Before Steadman, Reid and Washington, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. John H. Bayly, Jr., Trial Judge)
Appellant was convicted of felony malicious destruction of property for setting his father's house on fire. D.C. Code § 22-403 (1996 Repl.). During cross-examination, appellant's sister blurted out that appellant had set fires before in that same house. On appeal, he contends that the trial court erred in refusing to grant a mistrial or give an immediate instruction to the jury. The trial court did give a corrective instruction the next day at the end of the government's case. We agree with appellant that in the special circumstances of this case, an immediate cautionary instruction was required if a mistrial was not granted.
The government presented evidence that appellant asked two of his sisters, one of whom, Gloria Hill, lived with their father in a row house, for some money to take his daughter on a field trip. Although both declined, appellant ended up in his father's home with Ms. Hill. After going upstairs into a bedroom at the rear of the house with a cigarette in hand, appellant returned and asked Ms. Hill to take a walk with him. Approximately ten minutes later, Ms. Hill returned to the home alone, only to find that the house was on fire, with smoke emanating primarily from the second floor.
The relevant testimony involves the cross-examination of Denise Coleman, another of appellant's sisters, in which defense counsel began probing the witness regarding her potential bias against appellant:
Q: You were very upset that their house had been burned down, right?
A: Oh yes, I was. Q : When your sister Gloria told you that she thought that Ronald had something to do with that, you became very upset with your brother Ronald, right?
A: Yes, I became upset with Ronald because he set fires before in our house. (emphasis added).
After the comment regarding appellant previously setting the house on fire came out, defense counsel immediately objected and asked for a mistrial on the ground that the statement was non-responsive and highly prejudicial. The following colloquy took place:
Ms. Chutkan: Your honor, I believe that is definitely grounds for a mistrial. Your honor, I very strongly would move for a mistrial.
The Court: I will deny your motion. I will deny the motion.
Ms. Chutkan: . . . If the Court is going to deny my motion for a mistrial, I would like an instruction that the last remark was improper ...