The Arkansas Supreme Court on Thursday overturned a 2023 Court of Appeals opinion that vacated a man's conviction that stemmed from a 2020 driving while intoxicated arrest.
The opinion, which included a dissent, reaffirmed the conviction of Rhys Franklin, 40, who was a resident of Greenwood as of 2022. Franklin was arrested in Scott County on Nov. 17, 2020 on charges of DWI and refusing to submit to a chemical test.
The majority opinion in the case was written by Associate Justice Cody Hiland, while the dissent was penned by Justice Karen R. Baker.
Franklin's appeal was based on the belief that the circuit court made a mistake by denying two separate motions for a mistrial. Those motions were tied to answers that two witnesses, including the arresting officer, gave during the jury trial in 2021.
"Our court of appeals reversed and remanded, and we granted the State's petition for review," Hiland wrote. "Because we hold that the circuit court did not abuse its discretion, we affirm accordingly and vacate the court of appeals' opinion.
As part of his conviction, which was filed on April 22, 2022, Franklin was sentenced to 24 hours in a city jail for each offense.
According to the opinion, Deputy James Oswald responded to a dispatch call on Nov. 17, 2020, that resulted in him finding Franklin passed out in the driver seat of his car on the side of the road, with the car lights on, the passenger-side window down and engine running.
After attempts to wake Franklin, Oswald reached through the window and turned off the vehicle.
Eventually, after Franklin was awakened, Oswald could "smell the odor of intoxicants on Franklin's breath, he also observed Franklin's eyes to be red, watery, and bloodshot, and his speech to be slurred. Deputy Oswald asked Franklin if he had been drinking, and Franklin admitted consuming several beers."
Franklin's "balance was poor and wobbly––in fact, he was unable to walk without the assistance of Deputy Oswald."
When asked if he would take a field sobriety test, Franklin responded "I'm not doing that. I'm just not doing that. Do whatever you have to do, I'm not doing that," according to the court file.
After Oswald placed Franklin under arrest, a search of his car found an empty beer can in the passenger-side floorboard, an opened 30-pack of beer and more cans of beer in an ice chest. Franklin was transported to the detention center where he refused to submit to any chemical tests to determine his degree of intoxication.
During Franklin's trial, Oswald testified to the observations that led to him believe Franklin was intoxicated.
The defense specifically questioned Oswald about the tests Franklin refused at the detention center. Oswald testified that after Franklin refused a breath test, he was offered a urine test, to which he refused.
The defense asked Oswald whether Franklin refused to take "a formal test, a scientific or a test that could be admitted into evidence," which Oswald confirmed.
Oswald also confirmed he took Franklin to the detention center "for a certified test" because he thought Franklin may be intoxicated.
"Now, what happened at the station that changed your suspicion to a firm conviction, enough that you wrote him a citation for DWI? That is a simple question, son," the defense asked.
"I mean, it's not admissible, but it was .17 the PBT," Oswald said.
This was when the defense made its first motion for a mistrial, which was denied after the court stated "[I]n consideration of the totality of the circumstances looking at the entire line of questioning, I am going to find that it was in response to the questioning of the Defense."
The court offered to give the jury a curative instruction, but the defense declined.
A second witness who had helped Oswald with Franklin, Omar Gonzales, was asked by the state about his involvement.
"When I arrived, Deputy Oswald advised me of what was going on," Gonzales said. "He had Mr. Franklin in the back of the truck. And he asked me if I could administer a PBT, which I did."
According to the opinion, "The prosecutor ensured the court that both Gonzales and Oswald were instructed 'not to get into [the PBT]' and apologized to the court. Defense counsel again moved for a mistrial that was denied on the grounds that Gonzales only mentioned that a PBT was given but made no insinuation as to the results of that test, which 'case law is clear that is acceptable.' Defense counsel, again, stated he did not want to further emphasize the PBT by giving a cautionary instruction."
Hiland wrote that the first motion for a mistrial was based on Oswald's response to a question posed by the defense and not the prosecutor.
"In reviewing the transcript, defense counsel 'opened the door' and clearly invited the response that he received," Hiland wrote. "We have repeatedly held under the invited-error rule that one who is responsible for error cannot be heard to complain of that for which he was responsible."
"It would be abundantly unjust to permit counsel for either party to intentionally elicit improper evidence only to vehemently object upon its utterance and demand a new trial because of error. ... We agree with the circuit court that Deputy Oswald's testimony was a legitimate response to the door opened by defense counsel via the distinct questions asked on cross-examination."
About Gonzales's testimony, Hiland wrote that while it was "a spontaneous response to a question by the State, not the defense, Gonzales's answer was not a foreseeable response to the prosecution's question and cannot be said to have been deliberately induced by the prosecution. Additionally, and more importantly, the utterance that a Preliminary Breath Test (PBT) was given without mention of the actual results is a harmless error, if an error at all."
Hiland then noted that the defense refused "an immediate curative instruction" to the jury.
"Defense argues that this trial decision resulted from his opinion that a limiting instruction would only emphasize the PBT 'even more.' While the defense was well within his rights to make such a decision, he cannot now claim that it was an abuse of discretion warranting reversal."
Baker dissented because she believed "the circuit court abused its discretion in denying Franklin's motion to declare a mistrial during the cross-examination of Deputy Oswald."
Baker wrote that the majority opinion that a mistrial was not warranted, despite the introduction of the inadmissible evidence, was "flawed for two reasons."
Baker wrote that the aim of the defense's questioning of Oswald "was both to elicit testimony regarding what happened at the detention center to further convince law enforcement of Franklin's guilt and to carefully limit the scope of Deputy Oswald's testimony to only the admissible test results, if any. Further, it is undisputed that the PBT was administered to Franklin at the scene, well before Franklin was transported to the detention center. Therefore, it is clear that Deputy Oswald's testimony was not a legitimate response to defense counsel's line of questioning."
Baker believed that "the prejudicial effect of Deputy Oswald's testimony could not have been alleviated by a curative instruction to the jury" and the "prejudicial effect of this testimony is substantial, and it is difficult to conceive of evidence that would be more patently inflammatory under the circumstances."