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Lawrence v. State5/5/2000
mproperly elicited testimony about the defendant's prior convictions, in violation of the exclusionary rule, and it held that a curative instruction was not sufficient to overcome the prejudice in that case. The Sparks opinion stated:
" his Court cannot condone a prosecutor's attempt to elicit testimony about a defendant's prior convictions in violation of the general exclusionary rule against such evidence. Moreover, reported cases involving such improper questioning-- and a subsequent denial of the defendant's motion for a mistrial--are all too common .... Consequently, it appears to this Court that the current approach to these situations is inadequate insofar as it allows prosecutors a `free shot' at asking an improper question about a defendant's prior criminal record while providing little means to protect the defendant's right to a fair trial other than a mere corrective instruction to the jurors, which is administered only after the defendant has been exposed to the prejudice caused by the prosecutor's questioning." 730 So. 2d at 115. (Emphasis original.) (Citations omitted.)
In Sparks, the defendant was on trial for charges of driving under the influence . The prosecutor asked him on cross-examination if he recalled having been convicted of DUI on a previous occasion. This Court found the question to be so highly prejudicial that it could not be corrected with a mere corrective instruction to the jury. 730 So. 2d at 116.
" mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice." Ex parte Thomas, 625 So. 2d 1156, 1157 (Ala. 1993). A mistrial is an extreme measure that should be taken only when the prejudice cannot be eradicated by instructions or other curative actions of the trial court. Nix v. State, 370 So. 2d 1115, 1117 (Ala. Crim. App.), cert. denied, 370 So. 2d 1119 (Ala. 1979). If an error can be effectively cured by an instruction, a mistrial is too drastic a remedy and is properly denied. Thompson v. State, 503 So. 2d 871, 877 (Ala. Crim. App. 1986).
The questions regarding Lawrence's prior bad acts were prejudicial, especially considering that these acts had not led to convictions. However, this case is distinguishable from Sparks because, in that case, the evidence of prior bad acts involved the same crime for which Sparks was on trial. This case is different from Sparks, in that the questions regarding Lawrence's prior acts of negotiating worthless instruments did not have the effect of suggesting that she committed the charged offense. While the questions regarding the prior acts were prejudicial, in that they suggested motive and affected Lawrence's credibility, the evidence they called for would have been cumulative as to the evidence regarding nine convictions for negotiating worthless checks, evidence that was properly admitted. A trial court's ruling on a motion for a mistrial will be reversed only upon "a clear showing of abuse of discretion." Ex parte Jefferson, 473 So. 2d 1110, 1114 (Ala. 1985). Considering the nature of the prior-acts evidence and the court's prompt and thorough curative instruction given to the jury, we cannot say the trial court abused its discretion in denying Lawrence's motion for a mistrial.
AFFIRMED.
Maddox, Houston , Cook, See, Lyons, Brown, Johnstone, and England, JJ., concur.
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