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State v. Reid7/20/2001
to remain silent after his or her arrest and that, under most circumstances, the prosecutor may not comment at trial concerning the defendant's invocation of that right. The State also admits that the prosecutor's question was improper. However, the State contends that the matter, taken in its entirety, amounts to mere harmless error and, therefore, a mistrial is not necessary. In support, the State argues that the context within which the comment was made was such that a jury would not necessarily draw an inference of guilt from it. In addition, the State asserts that the prosecutor did not compound his error by referring to Defendant's silence a second time in its closing argument. However, the transcripts of the parties' closing arguments are not included in the record on appeal. Lastly, the State suggests that the curative instruction given by the trial court operated to remove the taint left by its improper remarks.
During the direct examination of Detective Steve Bennett regarding his first encounter with Defendant after his arrest, the following colloquy occurred:
Prosecutor:Detective Bennett, did you attempt to get a statement at the time from Mr. Reid?
Bennett: Yes.
Prosecutor: Did he cooperate with you?
Bennett: No, sir.
Prosecutor: Excuse me?
Bennett: No.
At this point, Defendant's counsel objected and requested permission to approach the bench. The jury was excused, and a bench conference was held during which Defendant requested that the judge declare a mistrial on the ground that the prosecutor improperly solicited commentary concerning Defendant's decision to exercise his constitutional right to remain silent. Following a discussion and arguments by counsel for both sides, the trial judge denied Defendant's motion for a mistrial, but sustained his objection to any further questions of a similar nature by the prosecutor. The trial judge also gave the following curative instruction to the jury when it returned:
Ladies and gentlemen, before you stepped out, there had been a question asked pertaining to whether or not this particular defendant gave any statements at the time of the arrest to the officer. There was an objection raised. I have sustained the objection by defense counsel as to that entire line of questioning, and I would advise you, ladies and gentlemen, everyone in our nation has an absolute right not to ever have to give any statement to any officer. It's called the Fifth Amendment of the United States Constitution. We have an equal amendment in our own state constitution. No one is ever compelled to have to give a statement to any officer. I have sustained the objection and I would urge you to strike any reference to that as far as the answer the officer gave to that particular question. And I would sustain any objection on any continued questioning along that line.
The decision of whether to grant a mistrial is within the sound discretion of the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). This Court will not disturb that decision absent a finding of an abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). "Generally, a mistrial will be declared in a criminal case only when there is a `manifest necessity' requiring such action by the trial judge." State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). "The purpose . . . is to correct damage done to the judicial process when some event has occurred which precludes an impartial verdict." State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). In determining whether a "manifest necessity exists, "`no abstract formula should be mechanically
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