King v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HAYS
• Citation: King v. State, 317 Ark. 293, 877 S.W.2d 583 (Ark. 1994)
• Decision Date: 13 June 1994
• Docket Number: No. CR,CR
• Parties: Daniel Lee KING, Appellant, v. STATE of Arkansas, Appellee. 93-1171.

Page 583

877 S.W.2d 583

317 Ark. 293

Daniel Lee KING, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-1171.

Supreme Court of Arkansas.

June 13, 1994.

Larry Dean Kissee, Ash Flat, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Daniel Lee King, appellant, was convicted of four counts of rape based on sexual relations he had with his thirteen-year-old stepdaughter. King raises five points for appeal but none is persuasive.

On January 27, 1993, King met voluntarily with a case-worker for the Arkansas Department of Human Services to discuss allegations that he had sexually abused his thirteen-year-old stepdaughter. He admitted to having relations with the stepdaughter and the case-worker referred the matter to the Izard County authorities. King was interrogated by the Izard County Sheriff's Department and he again admitted to a sexual relationship with the victim in a tape recorded interview. The next day King was arrested on one count of rape.

King was arraigned and trial was set for April 12, 1993. The issue of mental disease or defect was raised and the trial court ordered a mental evaluation by a local psychologist. On April 7, 1993, an amended information was filed charging King with three additional counts of rape. Shortly thereafter the trial court determined King was fit to proceed. At trial King was found guilty on all four counts of rape and sentenced to twenty-five years on each count, consecutively. King appeals from that conviction.

Motion For Mistrial

King first argues the trial court erred in failing to grant a mistrial for the following remarks made by the prosecutor in closing argument:

This is the type of message that you can send out here to these folks who might even have the slightest idea that they wanted to go in there and molest their little stepdaughter or the little girl next door, your grandbaby, your daughter, or whoever it might be. [Our emphasis.]

The defense objected on the basis that the "golden rule" prohibited the prosecutor from referring to "your grandbaby or your children." The trial court sustained the objection and while it refused the defense's request for a mistrial, it did admonish the jury:

Okay, the objection would be sustained and the jury would be admonished not to place themselves in the position of the victim.

The prosecutor resumed his summation and said:

Ladies and gentlemen, I'm not asking you to place yourself, that's not the point to what I'm saying. You know what I'm saying, and I respectfully ask you to return a verdict of guilty on each count and to assess an appropriate sentence to follow that verdict.

On appeal King argues it was error for the trial court not to order a mistrial.

A mistrial is a drastic remedy to which the court should resort only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). It should only be ordered when the fundamental fairness of the trial itself has been manifestly affected. Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993). The trial court has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the complaining party. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987); Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988).

The "golden rule" argument suggests to jurors that they place themselves in the position of a party or victim. See Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989). The golden rule argument is impermissible because it tends to subvert the objectivity of the jury. Mueller v. Sigmond, 486 N.W.2d 841 (Mn.1992). It is seen as an attempt to dissuade the jurors from their duty to weigh the evidence and instead to view the case from the standpoint of a litigant or party. Metropolitan Life Ins. Co. v. Moss, 109 S.W.2d 1035 (Tx.1937). The rule is applied to criminal cases as well as civil cases. See Lycans v. Com. of Ky, 562 S.W.2d 303 (1978).

King points to an earlier case where we held the golden rule warranted a mistrial. Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958). In that case the prosecutor stated in closing argument on a rape charge:

Now gentlemen, if you turn this man loose, go home and tell your daughters that you made it really hard for them today because you turned a man loose that can run over them and take anything from them he wants to, and then come up here and tell a cock and bull story and get away with it.

In response to an objection, the trial court told the jury:

As I have told the jury before, you are not to consider the case on the arguments of counsels but on the law and the evidence introduced.

The prosecutor had also made remarks in his opening statement which were in the nature of testifying to the jury. We held the remarks required reversal:

The appeal to the jury to put themselves in plaintiff's place was improper. One doing that would be no fairer judge of the case than would plaintiff herself.... Here the mild rebuke of the court was not sufficient to remove from the minds of the jury, the damage done.

We believe Adams is distinguishable. In Adams there was only a general admonition to the jury, whereas here, the trial court addressed the specific nature of the objection, i.e., that the jury was not to put itself in the position of the victim. In addition, the prosecutor himself addressed the jury and withdrew the objectionable comment and the trial court gave the added standard instruction that remarks made during arguments by the attorneys were not evidence and should be disregarded. We also note that in Adams the prosecutor had made other comments at an earlier point in trial which this court also found improper. We find no abuse of discretion in the trial court's denial of a mistrial on the basis of the prosecutor's remark.

Defense Of Mental Disease Or Defect

Appellant contends the trial court failed to substantially comply with Ark.Code Ann. § 5-2-305 (1987), which outlines the procedures to be followed when the defense of mental disease or defect is raised. He argues that while a psychologist was appointed to evaluate his mental condition, Section (b)(1)(A) requires an evaluation by a psychiatrist. That section reads:

(b)(1) Upon suspension of further proceedings in the prosecution, the court shall enter an order:

(A) Directing that the defendant undergo examination and observation by one or more psychiatrists at a local regional mental health center. A licensed psychologist at a mental health center who has successfully completed a forensic certification course approved by the Department of Human Services may also be directed to conduct an examination on mental condition;

The trial court ordered Dr. Sam Boyd, a certified forensic psychologist with the Psychological Clinic in Conway, Arkansas, to interview and evaluate appellant. Appellant argues that under Section (b)(1)(A) an examination by a psychiatrist is required because the statute is not in the disjunctive and does not offer an alternative between a psychiatrist and a psychologist.

We find no objection below on this point, and note that in Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991), we held the appointment of a psychiatrist was not required under § 5-2-305. We noted that under Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983), substantial compliance with this statute was sufficient and that an evaluation by a psychologist was enough.

Appellant also maintains his evaluation under the statute was not in compliance with Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), because he was denied a request for an independent psychological examination. We do not equate the argument with that made in Starr v. A.L. Lockhart, 23 F.3d 1280 (8th Cir.1994). ¹ In Starr the defendant, who was appealing from a death sentence, was mentally retarded, requested assistance under Ake to "assist in evaluation, preparation and presentation of the defense." The court found that under Ake the defendant should receive the help of the expert to function as a "basic tool" in defending his case. Here, appellant's request was not for help by defense preparation, but rather, for a second evaluation by a psychiatrist. We have held numerous times that an evaluation as was done here does not require a second opinion. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988). Appellant has referred to no facts nor made any argument that would distinguish this case from those such as Branscomb and See.

Appellant urges that under § 5-2-305(a)(2) the trial court is obliged to suspend further proceedings when fitness to proceed has been put into question. The point was not raised below and is waived on appeal.

Motion For A Continuance

Appellant contends the trial court erred in denying his motion for continuance on the morning of trial. Appellant claims his mental evaluation was not filed until the day of trial and that his attorney's first appearance with him was only twelve days before trial. These contentions are not supported by the record. Counsel first consulted with appellant on March 1 and the mental evaluation was given to counsel on April 9. Moreover, at an in-chambers hearing on the motion for continuance, counsel made no argument that he needed more time to respond to the mental evaluation, or to obtain evidence, he simply asked the defendant whether he felt a continuance was needed:

Q: Now, Daniel, I've been over and visited with you on, I don't remember exactly how many occasions, four or...