Rhys Franklin v. State of Arkansas

Cite as 2023 Ark. App. 318
ARKANSAS COURT OF APPEALS
DIVISIONS I, II & IV
No. CR-22-452

Opinion Delivered May 31, 2023
RHYS FRANKLIN
APPELLANT APPEAL FROM THE SCOTT
COUNTY CIRCUIT COURT
V. [NO. 64CR-21-75]

STATE OF ARKANSAS HONORABLE JERRY DON RAMEY,
JUDGE
APPELLEE
REVERSED AND REMANDED

BART F. VIRDEN, Judge

A Scott County jury convicted appellant Rhys Franklin of driving while intoxicated

(DWI) and refusal to submit to a chemical test. Franklin contends that the trial court

committed reversible error when it denied his two separate motions for a mistrial. We agree

that a mistrial should have been granted; therefore, we reverse and remand.

I. Background

On the night of November 17, 2020, Scott County Deputy Sheriff James Oswald

responded to a report of a person “passed out” in a vehicle that was parked on Brush Creek

Road near Parks, Arkansas. Deputy Oswald found Franklin sound asleep in the driver’s seat.

The vehicle’s headlights were on, and its engine was still running. Deputy Oswald tried to

wake the sleeping driver, but Franklin was unresponsive, so the deputy reached through the

open window and turned off the vehicle’s ignition. When he did, Franklin began to stir.

Deputy Oswald testified that Franklin’s eyes were “red and watery, pretty bloodshot,” his
breath smelled of intoxicants, his speech was slurred, and he was “wobbly” when he got out

of the vehicle. Franklin admitted having drunk “several beers” at deer camp earlier that day.

Deputy Oswald asked Franklin to submit to a field-sobriety test, but Franklin said, “I’m just

not doing that.” Deputy Oswald told Franklin that he was arresting him on suspicion of

DWI and placed him in the back of the patrol vehicle. Incident to the arrest, Deputy Oswald

searched Franklin’s vehicle and found an empty beer can on the passenger’s side floorboard,

a thirty-pack case of beer that had been opened, and more cans of beer in an ice chest. At

the detention center, Deputy Oswald asked Franklin to submit to a chemical test, but he

refused. Deputy Oswald then issued citations to Franklin for DWI and refusal to submit.

At the jury trial, Deputy Oswald testified as to why he believed Franklin was

intoxicated, which included the deputy’s observations at the scene set forth above, followed

by Franklin’s refusal to take any field-sobriety tests or to take a chemical test offered at the

detention center. During what could be described as a vigorous cross-examination, defense

counsel asked Deputy Oswald the following questions:

What I’m wondering about, how do we go from a suspicion to a firm conviction
that caused you to write the ticket, because [Franklin] didn’t take the test? . . . Now,
what happened at the station that changed your suspicion to a firm conviction,
enough that you wrote him a citation for DWI?

Deputy Oswald said, “I mean, it’s not admissible, but [the portable breath test] was

.17.” At a bench conference, defense counsel moved for a mistrial, stating that the utterance

was “strictly voluntary” on Deputy Oswald’s part, that no question had been asked to

prompt him to refer to the portable breath test (PBT) result “other than a defensive

mechanism on his part,” that the PBT had been administered long before the chemical test

was offered at the detention center, and that the point of his line of questioning was simply

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how the deputy’s opinion on intoxication had gone “from suspicion to conviction.” The

State responded that defense counsel had “opened the door” by repeatedly asking Deputy

Oswald about the indications of intoxication. Defense counsel conceded that Deputy

Oswald’s suspicion had been based on the PBT and other factors, but he said that his

question pertained to what happened afterwards that made him certain enough of Franklin’s

intoxication to issue the citation. The trial court denied the motion for mistrial, stating that

after considering the totality of the cross-examination, Deputy Oswald had been responding

to a question asked by defense counsel. Although the trial court offered to give the jury a

cautionary instruction to disregard the deputy’s testimony about the PBT result, defense

counsel declined, stating that a cautionary instruction to ignore the testimony would only

serve to emphasize it.

The State then called Omar Gonzales, an employee with the City of Waldron, who

had been called to assist the sheriff’s office in responding to the parked vehicle on Brush

Creek Road. Gonzales was asked what happened at the scene, and he said, “When I arrived

Deputy Oswald advised me of what was going on. He had Mr. Franklin in the back of the

truck. And he asked me if I could administer a PBT, which I did.”

Another bench conference convened, and the prosecutor advised the trial court that

he had told both witnesses not to “get into that,” meaning the PBT. The trial court

remarked that the PBT was already before the jury, so “that’s not an issue.” Defense counsel

again moved for a mistrial and explained that a cautionary instruction would only draw

attention to the inadmissible testimony. Defense counsel’s motion for a mistrial was denied,

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and the trial resumed. Before retiring to deliberate, the trial court read to the jury the

following instruction:

Rhys Franklin is charged with the offense of Driving While Intoxicated. To
sustain this charge the State must prove, beyond a reasonable doubt that Rhys
Franklin, while intoxicated, operated or was in actual physical control of a motor
vehicle. Or, operated or was in actual physical control of a motor vehicle while the
alcohol concentration in his breath or blood was one-eighth of one percent (.08%) or more by
weight of alcohol in his blood as determined by a chemical test of his blood, urine, or breath.

(Emphasis added.)

The jury found Franklin guilty of DWI and refusal to submit to a chemical test.

Franklin has now appealed to this court.

II. Standard of Review

A mistrial is an extreme and drastic remedy to be resorted to only when there has

been an error so prejudicial that justice cannot be served by continuing the trial. McDaniel

v. State, 2019 Ark. 56, 567 S.W.3d 847. The grant or denial of a motion for mistrial lies

within the sound discretion of the trial court, and the exercise of that discretion should not

be disturbed on appeal unless an abuse of discretion or manifest prejudice to the complaining

party is shown. Id. We consider factors such as whether the prejudicial response was

deliberately induced and whether an admonition to the jury could have cured any resulting

prejudice. McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913. An admonition to the jury

usually cures a prejudicial statement unless it is so patently inflammatory that justice could

not be served by continuing the trial. McClendon v. State, 2019 Ark. 88, 570 S.W.3d 450.

There are instances, however, where a statement is so prejudicial that an admonishment

could never cure the prejudicial effect. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).

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III. Discussion

This case requires us to examine the prejudicial effect of inadmissible evidence being

revealed to the jury by the State’s witnesses. It is well settled that the results of a PBT are

not admissible to prove a person is guilty of driving while intoxicated. See Elser v. State, 353

Ark. 143, 114 S.W.3d 168 (2003). The prosecutor told the trial court that he had instructed

the State’s witnesses not to mention the PBT; yet not just one, but two of them did just

that.

On direct examination by the prosecutor, Deputy Oswald testified about his actions

at the scene, and he said, “I then told [Franklin] that I was going to arrest him for suspicion

of DWI[,] and I took him to the side of my vehicle on the passenger side and checked him

and made sure—I did not handcuff him, and I placed him in the back of my unit.” On

cross-examination, defense counsel asked Deputy Oswald what had happened when

Franklin was taken to the detention center, i.e., after the encounter at the scene—and after

the PBT had been administered, which was subsequently revealed by the testimony of

Gonzales—that changed the deputy’s opinion that Franklin was intoxicated from a mere

suspicion to a firm conviction. That is when Deputy Oswald informed the jury that

Franklin’s PBT registered 0.17 percent. The deputy even acknowledged that he was aware

that the result was inadmissible.

We disagree with the State’s position that defense counsel basically invited the error

by “opening the door” to the inadmissible testimony because the deputy’s answer was not

responsive to defense counsel’s question, which was essentially whether something had

occurred on the ride to or at the detention center. The State relies on Buckley v. State, 2014

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Ark. App. 516, 443 S.W.3d 559, but that case is readily distinguishable. This court affirmed

Buckley’s conviction for DWI and held that the trial court did not err in allowing an officer

to testify about a PBT because it was relevant to defense counsel’s question and did not

result in prejudice because defense counsel had opened the door by asking on cross-

examination whether the “HGN” was the only test administered to Buckley. In Buckley,

we do not know whether the actual results of the PBT were revealed, and unlike here, the

testimony in Buckley was in response to defense counsel’s specific question about tests. In

this case, even a contentious cross-examination does not give a witness license to reveal

inadmissible PBT results, especially when that witness had been warned about it before he

testified and when, as here, the witness even acknowledged the inadmissibility of what he

nonetheless revealed to the jury.

Although the State contends that defense counsel’s decision to decline the trial court’s

offer of a cautionary instruction waived any error, we do not agree. While an admonition

to the jury may in certain circumstances cure a prejudicial statement, Zachary v. State, 358

Ark. 174, 188 S.W.3d 917 (2004), it could not unring the bell that had been rung here. The

damage was already done. Moreover, after Deputy Oswald had revealed the PBT results to

the jury, that prejudicial testimony was compounded by Gonzales’s subsequent mention of

the PBT, bringing the PBT results to the jury’s attention once again. Neither reference to

the PBT was inadvertent, and defense counsel’s strategic decision to not have the jury

cautioned does not preclude our review of the error.

Finally, we cannot agree that the error was harmless. A dissent to this opinion relies,

in part, on Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995), for the proposition

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that admission of the PBT results was harmless error. The facts of Massengale actually

highlight why a mistrial should have been granted in the case at bar. In Massengale, the

testimony was that the PBT was given to the defendant and produced “unacceptable

results.” That is a significant distinction from testimony in this case that the results were

0.17.

While we may not disagree that the evidence was sufficient to have convicted

Franklin of DWI notwithstanding the inadmissible PBT results, we cannot agree that the

error here was slight. After having heard that Franklin registered 0.17 percent on the PBT,

the trial court instructed the jury that Franklin could be found guilty if he operated or was

in actual physical control of a motor vehicle while he was intoxicated or while the alcohol

concentration in his breath or blood was one-eighth of one percent (.08%) or more by weight of alcohol

in his blood as determined by a chemical test of his blood, urine, or breath. Similarly, in White v.

State, 73 Ark. App. 264, 42 S.W.3d 584 (2001), we held that the trial court erred in

admitting a trooper’s testimony that White had failed a breathalyzer when White had not

been permitted to cross-examine the people responsible for calibrating and certifying the

machine. We said that the error was not harmless even though the trooper’s testimony that

White smelled of alcohol and failed field-sobriety tests would have been sufficient to convict

him without the jury considering the breathalyzer result because the jury had been instructed

that White could be convicted of DWI if the jury found that he operated a vehicle while

intoxicated or while there was 0.10 percent or more by weight of alcohol in his system.

We cannot imagine a more “patently inflammatory” statement in a DWI trial than

one in which a member of law enforcement has testified that the defendant registered over

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the legal limit on a PBT and when the jury has been specifically instructed that the defendant

is guilty if his blood alcohol was 0.08 percent or more. The testimony by Deputy Oswald

that Franklin had registered 0.17 percent on the PBT, followed by Gonzales’s reference to

the PBT, determined the outcome here—the jury predictably found Franklin guilty of

DWI. A mistrial was warranted, and a cautionary instruction to the jury would have been

useless after hearing such prejudicial testimony.

Reversed and remanded. 1

THYER, WOOD, HIXSON, and MURPHY, JJ., agree.

HARRISON, C.J., and GLADWIN, KLAPPENBACH, and BROWN, JJ., dissent.

BRANDON J. HARRISON, Chief Judge, dissenting. I respectfully dissent from

the majority opinion because it doesn’t jibe with Arkansas Supreme Court precedent that

has both (1) permitted a “harmless error” analysis when PBT (portable breath test)-related

evidence was wrongly admitted in a DWI trial and (2) found that error to be harmless

given other indicia of intoxication introduced into the record.

1
Inasmuch as we are reversing and remanding as to Franklin’s DWI conviction, we
also reverse and remand the conviction for refusal to submit. See Williams v. State, 2010 Ark.
89, 377 S.W.3d 168 (holding that the trial court abused its discretion in not declaring a
mistrial as to all convictions—capital murder, kidnapping, first-degree domestic battering,
endangering the welfare of a minor, and felon in possession of a firearm—when a
prosecution witness falsely testified that Williams had previously been convicted of
terroristic threatening involving the murder victim); Wingfield v. State, 303 Ark. 291, 796
S.W.2d 574 (1990) (holding that the trial court abused its discretion in denying a mistrial
motion in a trial for first-degree murder and felon in possession of a firearm when a law
enforcement officer, on direct examination by defense counsel, referred to a polygraph
examination he had given to another witness because it was an attempt to bolster the
credibility of that witness).

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Applying a harmless-error analysis, Franklin’s conviction should be affirmed because

it’s sufficiently supported by evidence apart from the PBT point. I don’t in principle

disagree with the majority’s decision to recognize a bright-line rule that admitting a PBT

result is reversible error as a matter of law so that no harmless-error analysis need even be

made to see if a conviction could be scrubbed of the taint. That direct rule can be easily

applied in the trial and appellate courts, in almost every case in which the issue might

predictably arise. But such a per se rule runs contrary to our supreme court’s current view—

although I grant the harmless-error rule in DWI cases isn’t deeply developed by either

appellate court. Still, we must give the harmless-error analysis a chance, so to speak, until

the supreme court holds that a new trial is always required when (1) PBT evidence is

wrongly made known to the jury, and (2) a motion for mistrial has been properly made.

Now, to that supreme court precedent. In Massengale v. State, 319 Ark. 743, 894

S.W.2d 594 (1995), the defendant moved in limine to exclude evidence about portable

breathalyzer tests administered before he was arrested for DWI. The argument was portable

breathalyzer tests were not approved as Ark. Code Ann. § 5-65-206(c) required for

admission as evidence of intoxication, and mentioning the PBT was more prejudicial than

probative. Id. at 745, 894 S.W.2d at 595. When the prosecution asked about the PBT

during the trial, Massengale objected again. Id. Some evidence about the PBT came in.

Id. at 746, 894 S.W.2d at 596. The supreme court agreed the mention of the PBT was

erroneous because breathalyzer tests were not certified by the Department of Health.

Consequently, “the ruling of the trial court admitting the evidence of the portable

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breathalyzer test was erroneous. However, the error was harmless.” Id. at 747, 894 S.W.2d

at 596 (emphasis added).

The error was harmless given the non-PBT evidence of intoxication in the record.

That is the case here.

In a now ironic choice, the Massengale court cited this court’s precedent to support

its holding that admitting PBT evidence was harmless error given the whole record. In

Tallant v. State, the defendant was convicted of negligent homicide resulting from driving

while intoxicated after the circuit court admitted results of blood-alcohol tests on blood

samples the defendant contended were not taken in accordance with health department

guidelines. 42 Ark. App. 150, 152, 856 S.W.2d 24, 25 (1993). The supreme court wrote,

as it relied on Tallant as persuasive authority, that “[w]ithout definitively holding error was

committed,” we had “declared that any error in the admission of the tests was harmless, as

[Tallant] admitted that he had been drinking, smelled like alcohol, exhibited altered

behavior, and had fourteen or fifteen beer cans and an ice chest in his car.” Massengale, 319

Ark. at 748, 894 S.W.2d at 596. So in Tallant—as read by our supreme court no less—we

reached the opposite decision (in principle) than we did in White v. State, 72 Ark. App. 264,

42 S.W.3d 584 (2001), which the majority cites today. And Tallant runs opposite from the

majority’s decision today. Why? Because Tallant stands for the proposition that, if there is

sufficient evidence of intoxication apart from the challenged items, then even a wrongly

admitted chemical-test result can be a harmless error on the record.

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To sum it up, we applied a harmless-error test in Tallant 1 and affirmed a conviction

on the other evidence received. A couple of years later, the supreme court in Massengale

took the same path. I see no reason to deviate from those prior cases, unless the supreme

court imposes a bright-line rule stating that wrongly admitted PBT evidence is reversible

error as a matter of law when a motion for mistrial has been properly made. Because I don’t

believe that is the law now—and given there is ample unchallenged evidence in the record

to support Franklin’s conviction—I would affirm the judgment under a harmless-error

analysis.

BROWN, J., joins.

N. MARK KLAPPENBACH, Judge, dissenting. I dissent from the majority’s

decision to reverse Franklin’s convictions for driving while intoxicated and for refusal to

submit to a chemical test. I cannot say that the circuit court abused its considerable

discretion in denying his motions for the extreme remedy of mistrial. Importantly, defense

counsel opened the door to the objectionable testimony; he refused the offer of curative

instructions; and defense counsel’s strategy, as explained in his opening statement and closing

argument, was to focus on whether Franklin was in physical control of the vehicle, not

whether the State proved that he was intoxicated.

1
Tallant (1993) preceded White (2001) by eight years, but White did not directly
question, much less overrule, Tallant. Nor has White had any subsequent influence in this
area of the law, until today, if you walk its citation trail.

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Franklin exhibited ample physical indicators of intoxication when he was found

passed out behind the wheel of his vehicle. 1 Those indicators supported law enforcement’s

decision to detain Franklin and issue him a citation for DWI, regardless of any information

about a portable breath test. Defense counsel had the first officer, Oswald, reconfirm

Franklin’s outward signs of intoxication, confirm that Franklin had refused field-sobriety

tests and the chemical testing, and confirm that he (the officer) did not hold the refusal

against Franklin. Then came the following defense question:

What I’m wondering about, how do we go from a suspicion to a firm conviction
that caused you to write the ticket, because [Franklin] didn’t take the test? . . . 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.

Officer Oswald responded, “I mean, it’s not admissible, but it was .17 the PBT.” Defense

counsel “opened the door” by relentlessly asking the first officer what supported his decision

to issue the DWI citation, noting that there was nothing on the refusal-to-submit form that

included refusal of a breath test. Franklin’s appellate counsel acknowledges that “[t]here may

be valid argument that the defense counsel opened the door” as to the first officer’s

testimony, and I agree. Defense counsel is duty-bound to vigorously defend his or her

client, but it is unfair for defense counsel to bait a witness into revealing improper evidence

and then assert error requiring a new trial.

1
The multiple indicators of intoxication were his inability to awaken, his irrational
responses to being asked his name by twice answering “Mom,” his admission that he had
consumed several beers that day, the presence of open and unopened beer cans in plain
view, the smell of intoxicants coming from his breath, his bloodshot and watery eyes, and
his inability to stand or walk without assistance from the law-enforcement officer.

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Moreover, the problem in this case could have been alleviated by an immediate

curative instruction to the jury or by subsequently refusing to instruct the jury that DWI

can be committed by one in control of a vehicle while having a BAC of .08 or more.

However, defense counsel refused the offer of a curative instruction and never objected to

inclusion of a BAC result in the guilt-phase jury instructions defining the offense of DWI.

Notably, there was no testimony before the jury explaining the acronym “PBT” or the

number “.17.” Additionally, the second officer’s statement that he administered the “PBT”

was spontaneous, not brought on by the prosecutor, and no test result was mentioned.

A mistrial is an extreme and drastic remedy reserved only for when there has been

an error so prejudicial that justice cannot be served by continuing with the trial or when

the fundamental fairness of the trial has been manifestly affected. Jones v. State, 2019 Ark.

App. 345, 582 S.W.3d 847. The decision to grant a mistrial is within the sound discretion

of the circuit court and will not be reversed absent a showing of abuse or manifest prejudice

to the appellant. Id. We consider factors such as whether the prosecutor deliberately

induced a prejudicial response and whether an admonition to the jury could have cured any

resulting prejudice. Id. An admonition to the jury usually cures a prejudicial statement

unless it is so patently inflammatory that justice could not be served by continuing the trial.

McClendon v. State, 2019 Ark. 88, 570 S.W.3d 450. The supreme court has found no abuse

of discretion in denying a mistrial where the possible prejudice could have been cured by

an admonition by the circuit court and defense counsel refused the offer of such a curative

instruction. Ferguson v. State, 343 Ark. 159, 177, 33 S.W.3d 115, 126 (2000).

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It is apparent that the prosecutor and defense counsel were aware that the PBT was

not admissible as substantive evidence of guilt of DWI. The prosecutor confirmed that he

had told the State’s witnesses “not to get into that.” Even so, a PBT may provide evidence

to support the reason for arrest, and that was the question that defense counsel posed to

Officer Oswald. See Buckley v. State, 2014 Ark. App. 516, 443 S.W.3d 559; Gazaway v.

State, 2010 Ark. App. 776. 2 I cannot agree that the extreme remedy of mistrial was

warranted in this instance.

GLADWIN, J., joins.

Ernie Witt, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.

2
This fact, together with (1) the fact that reasonable cause for a DWI arrest is an
element of the offense of refusal to submit, Ark. Code Ann. § 5-65-202(a)(3) (Supp. 2021);
(2) the existence of overwhelming proof of appellant’s violation of the refusal-to-submit
statute; and (3) appellant’s failure to separately address any impact of the testimony in
question on refusal to submit, makes the majority’s reversal of the conviction for that
particular offense all the more remarkable.

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