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NOLEN v. STATE12/13/1982
The appellant was driving an automobile when it collided head on with another vehicle, killing a passenger and seriously injuring the driver of that car. The appellant was convicted by a jury of manslaughter (Ark. Stat. Ann. 41-1504 [Repl. 1977]) and battery in the
first degree. (Ark. Stat. Ann. 41-1601 (1) (c) [Repl. 1977]). He was sentenced to five years on each offense with the sentences to run consecutively. The appeal was certified to this court pursuant to Rule 29 (1) (c) of the Rules of the Supreme Court, because it involves the construction of an act of the General Assembly and rules governing criminal trials in circuit court.
The appellant relies upon two points for reversal, neither of which has merit. First, he contends that the trial court erred in denying his motion for mistrial. Two days before the trial the appellant moved in limine to prevent the state from introducing evidence of or making any reference to his seven prior convictions for driving while intoxicated. The trial court granted the motion. During his opening statements to the jury, appellant's counsel stated that there would be testimony that the appellant had consumed only a small amount of alcohol on the day of the collision; that the collision occurred because he momentarily took his eyes off the road when he reached down to pick up a radio or cassette player that had fallen from the dash to the floor of his car; when he looked up he was at the scene of impact; and when he hit his brakes, they grabbed, causing him to veer to the left into the path of the victims' car. Later in the trial, after several of the state's witnesses had testified as to the high rate of speed of appellant's car and his intoxicated condition, the trial court announced that if the appellant's proof developed as was outlined in the opening statement, which indicated that the collision was a "pure accident", it would change its in limine ruling and, if appellant testified, permit cross-examination under Rule 404 (b) about his previous DWI convictions. The appellant then moved for a mistrial, which the court denied.
We first note that appellant's trial preceded our ruling in State v. Vowell, 276 Ark. 258, 634 S.W.2d 118 (1982), where we held that it was not error to allow the state to cross-examine, pursuant to Ark. Stat. Ann. 28-1001, Rule 404 (b) (Repl. 1979), an almost identically situated defendant with respect to his prior DWI convictions. The issue here is whether the trial court committed reversible error in changing his in limine ruling during the trial. The only prejudice
claimed by the appellant is that his attorney, in reliance upon the court's in limine ruling, told the jury in his opening statement what it could expect to hear from the appellant at trial. Because of the court's reversal of his in limine ruling, the appellant exercised his right not to testify and thus was precluded from producing the evidence that the jury was told it would hear. Therefore, he claims he was entitled to a mistrial.
We now examine the in limine oral motion. The state took the position that the seven previous DWI convictions were relevant and admissible evidence on cross-examination Appellant's counsel took the position that the appellant did not deny that he was drinking and that his defense would be that he was not drunk and that it was a "pure accident". In urging the court to grant his motion to disallow any reference to his previous convictions, appellant's counsel stated:
. . . he mere fact that he is DWI doesn't necessarily mean that caused the accident. See, he might have been hit from behind and pushed into somebody, you know. There are a lot of different fact situations. What I am saying is,
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