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State v. Eubanks4/22/1999
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A. He didn't shoot him, he was shooting at him. (Tr. 383-384.)
At that point, the defense objected to the testimony and requested a mistrial. After hearing argument on the motion, the trial court denied the defense's request for a mistrial and gave a curative instruction to the jury. The testimony was stricken from the record.
The decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 182. This is because the trial court is in the best position to determine whether a mistrial is needed. State v. Glover (1988), 35 Ohio St.3d 18, 19. In order to demonstrate that a trial court has abused its discretion in denying a motion for a mistrial, a defendant must show that the trial court's decision was arbitrary, unreasonable, or unconscionable. State v. Nichols (1993), 85 Ohio App.3d 65, 69. A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused are adversely affected. Id. Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127.
Evid.R. 404(B) prohibits the admission of evidence of other crimes, wrongs, or acts to prove the character of a defendant. This rule of evidence is not applicable if the objectionable statements are not admitted into evidence. State v. Triplett (Nov. 26, 1997), Cuyahoga App. No. 71921, unreported.
The statements made by Alisha Carpenter raise the possibility of unfair prejudice to appellant. Appellant argues that the knowledge he previously fired a weapon in the house and at another person negated his defense that the killing of his wife was an isolated incident stemming from extreme provocation.
The trial court did issue curative instructions to the jury to disregard the statements by Alisha Carpenter. The jury was instructed not to consider the information for any purpose. Curative instructions are presumed to be effective. State v. Zuern (1987), 32 Ohio St.3d 56. An appellate court generally will presume that a jury followed a trial court's curative instruction. State v. Ferguson (1983), 5 Ohio St.3d 160, 163.
Although the prosecutor clearly should have ceased this line of questioning after the first non-responsive answer by Alisha Carpenter, the statements alone were not so prejudicial to appellant as to deny him a fair trial. Alisha Carpenter did not indicate that any of the earlier incidents were directed specifically at her mother. There was no evidence appellant injured anyone by firing a pistol. This isolated evidence did not deny appellant a fair trial when considered against the overwhelming evidence that appellant intentionally shot to death Lanita Eubanks without sufficient provocation.
Appellant's second assignment of error is overruled.
IV.
In his third assignment of error, appellant contends the trial court committed plain error by failing to redact certain portions of appellant's confession. Appellant requested the trial court redact parts of his taped-recorded confession following the testimony of Alisha Carpenter already discussed in the previous assignment of error.
The admission or exclusion of evidence lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. State v. Sage (1987), 31 Ohio St.3d 173. An abuse of discretion connotes an attitude by the trial court that was arbitrary, unreasonable, or unconscionable. State v. Long (1978), 53 Ohio St.2d 91, 98. Furthermore, a conviction will no
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