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State v. Kelsey6/8/1998
lice officer's testimony. We disagree.
Kelsey was arrested by officer Slavin in Maryland. At trial, Slavin testified that when Kelsey was detained in his police car, Kelsey asked if he was going to be treated as an adult or juvenile. Slavin told him he would be treated as an adult. Slavin then testified, "[Kelsey] wanted to know why because he said he was a juvenile when he did it." The State also introduced into evidence a copy of Slavin's incident report to corroborate his testimony.
During Payne's cross-examination of Kelsey, the following exchange occurred:
Q. Have you read that document [Slavin's incident report] you just denied ever seeing?
A. I have never read through this document.
Q. You have never seen anything like that?
A. No, sir.
Q. Anyone who says you have would, of course, be mistaken
or lying; is that correct?
Kelsey's attorney immediately objected, arguing the question improperly pitted Kelsey's testimony against Slavin's testimony. Kelsey moved for a mistrial. The trial Judge sustained Kelsey's objection, but denied his motion for a mistrial. Payne's counsel continued with the cross-examination of Kelsey:
Q. So when [Slavin] said that you said, "I was juvenile when I did it," Mr. Slavin was incorrect?
A. Yes, sir, he was.
Kelsey again objected on the same grounds as before. The trial Judge sustained the objection but denied Kelsey's motion for a mistrial.
The decision to grant or deny a mistrial is within the sound discretion of the trial Judge and will not be overturned on appeal absent an abuse of discretion. State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (1997); State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989). The power of the court to declare a mistrial ought to be used with the greatest caution and for plain and obvious causes stated into the record by the trial Judge. State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298. The granting of a motion for a mistrial is an extreme measure which should be taken only where an incident is so grievous that prejudicial effect can be removed in no other way. 75B Am. Jur. 2d Trial Section 1706 at 491 (1992).
We first note that any prejudice to Kelsey could have been removed by the trial court striking the testimony and giving a curative instruction to the jury. See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996)(an instruction to disregard incompetent evidence usually is deemed to have cured the error in its admission unless on the facts of the particular case it is probable that notwithstanding such instruction or withdrawal the accused was prejudiced). However, Kelsey's attorney failed to make such a motion before the trial court. See 75 Am. Jur. 2d Trial Section 467 at 642 (a motion for mistrial does not automatically include a motion to strike as a lessor prayer for relief).
Nonetheless, we find that Kelsey was not unfairly prejudiced by the testimony. Although it is improper for an attorney to cross-examine a witness in such a manner as to force him to attack the veracity of another witness, improper "pitting" constitutes reversible error only if the accused was unfairly prejudiced. State v. Sapps, 295 S.C. 484, 369 S.E.2d 145 (1988). VVhlle Kelsey's credibility was at issue in the case, Kelsey admitted on direct examination that he had, in fact, placed the pipe bomb into Richey's mouth. The critical issue for the jury to decide was whether Richey was alive or dead when Kelsey committed this act. The above colloquy between Kelsey and Payne's attorney did not directly relate to this issue. Kelsey merely disputed telling Officer Slavin that he w
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