The opinion
Judith Rogers, Judge, dissenting. As her fourth issue on appeal, appellant contends that the trial court erred in refusing to grant a mistrial based on an improper impeachment tactic employed by the deputy prosecutor. My disagreement with the majority view lies in its failure to acknowledge this clear and prejudicial error and in its attempt to excuse it on the basis of invited error.
On direct examination, appellant admitted that she had previously pled guilty to the misdemeanor offense of theft of property, or shoplifting. During the State’s cross-examination of appellant, the following transpired:
DEPUTY PROSECUTOR: And is it true — is it not true that you were convicted of the crime of theft of property in Pulaski County on October 18, 1994?
APPELLANT: I already said yes when Mr. Davis brought it out.
DEPUTY PROSECUTOR: Did you — did you provide this information to [the] Conway Public School System when you applied for your job?
APPELLANT: No, I didn’t. Everyone has skele-tons in a closet and things that they don’t want to come out, and Conway Public Schools didn’t ask me about it.
DEPUTY PROSECUTOR: Conway Public Schools didn’t ask you about it? Okay. So there wasn’t anything on your application for employment here —
DEFENSE COUNSEL: Your honor, that has nothing to do with this— that’s irrelevant. We’re talking about a misdemeanor.
THE COURT: Where are you going counselor?
DEPUTY PROSECUTOR: I’m questioning the credibility of this witness, your honor, that she would have filled out an application for employment and let mis — misled her employer as to her prior convictions for crime.
DEFENSE COUNSEL: And that’s garbage, your Honor. She’s allowed to impeach with a prior conviction only to the tune of asking her. The fact it’s a misdemeanor is not required on any application, and that’s just trying to prejudice the jury with garbage, and I — I resent it, and I think it’s improper. I am going to ask for a mistrial because of it. She knows it’s improper.
DEPUTY PROSECUTOR: State would object, your honor. There are no such grounds for a mistrial at this point.
THE COURT: I wasn’t even considering that. I was considering whether or not this is something that the jury could consider.
I think you have asked the question, the witness has answered it, and I think you need to move on.
DEPUTY PROSECUTOR: Okay. My last question was did she provide — I’m not sure what her answer was now. Did you provide this information to the Conway Public School System?
DEFENSE COUNSEL: I’m objecting, your honor. That’s not required to be asked. There’s no requirement that that be fisted on a misdemeanor, so it’s an improper question.
THE COURT: I think the witness has answered it. There was no requirement.
By the deputy prosecutor’s own admission, this fine of inquiry was pursued in an effort to impeach appellant’s credibility by implying that she had misled her employer by failing to divulge her previous conviction on her application for employment. Questions asked a defendant about his or her previous misconduct for the purpose of attacking credibility are governed by Rule 608(b) of the Arkansas Rules of Evidence. It provides:
Specific instances of the conduct of a witness for the purpose of attacking or supporting his credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning his character for truthfulness or untruthfulness.
In Gustafson v. State, 267 Ark. 278 , 590 S.W.2d 853 (1979), the supreme court observed that this rule marked a change in Arkansas law in that, before it was adopted, questioning was allowed concerning most any kind of misconduct. It was held that the rule was intended to restrict the use of such evidence, and recognizing the “highly prejudicial” nature of such information, the court set out the following three-part test governing its application: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness’s truthfulness. The latter prong of the test has since been taken to mean a lack of veracity rather than dishonesty in general. Rhodes v. State, 276 Ark. 203 , 634 S.W.2d 107 (1982); Urquhart v. State, 30 Ark. App. 63 , 782 S.W.2d 591 (1990).
Applying the test here, while it can be said that the prosecution’s question, implying deception, related to the issue of truthfulness, it can hardly be said that the first and second prongs of the test were satisfied. Good faith was utterly lacking since the record demonstrates that appellant was not asked to divulge this information. And, because she was not asked to disclose this conviction, her failure to do so does not reflect poorly on her capacity for truthfulness; therefore, the inquiry was wholly without probative value. The prosecutor’s effort to impeach appellant’s credibility by insinuating that she had deceived her employer was thus absolutely improper.
The prejudicial effect of this error cannot be minimized. The mere asking of this improper question elicited a prejudicial response from appellant about hiding “skeletons in a closet.” The question should never have been asked, and appellant should not have been placed in the position of defending her actions in response to an improper question. And, it cannot be said with confidence that the jury was not left with the impression that appellant had purposely hidden this information from her prospective employer, a school district no less, or that the jury did not accept the prosecution’s intimation that the conviction should have been disclosed and that the failure to do so was misleading and deceitful. Appellant’s credibility was vital to her defense, and it is clear that her credibility suffered as a result of the prosecution’s misguided efforts.
Nevertheless, the majority reasons that no harm resulted because of her response that she was not required to divulge this information. However, as indicated above, the prejudice to appellant was palpable. Moreover, our case law recognizes the prejudicial nature of this kind of inquiry and suggests that the prejudicial effect is not necessarily reduced by a negative answer. In Gustafson, supra, the court observed:
We were also mistaken in Cox if we left the impression that a negative answer to an improper question results in no prejudicial error. There is no doubt that such a question harms a defendant’s case. When it is proper, about a type of misconduct that is relevant, it is allowed only because it is relevant to the determination of the credibility of the defendant. But to say that a negative answer always removes the prejudice in every case goes too far.
Gustafson v. State, 267 Ark. at 291 , 590 S.W.2d at 860 . “The prejudicial effect of such questions is not remedied by the fact that they were answered in the negative. As was made clear in Gustaf-son, ‘There is no doubt that such a question harms a defendant’s case.’” Cameron v. State, 272 Ark. 282, 286 , 613 S.W.2d 593, 595 (1981). “When answered negatively, no evidence of misconduct has been produced, but a prejudicial question may have been asked.” Spicer v. State, 2 Ark. App. 325, 328 , 621 S.W.2d 235, 237 (1981). “Since specific acts of misconduct may not be proved by extrinsic evidence, Gustafson teaches that a prosecutor hazards a reversal when he asks about prior misconduct and does not get an answer of probative value as to the witness’s truthfulness or untruthfulness.” Summerlin v. State, 7 Ark. App. 10, 14 , 643 S.W.2d 582, 585 (1982). Given the inherent potential for prejudice flowing from this type of impeachment, the Gustafson court even issued a warning that prosecutors would be well advised to procure a ruling from the trial court prior to launching into this sort of inquiry before a jury. Based on the facts of this case and the foregoing authorities, I believe that the trial court abused its discretion in failing to grant appellant’s motion for a mistrial.
Finally, I disagree with the majority’s view that appellant somehow “opened the door” to the question by discussing the conviction on direct examination. True, it is generally recognized that otherwise inadmissible testimony may be offered when one party has opened the door for another party to offer it. Larimore v. State, 317 Ark. 111 , 877 S.W.2d 570 (1994). This is referred to as “fighting fire with fire,” and it is permitted when a defendant has been untruthful about a former crime or has brought otherwise inadmissible character evidence which the State may then rebut. Id. But this case does not involve such an act by appellant. Under the rules of evidence, appellant was not required to reveal a prior misdemeanor conviction for theft of property; nor could the State have brought it up on cross-examination. Ark. R. Evid. 608; Ark. R. Evid. 609. Her confession of it was thus a fortuitous occurrence for the State. But by admitting it, she said nothing untruthful and made no misrepresentation for the State to rebut. There was simply no fire to be extinguished by her admission, and it makes no sense to conclude that her admission of it provided the State with an opportunity to engage in improper impeachment. In fact, a similar conclusion was reached in Larimore v. State, supra, curiously enough the case cited by the majority to support its view.
I respectfully dissent.