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State v. Werner6/5/2003
that at one point she was living with Werner's sister while defendant was in jail. The trial justice denied the motion and gave a cautionary instruction.
"All right, ladies and gentlemen, you just heard Ms. Prefontaine make an answer that she opened this particular box when she was living with the defendant's sister and he was in jail.
"Now, that's an improper reference because it may lead you to believe that because he's in jail he may have done something else untoward or other. I don't know if he was in jail. If he was in jail, it's none of our concern whatsoever. You are to judge this case on its merits or lack of its merits according to the instructions that I give you. So I'm going to instruct you now to disregard any notion that this defendant may or may not have been in jail, what he may have been in there for, just put it out of your mind. It has absolutely no bearing on the guilt or innocence of this defendant in this case."
We are of the opinion that this cautionary instruction was sufficient to dispel any potentially inflammatory effect upon the jurors. We cannot assume in the light of the totality of the testimony in this case that a reference to jail would have so inflamed the jurors as to prevent their impartial examination of the evidence in the case. State v. Brown, 522 A.2d 208, 210-11 (R.I. 1987). The defendant also argues that he was entitled to the declaration of a mistrial when witness Gammon sought to change his testimony at trial from that given at a voir dire examination in which he said that he saw a gun similar to the shotgun in evidence in Werner's apartment on the day of the shooting. At trial he testified that the gun he saw was not the same as the gun introduced into evidence. Counsel for the state called Gammon's attention to the testimony he previously had given at the voir dire examination. She went on to ask Gammon whether he had received any threats relating to his testimony. He replied that he had not. At this point, defense counsel again moved for a mistrial on the ground of significant prejudice. The trial justice denied the motion and gave the following cautionary instruction:
"The answer may stand. There's been no evidence of any threats in this case or any coercion by anybody against any witness whether it's a State or defense witness or anything, so I'm going to instruct you to disregard that question. The answer was no anyway. It has nothing to do with this case nor have there been threats or anything like that in this matter."
The trial justice commented that the prosecutor's question was "imprudent," but he concluded that any prejudice could be cured by the foregoing instruction. This holding was in accordance with the principles enunciated in Brown, wherein we observed that a mistrial should be granted only if the damage caused by a question or prosecutorial statement is inexpiable. Brown, 522 A.2d at 210. In the case at bar, we agree that the prosecutor's question, which elicited a negative answer, did not create incurable prejudice or inflame the jurors to a point where a prompt curative instruction would not be effective. See also United States v. Mealey, 851 F.2d 890, 902-03 (7th Cir. 1988).
We also have considered defendant's argument that these four instances considered together created a context of fundamental unfairness and demands reversal. We respectfully disagree with this argument, though we recognize the principles enunciated in State v. Pepper, 103 R.I. 310, 318, 237 A.2d 330, 335 (1968) (holding that "the cumulative effect of the improper evidence is of such a character that the defendant was prejudiced thereby to such an extent that only a new trial can cure it"). We also recogniz
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