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State v. Werner6/5/2003
ive instruction, the Court will make every attempt to dispel that motion."
The comment of the trial justice in denying the motion was both insightful and correct. For a reference to bad conduct to qualify as a basis for a mistrial, the comment must not only be prejudicial, but also irrelevant. State v. Cline, 122 R.I. 297, 330, 405 A.2d 1192, 1210 (1979). This testimony certainly was not irrelevant. It was necessary for Stoddard to describe his encounter with defendant. The exchange of conversation between them leading up to the shooting was not irrelevant, but an integral part of the witness's testimony, as the trial justice indicated. Since the testimony was not improper, it could not form the basis for a mistrial. In any event, at the request of counsel for defendant, the trial justice gave a long curative instruction to the jury.
This reference to drugs, though certainly prejudicial to defendant, did not have the effect of inflaming the jury, in light of the circumstances of this case. State v. Botelho, 753 A.2d 343, 349 (R.I. 2000). Moreover, a defendant does not have the right to be insulated from relevant truths even when they are prejudicial. Cline, 122 R.I. at 330, 405 A.2d at 1210. The trial justice did his best to minimize prejudice by the curative instruction.
"Well, as you know from all of our previous discussions, this case is not about drugs. No drugs were involved in this case. No drugs were found on anyone or given or received by anybody here. That reference is simply by way of introduction, the first contact that this witness is testifying that he had with whomever he is speaking about and if it turns out to be the alleged shooter in this case, I'm instructing you [ ]now that drugs have no place in this case. It has nothing to do with this case, and you may not in any way, shape or form consider this defendant or a person who is the subject of this testimony as having anything to do with drugs. Do you understand that, ladies and gentlemen?"
The trial justice did not err in refusing to grant defendant's motion for mistrial based upon McGonigle's testimony.
The defendant also argues that he was entitled to a mistrial after Stoddard's reference that he had identified defendant at the hospital from "a bunch of mug shots." No objection was made to this comment, but a short time later Stoddard again said that he had identified defendant from a mug shot. At this point, defendant's counsel objected and requested a mistrial because this testimony, combined with the reference to drugs, created significant prejudice to defendant. The trial justice denied the motion for mistrial but cautioned the jury as follows:
"Mug shot in common parlance simply means an array of photographs shown by the police. I'm sure you have all heard that expression before. It doesn't connote anything with regard to this defendant's guilt or his participation in the crime or any other crime.
"You will see later in this case, well, I believe you will probably see this photo array which is commonly called mug shots in the singular or plural, so don't read anything into the word mug shot. It has no significance of guilt or any indication of participation by this defendant in any criminal activity here or anyplace else."
We agree with the trial justice that this reference did not warrant granting a motion for mistrial. See State v. Gardiner, 636 A.2d 710, 718 (R.I. 1994) (holding that the trial justice's refusal to pass the case was not an abuse of discretion because the jury instructions "cured" the improper questioning).
The defendant again moved for a mistrial when Ms. Prefontaine, in the course of her testimony, said
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Rhode Island DUI Attorneys
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