¶1dissenting. The position taken by the majority in this case takes the contemporaneous-objection rule to a new and dizzying height. I assume the reason for the rule is to assure that an objection or, as in this case, motion for mistrial is made while the facts giving rise to the motion are fresh and the court is in the best possible position to rule on the matter at hand. I can understand the notion that a waiver had occurred in Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), because the motion for a mistrial was made by the defendant after two objections had been dealt with during the opening statement of the prosecution and after the defendant’s opening statement had occurred. It was almost as if the motion for a mistrial were an afterthought.
¶2The holding in Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987), is that an objection must be made at the time an objectionable statement occurs during closing argument “so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.” It apparently was our perception that in the case of a closing argument, which often involves reiteration of evidence in great detail, it would be most helpful to avoid confusion by clearing up possible misstatements as they occurred, rather than waiting until the conclusion of an argument which could be quite lengthy. Be that as it may, it is unnecessary to apply that rule to opening statements by counsel which usually amount to no more than an abbreviated prospective summation. In this case, there is no doubt in my mind that the Trial Court could have taken “such action as is necessary to alleviate any prejudicial effect on the jury” at the close of the prosecutor’s opening statement, and it would have been no less effective than if taken the moment the objectional reference was made.
¶3While I can tolerate, in the case of a closing argument, a rule that breaches the common courtesy usually accorded to a speaker of allowing him or her to finish a speech, I cannot do so with respect to an opening statement. That is especially so in a case such as this one where that which was said had the potential of casting a taint upon all of the remainder of the trial.
¶4In this case, the mistrial motion came after the prosecution’s opening statement in which it was said that “he [Smith] will get an opportunity in this courtroom, through the tapes and other evidence we’ll introduce, to present what he claims happened.” Unlike the Dixon case, no other objections had been considered, the defense had not made its opening statement, the matter was fresh before the court, and the motion was made. Not only should we consider the merits of the motion, we should reverse the conviction because of the egregious error in declining to grant the motion after the reference to the “opportunity in this courtroom” Smith would have to prove his innocence — a burden no accused need bear. Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993); Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985).
¶5I respectfully dissent.