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Pence v. State3/27/2002
s the jury to disregard it, the cautionary instruction is presumed to cure any error which may have been committed." A brief remark, even if it is an improper comment on a defendant's silence, "does not necessarily constitute reversible error if it is followed by an appropriate curative instruction to the jury." In Pence's case, in addition to Judge Wood's sua sponte curative instruction, the jury was given two similar instructions: one before evidence was heard and one after the evidence closed. We ordinarily presume that a jury follows the trial court's instructions.
Moreover, as set out in Noah v. State, whether to grant a mistrial is within the sound discretion of the trial court, and the trial court's decision will not be reversed on appeal unless it is clearly unreasonable. When tainted evidence is admitted, the trial court must decide whether a jury instruction will cure the evidence's possible prejudicial impact. In cases where the inadmissible evidence implicates a defendant's exercise of a substantive constitutional right, the trial court also must determine whether the improper testimony was harmless beyond a reasonable doubt. In this case, Judge Wood expressly considered the statement's possible prejudicial impact in light of the prompt curative instruction before concluding that a mistrial was not warranted.
Pence's defense in this case was that he was not operating the vehicle when Blajeski drove up. However, as explained above, Blajeski drove up, he saw Pence sitting in the driver's seat, saw him leave the truck out of the driver's door, and found keys on the driver's seat. The truck belonged to Pence, and Pence admitted during the DWI processing that he had been trying to get the truck out of the ditch.
Considering the evidence introduced showing that Pence was operating the truck in an effort to get it out of the ditch, we believe that Judge Wood's prompt cautionary instruction and the related jury instructions cured any potential prejudicial impact resulting from Blajeski's brief remark. Accordingly, we conclude that Judge Wood did not abuse his discretion when he denied Pence's motion for a mistrial.
Conclusion
The district court's decision is AFFIRMED.
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