{
  "id": 6142485,
  "name": "Harry BATEMAN v. STATE of Arkansas",
  "name_abbreviation": "Bateman v. State",
  "decision_date": "1981-09-23",
  "docket_number": "CA CR 81-45",
  "first_page": "339",
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Mayfield, C.J., and Glaze and Corbin, JJ., dissent.",
      "Mayfield, C.J., and Glaze, J., join in this dissent."
    ],
    "parties": [
      "Harry BATEMAN v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "James R. Cooper, Judge.\nAppellant was convicted of the crime of incest in violation of Ark. Stat. Ann. \u00a7 41-2403 (Repl. 1977) in Johnson County Circuit Court. The jury sentenced him to five years in the Department of Corrections. From that conviction comes this appeal.\nAs error, appellant argues that the trial court\u2019s reference to the complaining witness as the \u201cvictim\u201d was prejudicial, and that the court erred in failing to grant a mistrial in response to appellant\u2019s motion.\nThe question on appeal is whether the trial court abused his discretion in failing to grant a mistrial under these circumstances. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979). A mistrial is an extreme remedy which should be utilized only as a last resort. Price v. State, 268 Ark. 535, 597 S.W. 2d 598 (1980). It is clear that the verdict of the jury should not be biased or affected by expressed opinions of the trial court. [Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1889); West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973)], but we must look at the totality of the circumstances in determining whether or not the remark was so prejudicial that a mistrial should have been granted [Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979); Vassar v. State, 75 Ark. 373, 87 S.W. 635 (1905)]. In this case, the trial court should not have referred to the prosecuting witness as the \u201cvictim,\u201d but from a review of the record it is clear that the court was simply attempting to identify her for purposes of questioning the jury panel as to whether or not they were acquainted with her. Certainly, the court could have referred to her as the alleged victim and that would not have been error. Under all the circumstances, we do not view that comment by the trial court as prejudicial even though the term should not have been used. Penton v. State, 194 Ark. 503, 109 S.W. 2d 131 (1937); Newberry v. State, 261 Ark. 648, 551 S.W. 2d 199 (1977).\nIn addition, we note that no objection was made at the time the court made the reference, and in fact the motion for mistrial came only after the jury had been selected and sworn. During the course of voir dire, the prosecuting attorney referred to the complaining witness as the \u201cvictim\u201d and no objection was registered either at that time or in the motion for mistrial. If there was error, it was either waived or was harmless and therefore we affirm.\nAffirmed.\nMayfield, C.J., and Glaze and Corbin, JJ., dissent.",
        "type": "majority",
        "author": "James R. Cooper, Judge."
      },
      {
        "text": "Donald L. Corbin, Judge,\ndissenting. I must respectfully dissent to the majority\u2019s opinion. I think that the trial court should have granted a mistrial.\nA trial judge should be circumspect in his language at all times for his position before the jury is one of great influence. Williams v. State, 174 Ark. 752, 2 S.W. 2d 36. The Supreme Court of Arkansas in Sharp v. State, 51 Ark. 147, 10 S.W. 228, in reversing a conviction for second degree murder, made clear the effect an unguarded remark by the trial judge could have upon a jury. The Court in Sharp, supra, quoted the following from People v. Williams, 17 Cal. 146:\nThe word victim in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. ... When the deceased is referred to as \u201cvictim,\u201d the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal. The court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. The experience of every lawyer shows the readiness with which a jury frequently catch at intimations of the court, and the great deference which they pay to the opinions and suggestions of the presiding judge, especially in a closely balanced case, when they can thus shift the responsibility of a decision from themselves to the court. A word, a look, or a tone may, sometimes, in such cases, be of great or even controlling influence.\nWebster\u2019s Third International New Dictionary explains \u201cvictim\u201d as \u201cprey, quarry: victim applies to anyone who suffers either as a result of ruthless design or incidentally or accidentally.\u201d Black\u2019s Law Dictionary (5th ed. 1979) defines victim as \u201cthe person who is the object of a crime or tort, as the victim of a robbery is the person robbed.\u201d\nThe reflection of such remark on the credibility of the prosecuting witness is apparent. Given the inherent meaning of the word \u201cvictim\u201d and the context in which it was used, leaves no doubt that, although unintentionally, the court intimated to the jury panel its opinion that the prosecuting witness had been wronged in some way. Because of public abhorrence to the type of offense with which defendant was charged and the natural sympathy given a young girl in the setting involved, the slightest intimation by the presiding judge that her testimony merits belief carries a great influence with the members of the jury.\nThe degree of influence a presiding judge possesses in regard to a jury is not diminished simply because evidence is yet to be presented.\nI am afraid that the use of general knowledge and understanding by each juror would not reduce the effect of the utterance in question, especially when one takes into account that the word \u201cvictim\u201d describes one who had been legally or morally wronged. The danger of the reference is that it might instill sympathy in the hearts and minds of the jury in favor of the prosecuting witness while in the same instance harden their senses against the accused.\nFinally, I note that the majority has disregarded 100 years of existing case law.\nMayfield, C.J., and Glaze, J., join in this dissent.",
        "type": "dissent",
        "author": "Donald L. Corbin, Judge,"
      }
    ],
    "attorneys": [
      "Ronald Gene Killion and Edgar G. Goodman, for appellant.",
      "Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Harry BATEMAN v. STATE of Arkansas\nCA CR 81-45\n621 S.W. 2d 232\nCourt of Appeals of Arkansas\nOpinion delivered September 23, 1981\nRonald Gene Killion and Edgar G. Goodman, for appellant.\nSteve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0339-01",
  "first_page_order": 367,
  "last_page_order": 370
}