Peters v. State

• Decision Date: 06 May 2004
• Docket Number: No. CR 03-832.,CR 03-832.
• Citation: 166 S.W.3d 34
• Parties: Daniel Nobice PETERS v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 34

166 S.W.3d 34

Daniel Nobice PETERS v. STATE of Arkansas.

No. CR 03-832.

Supreme Court of Arkansas.

May 6, 2004.

Phillip A. McGough, P.A., North Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Daniel Nobice Peters was convicted of kidnaping, rape, and residential burglary, and was given two life sentences for the kidnaping and rape convictions, and forty years' imprisonment for the residential burglary conviction. The sentences were ordered to be served consecutively. Mr. Peters appeals his convictions on the sole ground that a statement by a State's witness regarding a missed polygraph appointment was highly prejudicial and the trial court erred in not granting a mistrial. We disagree and affirm the convictions. Because Mr. Peters was sentenced to life in prison, we have jurisdiction over this appeal pursuant to Ark. Sup.Ct. R. 1-2(a)(2).

At trial, the prosecution's first witness was Chief Robert Drake of the Stamps Police Department. Chief Drake testified about how the victim's car, which had been stolen by her assailant, was found in Louisiana approximately eighteen months after the crimes occurred. Police had questioned a witness, who identified Mr. Peters from a photo lineup as the man who was in possession of the victim's car outside a Louisiana night club. During his testimony, the following colloquy took place between the prosecutor and Chief Drake:

Q. I ask you, did an initial interview took [sic] place and Mr. Jones questioned [Mr. Peters] about a stolen car?

A. Yes, sir.

Q. And I want to know what actually was asked about the car that was recovered in Louisiana and if he had any statements to make about that?

A. His statement was that he didn't rape Ms. Hardeman.

Q. So, he's asked about a stolen car, and his first response was, "I didn't rape Ms. Hardeman"?

A. Yes.

[Defense counsel]:

Wait a minute. I object. And again, that's not what he said. He said that was his statement. He came back and said his first statement was. He's in effect testifying for the chief there.

Q. What was his response to finding the car stolen and recovered in Louisiana?

A. "I didn't rape Ms. Hardeman."

Q. Was that responsive to the question asked?

A. No.

Q. Now, did Mr. Peters at that time offer anything to you [to show] whether he may be innocent of this rape charge?

A. No.

Q. He didn't offer you any blood?

A. Excuse me?

Q. He didn't offer to give you blood?

A. Oh, yes, sir. After Mr. Jones and him talked a little bit more, uh, he, I had already had a polygraph set up for him on February 14th, and he did not show for it, so . . .

[Defense counsel]:

I object. If the Court please, may we approach the bench?

At this point, defense counsel moved for a mistrial, and a lengthy discussion took place between the court and attorneys from both sides. Defense counsel argued that, when the polygraph reference was immediately preceded by the statement that Mr. Peters had denied raping Ms. Hardeman, and it was coupled with the fact that Mr. Peters missed the scheduled polygraph appointment, the only conclusion the jury could possibly come to was that Mr. Peters missed the appointment because he was guilty and was afraid of failing the polygraph.

Extensive discussions on the motion for mistrial took place between the court and counsel that afternoon and the next morning. The trial court admonished the jury that polygraph tests are inadmissible and should not be considered for any reason. Then the trial court, without objection, polled the jurors individually in chambers, and each juror responded that he or she had drawn no inference from Chief Drake's statements. The trial court instructed the jury to disregard the statement about the scheduled polygraph test, and denied the motion for mistrial.

During the trial, the victim was unable to identify Mr. Peters as her attacker. However, another prosecution witness, Ms. LaCondra Stephens, made an in-court identification of Mr. Peters as the man who had been in possession of the victim's car in Louisiana. Forensic DNA evidence matched Mr. Peters's DNA to semen on a vaginal swab taken during the victim's rape exam. Furthermore, the jury heard testimony that the probability of a random individual from the black population having the same genetic markers as those identified in the DNA sample on the vaginal swab were approximately 1 in 3 billion. The jury returned verdicts of guilty on all charges.

Mr. Peters's argument on appeal mirrors the argument made at trial. Specifically, he contends that a mistrial was warranted because, confronted with Chief Drake's statement that Mr. Peters missed his scheduled polygraph test, the jury could have only come to the conclusion that Mr. Peters was afraid the polygraph test would show he was guilty. Mr. Peters contends that testimony about polygraph tests is inadmissible because polygraphs are considered unreliable and prejudicial. Chief Drake was the State's first witness; thus, Mr. Peters contends the prejudice caused by the statement about the polygraph was substantial in that it colored the remainder of the trial.

Mr. Peters further contends the long discussions about the motion for mistrial that were held out of the hearing of the jury, and the polling of the jury, even more impressed upon the jury's minds the importance of Chief Drake's statement. Mr. Peters concludes that the prejudicial nature of the statement coupled with all the attention given it so prejudiced the jury that he should have been granted a mistrial.

A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003); Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Walker v. State, supra; Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).¹

The results of polygraph examinations are inadmissible in all Arkansas courts. See Ark.Code Ann. § 12-12-704 (Repl.2003). However, in the instant case, though information regarding a missed polygraph appointment was before the jury, there was no mention of any polygraph result. Therefore, we turn our focus to whether the mention of the missed polygraph appointment itself was prejudicial enough to warrant a mistrial.

Several times, we have dealt with the denial of a request for mistrial when information about a polygraph test has deliberately or inadvertently been elicited from a witness in a jury trial. In Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980), we stated that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, normally constitutes prejudicial error. Nonetheless, we held the trial court did not err in denying Van Cleave's motion for mistrial, because the defense had not made a timely objection when reference had been made to a witness's polygraph test.

In Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981), we held that it was an abuse of discretion to deny a motion for mistrial when a witness referred repeatedly to her polygraph exams, in an attempt to bolster her assertion that she had been truthful from the time she took the polygraph. The defense timely objected to each reference, but the trial court refused to entertain the objections. Id.

However, in Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990), we concluded that our holdings in Van Cleave, supra, and Roleson, supra, were overbroad:

[We] take this opportunity to clarify our position on references to polygraph examinations. While neither the results of a lie detector examination nor testimony that indirectly or inferentially apprises a jury of the results of a lie detector examination are admissible, the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. See Johnson v. Florida, [166 So.2d 798 (Fla.1964)]. [Emphasis in original.]

Consequently, a witness's veracity cannot be bolstered or discredited by proof of his taking or refusing a lie detector test, and evidence of a witness's willingness or reluctance to be examined is also prejudicial and inadmissible to prove consciousness of innocence or of guilt. Id. [Emphasis added.}

Wingfield v. State, 303 Ark. at 296-97, 796 S.W.2d at 576.

We referred to Wingfield recently, in Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000), when we held that a trial court did not abuse its discretion by denying a mistrial:

Under the circumstances, Appellant has failed to demonstrate that the trial court abused its discretion by denying the mistrial. The witness's remarks were spontaneous and obviously not solicited by the prosecution. More importantly, there was no prejudicial inference from the witness's remarks, as it was not evident from her testimony how Appellant scored on the test. This court has held that "the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences [that] might be raised as to the result are not prejudicial."

Id. at 177-78, 33 S.W.3d at 127 (citing Wingfield v. State, supra) (emphasis added).

After Chief Drake's referral to the missed polygraph appointment, Mr. Peters moved for a mistrial, stating that the statement was inadmissible, non-responsive, and so prejudicial that it could not be corrected. The prosecutor agreed that the statement was non-responsive, but asked the trial court to cure the error with a cautionary instruction to the jury. The prosecutor pointed out...