
    Ex parte Steven Ray SPARKS. (Re Steven Ray Sparks v. City of Weaver).
    1970812.
    Supreme Court of Alabama.
    Nov. 20, 1998.
    
      John T. Kirk, Montgomery, for petitioner.
    Trudie Anne Phillips, Anniston, for respondent.
   ALMON, Justice.

Steven Ray Sparks' was arrested in the City of Weaver, and the City charged him with driving under the influence and running a stop sign. The district court found him guilty of both charges, and he appealed to the circuit court for a trial de novo. See Ala.Code 1975, §§ 12-12-70(b) and 12-12-71.

At trial in the circuit court, the police officer who arrested Sparks testified that he had detected the odor of alcohol on Sparks and that he administered field sobriety tests to determine if he was intoxicated. The officer further testified that Sparks failed the field sobriety tests and that Sparks refused to submit to an alcohol breath test.

Sparks testified in his own defense and admitted that he had run a stop sign. However, he denied that he was driving under the influence, stating that he weighed 225 pounds and that he had drunk only three six-ounce draft beers during the two hours before his arrest. He attributed his failing the field sobriety tests to physical problems with his knees and to being unable to see because, he said, he was forced to look into bright lights on the arresting officer’s patrol car while he was performing the tests. Sparks also stated that, even though he may have smelled of alcohol, he speaks with a lisp and was sunburned at the time of his arrest, and that both of these factors may have contributed to his appearing to be intoxicated. Sparks further testified that, although he had refused to submit to a breath test because he thought the machine used for that test was unclean, he specifically asked for a blood test. Sparks said that police responded to his request by telling him that a blood test could not be administered until after he had submitted to a breath test.

On cross-examination, the City’s prosecutor asked Sparks if he recalled having been convicted of DUI on a previous occasion. This question elicited an immediate objection from defense counsel, and the circuit court sustained the objection. Defense counsel then moved for a mistrial. After the circuit court gave the jury a corrective instruction, and after no jurors indicated that they could not disregard the prosecutor’s improper question, the court denied Sparks’s motion for a mistrial.

The jury convicted Sparks of both of the charges brought against him. The circuit court sentenced Sparks on the DUI conviction to 24 days in jail — with four days to be served and 20 days suspended — and ordered him to pay a $1,500 fine, plus $141 court costs. On the conviction for running a stop sign, the court fined Sparks $100 and ordered him to pay $149 court costs. The Court of Criminal Appeals affirmed Sparks’s convictions with an unpublished memorandum, holding that the circuit court did not abuse its discretion by denying Sparks’s motion for a mistrial. Sparks v. City of Weaver, 727 So.2d 182 (Ala.Cr.App.1997) (table). Sparks petitioned for certiorari review, and we issued the writ of certiorari to determine whether Sparks was denied his right to a fair trial when the City’s prosecutor asked him about a prior DUI conviction and the circuit court subsequently denied his motion for a mistrial.

It is undisputed that the City’s prosecutor deliberately asked Sparks, in the presence of the jury, about a prior DUI conviction. Furthermore, it is uncontroverted that Sparks interposed a timely objection to the prosecutor’s question and also made a timely motion for a mistrial. Thus, the only question to be resolved is whether the prosecutor’s improper question was so prejudicial to Sparks’s case that it rendered the circuit court’s corrective jury instruction insufficient to ensure a fair trial. If the prosecutor’s question did evoke prejudice to that degree, then the circuit court abused its discretion by not granting Sparks’s motion for a mistrial and his convictions are due to be reversed.

In its brief, the City relies on numerous decisions in which the Court of Criminal Appeals has held that granting a mistrial is unnecessary under circumstances similar to those of Sparks’s trial. In those cases, the Court of Criminal Appeals has reasoned that, when a prosecutor asks a defendant about a prior arrest or conviction, and the question is objected to and the circuit court sustains the objection, a corrective instruction admonishing the jury to disregard the prosecutor’s improper question is sufficient to eradicate any prejudice to the defendant’s case and a mistrial is unwarranted. See, e.g., Breedlove v. State, 482 So.2d 1277 (Ala.Crim.App.1985); Walker v. State, 428 So.2d 139 (Ala.Crim. App.1982); Carter v. State, 405 So.2d 957 (Ala.Crim.App.), cert. denied, 405 So.2d 962 (Ala.1981); Favor v. State, 389 So.2d 556 (Ala.Crim.App.1980).

However, notwithstanding the cases cited by the City, this Court cannot condone a prosecutor’s attempt to elicit testimony about a defendant’s prior convictions in violation of the general exclusionary rule against such evidence. See Ex parte Tucker, 474 So.2d 134 (Ala.1985); Ex parte Arthur, 472 So.2d 665 (Ala.1985); Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966); Ala. R. Evid. 404(b); C. Gamble, McElroy’s Alabama Evidence, § 27.02 (5th ed.1996). Moreover, reported cases involving such improper questioning— and a subsequent denial of the defendant’s motion for a mistrial — are all too common, as demonstrated by the number of such cases cited in the City’s brief and in the Court of Criminal Appeals’ memorandum affirming Sparks’s convictions. Consequently, it appears to this Court that the current approach to these situations is inadequate insofar as it allows prosecutors a “free shot” at asking an improper question about a defendant’s prior criminal record while providing little means to protect the defendant’s right to a fair trial other than a mere corrective instruction to jurors, which is administered only after the defendant has been exposed to the prejudice caused by the prosecutor’s questioning.

Given the highly prejudicial nature of evidence of a defendant’s prior arrests and convictions, especially when the defendant is questioned about having previously been convicted of the same offense for which he is then being tried, it is difficult to expect that a jury could, even in all earnestness, completely disregard the prosecutor’s improper questioning in reaching its verdict. There are some errors that simply cannot be corrected with a mere corrective instruction to the jury:

“‘[Djespite a corrective instruction, once such statements are made, the damage is hard to undo: “Otherwise stated, one ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.’” Dunn v. United States, 307 F.2d 883, 886 (5th Cir.1962).’ ”

Quinlivan v. State, 579 So.2d 1386, 1389 (Ala.Crim.App.), writ quashed, 596 So.2d 658 (Ala.1991) (quoting United States v. Garza, 608 F.2d 659, 666 (5th Cir.1979)). The prosecutor’s improper questioning in Sparks’s case squarely falls into this category of errors that cannot be rectified by simply instructing the jurors to disregard the prejudice that has already been inflicted.

The City presented evidence to support its DUI charge against Sparks. Nonetheless, a conviction on the DUI charge was by no means a certainty, because in his defense Sparks presented evidence that, if believed by the jury, could have established a reasonable doubt as to his guilt on the DUI charge. Consequently, the prosecutor’s improperly questioning Sparks about his previously having been convicted of DUI resulted in substantial prejudice to his defense. Because this prejudice could not be eradicated by a mere corrective instruction to the jury, the circuit court should have granted Sparks’s motion for a mistrial. However, we reverse only the conviction on the DUI charge, because Sparks admitted that he had run the stop sign. The prosecutor’s improper reference to the former DUI conviction could not have prejudiced Sparks on the charge of running the stop sign, because he admitted committing the act that constitutes that offense, and no issue of intent or degree of culpability was presented.

The judgment of the Court of Criminal Appeals is affirmed as to the conviction for running a stop sign and reversed as to the conviction for driving under the influence of alcohol, and the cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HOOPER, C.J., and SHORES, KENNEDY, and LYONS, JJ., concur.

COOK, J., concurs specially.

SEE, J., concurs in part and concurs in the result in part.

MADDOX, J., dissents.

COOK, Justice

(concurring specially).

I concur in the main opinion, and I write specially to address two additional points of concern: 1) Rule 609, Ala. R. Evid., clearly prevented the prosecutor from asking Sparks if he had been previously convicted of misdemeanor DUI. The prosecutor either knew or should have known that Sparks’s previous DUI conviction was a misdemeanor. 2) The improper question inquired into whether Sparks had been convicted of the very same offense for which he was being tried.

I recognize that trial judges commonly cure improper prejudicial questions in the same manner the capable trial judge employed in this case, that is, by a query to the jurors, or a colloquy with them, to determine if they can disregard the improper evidence during their deliberations. By concurring in this case, I am not adopting the position that this procedure is no longer a proper means for addressing this problem. However, because, under the facts of this case, the question was so prejudicial, I agree that Sparks is entitled to a new trial.

SEE, Justice

(concurring in part; concurring in the result in part).

I concur with the majority’s affirmance of Steven Ray Sparks’s conviction for running a stop sign. I concur in the result reached by the majority in reversing Sparks’s conviction for driving under the influence (“DUI”). The prosecutor asked Sparks about a prior DUI conviction during Sparks’s trial for the current DUI offense. I write separately to explain that a mistrial is not necessarily required in every DUI case in which a prosecutor inquires about a prior offense, but only in those cases where the particular facts indicate an egregious prejudice to the defendant.

After the prosecutor asked Sparks about a prior misdemeanor DUI charge to which Sparks had pleaded guilty, Sparks’s counsel objected. The trial court properly sustained the objection. The trial court also instructed the jury to disregard the prosecutor’s question. Sparks moved for a mistrial, claiming he had been unfairly prejudiced by the impact of the prosecutor’s question on his defense. The trial court denied that motion.

A mistrial is an extreme measure that should be taken only when the prejudice cannot be eradicated by instructions or other curative actions of the trial court. Nix v. State, 370 So.2d 1115, 1117 (Ala.Crim.App.), cert. denied, 370 So.2d 1119 (Ala.1979). If an error can be effectively cured by an instruction, a mistrial is too drastic a remedy and is properly denied. Thompson v. State, 503 So.2d 871, 877 (Ala.Crim.App.1986).. “[T]he grant or denial of a ... mistrial is a matter within the sound discretion of the trial court [and] will only be disturbed upon a showing of manifest abuse....” Durden v. State, 394 So.2d 967, 972 (Ala.Crim.App.1980), writ quashed, 394 So.2d 977 (Ala.1981).

Athough generally a trial court’s immediate instruction to the jury to disregard an improper prosecutorial question will cure any potential prejudice, Thompson v. State, 503 So.2d at 877, the question objected to in this case was so prejudicial that the prejudice could not be erased by an instruction. The linchpin of Sparks’s defense to the DUI charge was his assertion that his appearing to be under the influence of alcohol was caused by factors other than intoxication. Sparks testified on direct examination that he failed several field sobriety tests because of physical problems with his knees and because the headlights of the patrol car made it difficult for him to see. Sparks also attributed his appearance of intoxication to a lisp and to sunburn. On cross-examination, the prosecutor effectively dispensed with Sparks’s DUI defense by asking about Sparks’s prior DUI conviction. This question unmistakably impressed upon the minds of the jurors that Sparks’s assertion that he had not been intoxicated was not credible. Under these particular circumstances, a mere curative instruction could not effectively eliminate the prejudice to Sparks. Thus, the trial court abused its discretion when it denied Sparks’s motion for a mistrial. Durden, 394 So.2d at 972; Nix, 370 So.2d at 1117. 
      
      . The record indicates that Sparks had been charged with DUI in January 1993. He subsequently pleaded guilty to the charge.
     
      
      . The record reflects that the prosecutor defended her question to Sparks by calling the circuit court's attention to Ala. R. Evid. 609(a)(1)(B), which states:
      "[E]vidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused-”
      However, the term "such a crime,” as used in Rule 609(a)(1)(B) refers to the categories of crimes set out in Rule 609(a)(1)(A), which states:
      "[E]vidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted
      
      Because Sparks could not have been punished by death or by imprisonment for more than a year for his prior DUI offense, his being impeached by questioning about that offense was clearly not allowed under any part of Rule 609 and the prosecutor's question was therefore improper.
     
      
      . Rule 609, Ala. R. Evid., governs the impeachment of a witness by evidence of the witness’s prior criminal convictions. Rule 609 states in pertinent part:
      "(a) General Rule. For the purpose of attacking the credibility of a witness,
      “(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and
      "(1)(B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
      “(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.”
      (Emphasis added.) Thus, Rule 609 limits impeachment concerning prior criminal convictions to evidence of crimes that either were felonies when they were committed or involved dishonesty or false statements. Because Sparks’s prior DUI conviction was a misdemeanor and did not involve either dishonesty or false statements, the prosecutor’s question was clearly improper.
     