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ELSER v. STATE11/13/2002
A jury sitting in the Crawford County Circuit Court convicted the appellant, Mark Allen Elser, of driving while intoxicated. The trial court sentenced him to twenty-four hours in the county jail, suspended his driver's license for ninety days, and ordered him to pay court costs and a $450 fine. On appeal, appellant argues that the trial court erred in denying his motion for mistrial. In addition, he claims that the trial court erred in refusing to allow him to present exculpatory evidence. We agree with appellant's second argument and reverse and remand.
At approximately 3:30 a.m. on October 3, 2000, Officer Cletus Hudson of the Van Buren Police Department noticed appellant's truck parked on the shoulder of a ramp leading onto the eastbound lane of Interstate 540. The truck's motor was running and, in Officer Hudson's estimation, was not parked a safe distance from the fog line. The officer approached the truck and, finding appellant asleep behind the wheel, knocked on the window several times. Appellant eventually awoke and opened the door of the truck. Officer Hudson testified that he smelled a strong odor of intoxicants. The officer also testified that appellant was unsteady on his feet, slurred his speech, failed two field-sobriety tests, and failed a portable breathalyzer test.
The BAC Datamaster at the Crawford County Jail measured appellant's blood-alcohol content at .10. Appellant subsequently pleaded no contest in the Van Buren Municipal Court to driving while intoxicated. He appealed to the circuit court, and a jury convicted him of driving while intoxicated, first offense.
For appellant's first point on appeal, he claims that the trial court erred by denying his motion for mistrial after the prosecutor referred to his anticipated testimony during her opening statement. A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).
An allegedly improper comment on the defendant's failure to testify usually occurs during the prosecutor's closing argument, when the evidence is closed and the defendant's opportunity to testify has passed. See Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). Under those circumstances, a comment that draws attention to the defendant's failure to testify is improper because it creates the risk that the jury will surmise that the defendant's failure to testify was an admission of guilt. Id.
However, a comment during the prosecutor's opening statement is somewhat different. In addition to the risk that the jury will infer an admission of guilt from a defendant's subsequent failure to take the stand, there is also the risk that, in order to prevent the inference, the defendant will be compelled to testify. See Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974). Here, appellant ultimately testified, but the record reflects that the prosecutor's reference to appellant's anticipated testimony did not compel him to testify. In fact, questions posed by defense counsel during voir dire suggest that appellant had decided to testify prior to the beginning of his trial:
Defense Counsel: This man's gonna testify, this officer sitting right here next to me about what happened in this case, I don't anticipate there are any grandiose differences in their testimony, but I suspect there will be some differenc
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