# Walker v. State > Supreme Court of Arkansas · December 18, 1972 · 253 Ark. 676 URL: https://www.frixlaw.com/law-library/cases/9763808 ## Case - **Full name:** Charles WALKER v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** December 18, 1972 - **Citations:** 253 Ark. 676; 488 S.W.2d 40; 1972 Ark. LEXIS 1530 - **Precedential status:** Published - **Opinion:** Concurring in part by Fogleman - **Judges:** Byrd, Fogleman - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763808 ## Opinion text John A. Fogleman, Justice, concurring in part; dissenting in part. I agree wholeheartedly with the majority’s treatment of the procedural question relating to determining the voluntariness of an accused’s statement, but I would affirm this conviction. The statement of the judge is so nearly correct, that I have reservations about its being properly classified as a comment on the evidence. The circuit judge clearly recognized that the jury must determine whether the statement admitted in evidence was actually made by the defendant and its “truthfulness.” In my view, this properly left for jury determination three questions, namely: (1) whether Walker made the statement received in evidence; (2) its credibility; and (3) the weight to be accorded it. All the circumstances surrounding the making of the statement would then have been admissible in evidence. There is no suggestion in the abstracts and briefs that any evidence on the subject was offered or excluded during the course of the trial. Assuming, however, without conceding, that the statements of the judge to the jury did constitute a comment on the evidence, the reversal of this judgment based upon the failure of the trial judge to declare a mistrial on that account is, in my opinion, totally unjustified. The widely and generally recognized rule is that the declaration of a mistrial is an extreme and drastic remedy, the granting or refusal of which lies in the sound judicial discretion of the trial judge, which should not be interfered with on appeal in the absence of an abuse of that discretion or manifest prejudice to the rights of the complaining party which cannot be otherwise removed. Perez v. State, 249 Ark. 1111 , 463 S.W. 2d 394 ; Parrott v. State, 246 Ark. 672 , 439 S.W. 2d 924 ; Jackson v. State, 245 Ark. 331 , 432 S.W. 2d 876 ; First National Bank of Springdale v. Hobbs, 248 Ark. 76 , 450 S.W. 2d 298 ; Schroeder v. Johnson, 234 Ark. 443 , 352 S.W. 2d 570 ; Kroger Company v. Burleson, 245 Ark. 371 , 432 S.W. 2d 847 ; 88 C.J.S. 96, Trial § 36b. We have said that the award of a mistrial as a means of correcting error should be the exception rather than the rule, and that it is unwarranted unless it is apparent that justice cannot be served by a continuation of the trial. First National Bank of Springdale v. Hobbs, supra; Back v. Duncan, 246 Ark. 494 , 438 S.W. 2d 690 . This principle has been applied to cases in which the motion was based upon alleged comments upon the evidence by the trial judge. Donahue v. Cowdrey, 246 Ark. 1028 , 440 S.W. 2d 773 . The trial court’s necessarily wide latitude of discretion in matters pertaining to the conduct of a trial should never be interfered wiijh on appeal unless abuse in its exercise is manifest. Perez v. State, supra; Petty v. State, 245 Ark. 808 , 434 S.W. 2d 602 ; Lewis v. State, 220 Ark. 914 , 251 S.W. 2d 490 ; Clements v. State, 199 Ark. 69 , 133 S.W. 2d 844 . We have, in many cases, clearly recognized that error in the trial proceedings is not reversible error unless it is so manifestly prejudicial to-3 defendant that a proper admonition would not have. afforded an adequate cure. Moore v. State, 251 Ark. 436 , 472 S.W. 2d 940 ; see also, Lin Manufacturing Company of Arkansas v. Courson, 246 Ark. 5 , 436 S.W. 2d 472 . This rule also applies to statements of the trial judge to the jury. Harper v. State, 249 Ark. 1013 , 462 S.W. 2d 847 ; Ford v. State, 222 Ark. 16 , 257 S.W. 2d 30 . Justice, in this case, would have clearly been served by an admonitory instruction to the jury, telling it to disregard the remarks of the trial judge, if the instructions later given by the trial court were not sufficient, under the existing circumstances, to cure any error. The court instructed specifically as to the jury’s consideration of the statement as follows: There is evidence in this case as to a statement made by the defendant. Before you can consider any evidence of any statement that the defendant may have made you must first find that he made it; second, that the statement he made is the same as you heard it from the witness stand; and third, that it is the truth. It is a question for you to say under the evidence, and the law as I have given it to you, whether or not that statement is true and if true, what weight should be given to it in determining your verdict in the case. The only objection to this instruction registered by appellant was that the instruction did not permit the jury to pass on the voluntariness of the confession and offered the following alternate: There is evidence here that the defendant made a confession. Before you can consider any confession as evidence, you must find: 1. That he did make a confession. 2. That the confession he did make was the one you heard on the witness stand. 3. That when he made it he told the truth. 4. That it was voluntarily made. In order for a confession to be voluntary you must find that it was made without hope of reward or fear of punishment. The basis of the statement that a confession must be voluntary is that the Constitution of the State says that no person shall ever be compelled to give evidence against himself. The offer was refused, but the court also instructed the jury that it was the sole judge of the credibility of witnesses and of the weight to be given to the testimony and that the court had nothing to do with these matters. An instruction in the form of AMI 101(e) would probably have rendered any error in the court’s remarks harmless. Certainly, the judge would have given an even stronger admonition to the jury to disregard his remarks in considering the statement if it had been requested. In cases relating to improper remarks of counsel, only those exceptional ones, involving statements so flagrantly prejudicial that this court can say that efforts of the trial judge to eradicate their evil effects by instructing the jury to disregard them would be unavailing and that a new trial would be the only means of freeing the trial of prejudice, should be reversed for abuse of the trial court’s discretion. Schroeder v. Johnson, supra; Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256 , 85 S.W. 428 . I do not see why the same should not be said in cases involving remarks of the circuit judge. We have in many cases recognized that an instruction to the jury to disregard a matter which has erroneously come to its attention is sufficient to cure any error, and that we must find an abuse of the court’s discretion in that respect before we will reverse. Parrott v. State, supra; Lewis v. State, supra. In Back v. Duncan. supra, we said: Counsel for the appellant cite our rule that an error is presumed to be prejudicial unless the contrary affirmatively appears. * * * In the nature of things, however, that rule does not apply when the trial judge has undertaken to correct an apparent error by instructing the jury to disregard it. In that situation we accord much latitude to the trial court and reverse the judgment only if there is an abuse of discretion involving manifest prejudice to the complaining party. Briley v. White, 209 Ark. 941 , 193 S.W. 2d 326 (1946). Thus in effect we sustain the trial court unless prejudice affirmatively appears. I realize that the majority places great emphasis upon the prestigious position of the judge, and his resulting power to influence the jury to the prejudice of a party by his words or actions. I submit, however, that the same judge occupies the same prestigious position when he admonishes a jury not to consider matters arising during the course of the trial and that his admonition should be presumed to carry at least as much weight as his other declarations and actions. An admonitory instruction was considered to be sufficient prophylaxis in Murchison v. State, 153 Ark. 300 , 240 S.W. 402 . In that case where the appellant was charged with selling and being interested in the sale of intoxicating liquors, the prescription for cure of any error here was clearly written. We said: Objections were made to remarks made by the court, in overruling appellant’s objections to this testimony, wherein the court stated, in substance, that the grounds for overruling the objections were that the testimony of the witnesses showed that the whisky came out of appellant’s house and tended to show that appellant was operating and controlling the house. The basis of the objection to this statement of the court is that it amounted to an expression of the opinion of the court on the weight of the evidence. When the objection to the remark was made, the court turned to the jury and gave the following admonition: “You need not pay any attention to what the court said. I am simply making a ruling, and anything the court said you will pay no attention to, for the facts are for you to determine. And the court further states to you, with reference to the parties coming out of the back door of this place, as to what force and effect it has and the weight to attach to it, under the evidence, it is solely in your province to determine.” We do not think that the court’s statement, when considered in connection with the admonition given to the jury, could be treated as an expression of the opinion of the court, upon the weight of the evidence. A similarly worded admonition would have certainly been sufficient in this case. If not, certainly one similar to those given in Coulter v. State, 110 Ark. 209 , 161 S.W. 186 , where the conviction of the appellant in the case for assault with intent to kill was affirmed, would have sufficed to remove any prejudice that might have resulted from the court’s remarks. In treating this situation we said: The defendant was a witness for himself, and on cross-examination the prosecuting attorney asked him if he had not been convicted for killing his brother. Counsel for defendant objected to this question, and the court stated that it was proper to ask him as a witness if he was convicted as a matter affecting his credibility. Counsel for defendant remarked that, if the defendant did kill his brother, he was justifiable, and the court then remarked to counsel for defendant, “You know, Judge Steel, he was not justifiable.” The defendant excepted to this remark of the court, and the court said: “I did not mean that, I meant it would not be competent to go into that question here in this trial at all. It is competent to ask him if he had been convicted of a felony. You can ask him how long he has been living over there; but, as to how long he stayed in the penitentiary, that is not material.” At the request of the defendant, the court instructed the jury as follows: “You will not consider the fact that defendant has previously been convicted of a crime as in any manner establishing his guilt of the crime charged; but it may be considered only as it may affect his credibility.” Under these circumstances, we do not think that the remarks made by the court were prejudicial to the rights of the defendant. Since the judge’s remarks could have been corrected upon proper request and any prejudice attributable to them removed by a proper admonition, which was not requested, I can find no excuse for saying that the circuit judge manifestly abused his discretion in denying a mistrial or for ordering a new trial in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763808. Public record. Not legal advice.