
or when the fundamental fairness of the trial has been manifestly affected. King v. State, 361
Ark. 402, 405, 206 S.W.3d 883, 885 (2005) (citing Moore v. State, 355 Ark. 657, 144 S.W.3d
260 (2004)). The circuit court has wide discretion in granting or denying a mistrial motion,
and, absent an abuse of that discretion, the circuit court’s decision will not be disturbed on
appeal. Id.
A comment on the failure of a defendant to testify in a criminal case is a violation of
the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution.
Griffin v. California, 380 U.S. 609 (1965). Appellant argues that the statement by the
prosecutor was an impermissible comment on his right not to testify at trial and that, as a
result, the trial court erred by denying his motion for a mistrial. We disagree. It was
conceivable that part of appellant’s defense at trial was going to be that the victim was not
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Cite as 2015 Ark. 345being truthful in her allegation that a sexual assault had occurred, and the prosecutor was
attempting to determine whether any members of the panel would be predisposed to credit
a denial by an adult over an allegation by a child. In making the disputed statements, the
prosecutor was placing a hypothetical situation before the panel, and never mentioned the
issue of appellant testifying at trial. The prosecutor never referenced appellant by name or as
“the defendant.” Indeed, the only attorney who mentioned testimony by appellant was
appellant’s counsel, who stated on two separate occasions during voir dire that appellant was
not required to testify in his defense and that the State had the burden of proof with regard
to whether appellant committed the offense charged. In a case involving similar facts, our
court of appeals upheld the denial of a motion for mistrial following a statement by the
prosecutor during jury voir dire that the case came down to the testimony of the minor
victim and an adult who was the defendant, because the prosecutor did not mention the
defendant’s testimony or possible testimony, and the question, as in the instant case, was
meant to ascertain whether the jury would be willing to believe the testimony of the minor
victim. Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981).
In Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974), this court held that a
statement by a prosecutor during opening statements at a murder trial that the victim would
not be present, and that the story of what occurred would come only from the defendant,
violated the Fifth Amendment because it coerced the defendant to testify at trial. Appellant
argues that the statement by the prosecutor in this case was similarly coercive. He is mistaken.
As noted above, the issue of whether appellant would testify was not referenced by the
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Cite as 2015 Ark. 345prosecutor during voir dire. Nor could the statement be reasonably considered to have
created in the minds of the jury an expectation that appellant would testify. Thus, appellant
has failed to show how the statement by the prosecutor could have reasonably had the effect
of compelling him to feel as though he should testify at trial, especially considering the fact
that he elected not to testify. Because the trial court did not abuse its discretion by denying
appellant’s motion for a mistrial, its sentencing order is affirmed.
The record has been reviewed pursuant to Arkansas Supreme Court Rule 4-3(i), and
no reversible error has been found.
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, JUSTICE, dissenting..In my view, the case before us is
another treacherous step on a “slippery slope,” resulting in this court allowing its distaste for
mistrials to trump an accused’s constitutional rights.
Paulson relies on three cases. The first is Griffin v. California, 380 U.S. 609 (1965),
which, as the majority apparently agrees, stands for the proposition that a comment on the
failure of a defendant to testify in a criminal case is a violation of the Self-Incrimination Clause
of the Fifth Amendment to the United States Constitution. The second, not discussed by the
majority, is Mosby v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), where this court reversed
a conviction because the circuit court gave an instruction that referred to a defendant’s right
to not testify. The instruction stated:
A defendant may or may not testify in a case at his own discretion. The fact that a
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Cite as 2015 Ark. 345defendant did not testify is not evidence of his guilt or innocence and in fact is no
evidence at all and is not to be considered by you in arriving at your verdict.
Id. at 964, 440 S.W.2d at 231. The third, albeit distinguished by the majority, is Clark v.
State, 256 Ark. 658, 509 S.W.2d 812 (1974), where this court reversed the denial of a mistrial
where a remark in opening statement “coerced” the defendant to testify.
If you notice, I'm here by myself, and this vacant chair. He might be here to tell his
side but he’s not here. The story then that you will have about what happened out
there will come from her.
Id. at 654, 509 S.W.2d at 813. Notwithstanding the majority’s effort to distinguish Clark, I
contend, that Mosby and Clark stand for the broad proposition that a mistrial is appropriate
when a reference is made, either directly or indirectly, to a criminal defendant’s failure or
refusal to testify at trial. Mosby and Clark have never been overruled.
Inexplicably, none of these three worthy precedents have been followed, either at the
circuit-court level, or by this court on appeal. Inasmuch as this court has not renounced stare
decisis, I can only assume that this court’s stated distaste for mistrials—never favorites of the
law—has diverted this court from its mission of zealously defending an individual’s
constitutional rights. The consequences are what we now see before us.
My research indicates that the phrase describing a mistrial as “an extreme and drastic
remedy” first appeared in a dissent by Justice John Fogleman in Walker v. State, 253 Ark. 676,
681, 488 S.W.2d 40, 42 (1972). Since that time, it has been repeated 435 times in Arkansas
appellate-court decisions. Almost invariably, these decisions made a circuit court’s decision
not to impose a mistrial more insulated from being reversed on review and therefore, more
unlikely to be granted.
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Cite as 2015 Ark. 345As the majority notes, during voir dire of the jury, the prosecutor made the following
statement:
In this case I expect you are going to hear testimony from children or teenagers. Do
each of you feel that you can listen to that testimony and give it the same weight as
you would an adult? Would any of you automatically believe the testimony of an
adult over a child? If a child testified they were sexually abused, and an adult said, “No,
I didn’t do it,” would you automatically believe that since he [said he] didn’t do it, that
created reasonable doubt?
Paulson timely objected, arguing that the prosecutor’s comment had infringed on his right not
to testify. The very first argument the State made in defending its question was not that it was
proper, but rather that “first of all, a mistrial is an extreme remedy.” Its second argument was
that the question was “asked hypothetically.” More telling still is that in overruling the
objection, the circuit court’s first words were, “Mistrial is a drastic remedy.” Only then did
the circuit court state that the question was “a general reference” and that “I don’t think any
harm was done.”
However, the State proved to be relentless. As the majority notes, the State again
asked the venire, “If a child testified they were sexually assaulted and the adult said it didn’t
happen, would any of you feel this automatically creates reasonable doubt?” Again Paulson
objected, and asked for a mistrial. Only after the State insisted that it was entitled to an
answer did the circuit court admonish the State to “stay away from that issue.” Nonetheless,
the circuit court overruled Paulson’s objection.
It is disconcerting that a prosecutor, who is sworn to uphold the constitution, would
think it proper to so blatantly violate a criminal defendant’s Fifth Amendment rights. It is
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Cite as 2015 Ark. 345even more disconcerting that a circuit court would think more of seating a tainted jury panel
than upholding the constitutional rights of an accused.
The majority’s first rationale is, of course, that “a mistrial is an extreme and drastic
remedy.” I contend that sacrificing the constitutional rights of an accused just to avoid a
second trial is far more extreme and drastic. This court’s “extreme remedy” jurisprudence has
landed this state at the very bottom of that slippery slope. While there are several cases that
support the proposition that error could be cured by sustaining the objection and giving a
cautionary instruction, see, e.g.,Green v. State, 2013 Ark. 497, 430 S.W.3d 729, the circuit
court here did not even directly acknowledge that the question was improper. Obviously,
a cautionary instruction will not be given for an overruled objection.
Finally, the majority’s alternative basis for affirming this case, that the statement by the
prosecutor was not an impermissible comment on Paulson’s right not to testify at trial because
the question was only hypothetical, and Paulson was not referred to by name, is sheer
nonsense. Here, the jury tried a single count of rape. Accordingly, there was only one victim
and one perpetrator. Only one person who could possibly deny committing the crime, and
that person was sitting at the defendant’s table. It is inconceivable to me that anyone, save for
certain Arkansas Supreme Court justices who have supplied me direct evidence to the
contrary, could believe that the prosecutor was referring to anyone else.
I would reverse and remand this case for a new trial.
R. Kevin Barham, Logan County Public Defender, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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