State v. Jones6/15/2000
bused its discretion by allowing David Nordstrom to testify (1) about Jones's status as a paroled felon, (2) that following the murders, Jones borrowed duct tape to use in a subsequent robbery, and (3) that Jones was subsequently incarcerated in Phoenix. Jones argues that danger of unfair prejudice outweighed the probative value of these statements.
First, through unsolicited testimony, David Nordstrom mentioned on the stand that after Jones dyed his hair brown, he asked David for a roll of duct tape for use in another robbery. Shortly thereafter, when asked why he refused to return Jones's telephone calls, David responded that he knew Jones was in jail and had no desire to call him there. After David made several similar statements, the defense moved for a mistrial.
When unsolicited prejudicial testimony has been admitted, the trial court must decide whether the remarks call attention to information that the jurors would not be justified in considering for their verdict, and whether the jurors in a particular case were influenced by the remarks. See State v. Stuard, 176 Ariz. 589, 601, 863 P.2d 881, 893 (1993). When the witness unexpectedly volunteers information, the trial court must decide whether a remedy short of mistrial will cure the error. See State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). Absent an abuse of discretion, we will not overturn the trial court's denial of a motion for mistrial. See id. The trial judge's discretion is broad, see State v. Bailey, 160 Ariz. 277, 279, 772 P.2d 1130, 1132 (1989), because he is in the best position to determine whether the evidence will actually affect the outcome of the trial. See State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983). In this case, the comments did not create undue prejudice, and the trial court did not abuse its discretion.
Defense counsel did not request any curative instruction, because he felt it would only draw attention to the remarks. The court refused to grant the motion for mistrial, finding that David did not testify that a robbery actually occurred, and that the jury probably would assume Jones was in jail for the immediate crimes. Furthermore, the prosecutor avowed that the remarks were both unexpected and unsolicited. The prosecutor informed the court that David had been fully instructed about the areas he was not permitted to discuss under the in limine rulings. For these reasons, the trial court concluded that a limiting instruction would cure any prejudice. The jury was instructed:
Ladies and gentlemen, references have been made in the testimony as to other alleged criminal acts by the defendant unrelated to the charges against him in this trial. You are reminded that the defendant is not on trial for any such acts, if in fact they occurred. You must disregard this testimony and you must not use it as proof that the defendant is of bad character and therefore likely to have committed the crimes with which he is charged. (R.T. 6/23/98, at 143-44.)
During redirect, David responded to a question with the statement that his brother Scott and Jones were both convicted felons. Only when the counsel later approached the bench to consider questions submitted by the jury, however, did the defense renew its motion for a mistrial. Once again, the trial court determined that the error could be cured through a limiting instruction, and repeated the instruction set out above.
Arizona has long recognized that testimony about prior bad acts does not necessarily provide grounds for reversal. See, e.g., State v. Stuard, 176 Ariz. 589, 601-02, 863 P.2d 881, 893-94 (1993) (holding that a trial judge's limiting instruction and striking of the offendin
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