Curative instructions and mistrial motions

In State v. Ferguson, Ferguson was convicted of murder and possession of a firearm during the commission of a violent crime. During the second day of trial, in response to a question about Ferguson’s behavior at the time of the shooting, Ferguson's Girlfriend responded that Ferguson allegedly told her she “was next.” Defense counsel asked the court to strike Girlfriend’s response as unresponsive to the question asked. Ferguson’s counsel requested a mistrial, contending the court should strike Girlfriend’s answer because the State did not notify the defense, in writing and during discovery, about Ferguson’s alleged statement. The court sustained Ferguson’s objection, ruling Girlfriend’s answer to the solicitor’s question was unresponsive. However, the court denied Ferguson’s motion for a mistrial, finding a curative instruction to the jury would overcome any potential prejudice to Ferguson. The Court of Appeals affirmed the denial of the mistrial motion.

We find the trial court properly exercised its discretion in deciding to give a curative instruction rather than granting Ferguson’s motion for a mistrial. We additionally find the court cured any potential prejudice to Ferguson with its instruction to disregard Girlfriend’s response to the question posed by the solicitor. Here, as in Edwards, the trial court’s curative instruction was simple, and the court refrained from reiterating or emphasizing the unresponsive answer. Accordingly, we find the instruction cured any potential prejudice, and we hold the trial court properly exercised its discretion in denying Ferguson’s motion for a mistrial.

This seems like a close call. On a statment such as "you are next," if that was not supposed to come in, I don't see how a curative instruction does any good at all. There is no way to put the genie back in the bottle. The court should have granted the mistrial motion.