¶1concurring. I concur with jmuch of the the majority opinion and the result and write only to emphasize certain salient points regarding the “Bad Acts” point and the need for admonitions from the bench.
¶2In my opinion, our analysis should initially focus on whether the circuit judge abused his discretion by not intervening to correct serious error in the guilt phase, even though the error was not objected to, under Arkansas Rule of Appellate Procedure - Criminal 10(b)(iv) or, alternatively, abused his discretion by failing to correct an evidentiary error that affected a substantial right of Green’s under Arkansas Rule of Appellate Procedure - Criminal 10(b)(v). A violation of Rule 404(b) of the Arkansas Rules of Evidence gives us some guidance as to whether serious error or error affecting a substantial right has occurred.
¶3I agree with the majority that Green’s control over his family is not independently relevant as evidence that he committed the murders. Nor is it relevant as corroborative evidence of accomplice testimony. Nevertheless, I believe that in most, if not all, of the incidents of bad-acts testimony discussed by the majority, an admonition to the jury would have cured the error as opposed to a declaration of a mistrial.
¶4For Kathy Elliott Hart’s testimony, it was serious error for the circuit judge not to admonish the jury to disregard her testimony about her nephew Shane’s mysterious death after the theft of marijuana plants. Such testimony was extremely prejudicial, in that it indicated that Green was culpable in a murder for which he had not been charged. See, e.g., Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999). The circuit judge should have stepped in even though defense counsel never specifically asked for an admonition after the judge offered it to him. This failure to admonish the jury was the abuse of discretion in my judgment rather than the failure to declare a mistrial.
¶5For Joshua Green, I agree with the majority that Joshua’s testimony that his father operated “outside the law” and had physically abused him was more prejudicial than probative under Rule 403. This, too, was a “serious error” under Rule 10(b)(iv), and the circuit judge should have intervened and admonished the jury to disregard it. Failure to correct the serious error by admonishment was another abuse of discretion in my judgment.
¶6In the case of Amber Green, the most prejudicial testimony from her concerned Green’s holding a gun to Mary’s head and telling her to “say her prayers.” I agree with the majority that Green’s spousal abuse had no relevance to his guilt. The fact that Green exercised control over his wife and abused her is not probative of whether Green was guilty of the murders. For that reason, the circuit judge had a clear obligation to step in and correct the error.
¶7Similarly, Chad Green’s statements that he smoked methamphetamine with his father, who also made him steal, were clearly irrelevant in the murder trial and prejudicial. Again, the specific abuse of discretion was in failing to admonish the jury for purposes of correcting the error under Rule 10 (b) (iv).
¶8With regard to Mary Green, there was serious error in her testimony (1) that Green was an abusive father and husband; (2) that she thought Green was involved in the Elliott murders, and (3) that she knew more about the matter at hand than she was allowed to mention. All of this testimony constituted either serious error or an evidentiary error affecting Green’s substantial rights. An admonishment should have been made to the jury to correct the resulting prejudice.
¶9As a final point, the testimony of the jailhouse “snitch,” Willie Scott Moffitt, about Green’s threats and violence toward him had no relevance to his murder of the Elliotts in the guilt phase. Nor does it fit within a Rule 404(b) exception. An admonishment by the circuit judge was required.
¶10For these reasons, I would reverse the judgment of conviction and remand for a new trial.