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Kidwell v. State2/23/2005
de a motion for a mistrial. The trial court denied the motion because the statements "were not prejudicial at this point and ... damage was done." The judge also said, "I think probably the wiser thing is simply to ignore it and not make a big deal to the jury about it and go on from here and let it go at that." At the end of the State's case in chief and the close of all the evidence, the trial court also denied Kidwell's renewed motions for mistrial.
For his argument, Kidwell relies on Arkansas Rule of Criminal Procedure 17.1, which states that the prosecuting attorney should disclose to the defense counsel, upon proper request, the substance of any oral statements made by the defendant. Ark. R. Crim. P. 17.1(a)(ii). The trial judge stated that the best thing to do would be to ignore the deputy's statement so that the jury would not focus their attention on the statement. Kidwell never requested a curative instruction after the trial court denied his motion for mistrial. It is a defendant's duty to request a curative instruction, and an appellate court will not determine that the trial court's decision to deny a mistrial motion was an abuse of discretion where an admonition to the jury could have cured the situation but no such admonition was requested. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). The trial judge agreed with Kidwell, ruled that the statement was inadmissible, and offered to tell the jury to disregard the testimony. Kidwell's attorney never requested a curative instruction before or after his motion for a mistrial. An admonition to the jury could have cured the situation, but it was Kidwell's duty to ask for it. Kidwell never followed up on his motion to strike the statements. Accordingly, the trial court did not abuse its discretion in denying Kidwell's motion for mistrial.
Affirmed.
Robbins and Griffen, JJ., agree.
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