¶1dissenting. The majority opinion correctly states general rules concerning mistrials, but it fails to apply them as our Constitution and our case law require. Considering the timing of the Trial Court’s remark and the context in which it was made, no doubt remains that Mr. Nobles was deprived of a fair trial.
¶2No factors make more indelible impressions on jurors than the attitudes, statements, and opinions of a trial judge. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). To jurors, his word is the law. Id. Due to the great influence a trial judge has on a jury, the judge should refrain from making unnecessary comments which could prejudice one of the litigants or influence the jury. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989); Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). Those have been our sentiments, just as they undoubtedly were the sentiments of the authors of Ark. Const, art. 7, § 23, which provides, in part, “Judges shall not charge juries with regard to matter of fact. . . .”
¶3A judge should always preside with impartiality and must be cautious and circumspect in his language, leaving the jury as the sole judge of the facts and the credibility of witnesses. West v. State, supra; Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 179 S.W. 179 (1915). Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses would tend to deprive one or more of the parties of the benefits guaranteed by the Constitution, and would be a palpable violation of the organic law of the State. Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1888). See also West v. State, supra.
¶4When considering whether a trial judge’s remarks deprive a party of a fair trial, we look to the totality of the circumstances. See Dillon v. State, supra; Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979). The only way to determine the real meaning or true import of any isolated remark is to consider the context in which it was made. Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981).
¶5A review of our cases shows that we have not blithely ignored the unsolicited and unfortunate remarks of judges concerning evidence being presented before juries. We have held numerous times that such a remark warrants a mistrial. For example, in Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924), the Trial Court responded to defense counsel’s explanation that the witness “was just trying to facilitate matters,” by saying, “Yes, facilitate like a crawfish does, backwards.” Perhaps that, too, was an attempt at levity. In McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944), the trial judge said that to grant the appellant’s motion to question a witness “would be just silly.” In Fuller v. State, 217 Ark. 679 at 681, 232 S.W.2d 988 (1950), the Trial Court stated, “. . . these men here on the jury have something else to do besides listen to that.”
¶6Mistrial was also approved in West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), where the Trial Judge asked witnesses how much they had been paid to come up with some information, and in Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980), where the Trial Judge, during a heated exchange with defense counsel, threatened counsel with incarceration, stating, “I’ll put you right down there where he is,” referring to the defendant.
¶7In Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989), the Judge, while viewing a sexually explicit movie, said, “I’m feeling ill. How much longer?” We held a mistrial should have been granted. Finally, in Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990), we approved a mistrial where, during voir dire of the jury, the Judge told a potential juror, whose car had been burglarized, that the attorney general had said it would be against the law to shoot someone who was breaking into your car, but opined that he did not think that was the law. He then asked the jury panel how many of them would convict someone who shot another person caught breaking into their car.
¶8Unlike most of the very serious remarks we held to warrant mistrials in the cases cited, the one we consider here was made to get a laugh from the listeners, including the jurors. Although it was thus not of the “serious” sort, it was nonetheless devastating to Mr. Nobles’ case. It was made while a chiropractor’s deposition, that of Dr. Jim Taylor, was being read into the record.
MR. CAHOON (Counsel for Ms. Casebier): I’m going to end my cross examination. My eyes hurt. I’ll read part of your redirect but I’m not going to read any more. That’s enough.
THE COURT: Well, are you okay?
MLR. CAHOON: Well, I got a headache, that’s all. Started wearing glasses about a month ago and it’s really bothering me.
THE COURT: Maybe you need to go to the chiropractor.
MR. CAHOON: Maybe so.
…
MR. STEELE (Counsel for Mr. Nobles): I know that was an inadvertent remark, but obviously the jury laughed and, you know, I know that you didn’t mean anything by it but, but I, it was a disparaging remark on chiropractors or at least it could’ve been taken that away.
THE COURT: Why, I didn’t mean that. I like chiropractors.
MR STEELE: I know but, but the jury got a big laugh out of it and . . .
THE COURT: Do you want a mistrial?
MR. STEELE: Yes, sir.
THE COURT: Overruled.
¶9There was no apparent purpose for the remark other than to elicit laughter. In any event, it is undisputed that the jury laughed and that chiropractic was the butt of the joke. Even a cursory reading of the record leads to the inevitable conclusion that the jury’s laughter was at the expense of chiropractors.
¶10There may be circumstances in which such a remark would be harmless or curable, but not here. All of the evidence concerning Mr. Nobles’ damages was presented through his chiropractor witnesses. Once that evidence was impugned, the jury’s finding in favor of Ms. Casebier was a foregone conclusion.
¶11Ms. Casebier defended on two bases; first, that she did not cause the accident, and second, that Mr. Nobles was not injured. Mr. Nobles’ injury claim was challenged throughout the proceedings.
¶12The attack began with Ms. Casebier’s answer denying that Mr. Nobles suffered any damages. At trial, Ms. Casebier cross-examined Mr. Nobles on the issue of damages. Mr. Nobles explained that he was not cut, scraped, or bleeding after the accident. He also admitted that he did not call an ambulance, did not know he was injured and even told Ms. Casebier that he was not injured.
¶13Ms. Casebier’s cross examination of Dr. Evana Dion Taylor Pickett further illustrates her attempts to show the jury that Mr. Nobles was' not injured. Dr. Pickett testified that it was her understanding that Mr. Nobles began to experience pain immediately after the accident. On redirect, she explained that “immediately” could mean several hours after the accident. On recross, she once again had to explain that she wrote down “immediately.” The examination of Dr. Pickett shows how Mr. Nobles’ failure to claim injury at the time of the accident was stressed to the jury.
¶14Ms. Casebier testified that she “just barely caught his bumper.” She told the jury that Mr. Nobles said that he was “just fine.” She also testified that Mr. Nobles told her directly after the accident that he “didn’t even feel a bump,” but “heard a hide noise.” Without doubt, this testimony was given to bolster her claim that Mr. Nobles did not suffer any injury.
¶15Finally, jury instruction # 6 stated:
Now James Nobles claims damages from Pati Casebier and has the burden of proving each of three essential propositions:
First, that he has sustained damages;
Second, that Pati Casebier was negHgent; and
Third, that such negbgence was a proximate cause of James Nobles’ damages.
Now if you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for James Nobles; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for Pati Casebier. (AMI 203). [Emphasis added.]
¶16The instruction pointedly requires the jury to find, prior to reaching any conclusion as to fault, that Mr. Nobles sustained damages. All of the evidence of his damages was produced through the expert testimony of two chiropractors. The Trial Court’s remark during the presentation of the expert testimony all but ensured that the jury would not find any damages, thus, based on this instruction, the jury could not find in favor of Mr. Nobles.
¶17The majority opinion attempts to gloss over the prejudicial nature of the remark by pointing to the fact that Mr. Nobles did not request an admonishment, and that one of the' instructions to the jury instructed them to disregard any comments from the Trial Court. The problem with this analysis is that the trial was rendered unfair the moment the Trial Court commented on the evidence and should not have continued. See Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990). When an admonishment can not cure the prejudicial effect, there is no duty to make such a request. West v. State, supra. An admonishment could not have cured the prejudice, thus, the instruction relied upon by the majority could not be expected to do so.
¶18Surely it is not the intent of the majority to hold that the instruction to the jury to disregard the Trial Court’s remarks concerning the evidence is sufficient to allow a judge to say anything he or she pleases and then wipe the slate clean by such an instruction. Obviously, there are lines to be drawn, and our Constitution, our cases, and our commitment to fairness require reversal in this instance.
¶19I respectfully dissent.