Page:Wicks v. State, 270 Ark. 781 (1980).pdf/4

784 "Q. Have you told anybody else about the rape, other than the police and your daughter?

A. Well, my boss knows why I'm here.

Q. I mean before you reported it?

A. No. I told him what I had to leave for when I went to Little Rock, for my polygraph test."

After a discussion in chambers, with defense counsel candidly conceding that the remark was spontaneous and not planned, the court denied the motion for a mistrial and promptly instructed the jury to disregard the statement about a polygraph test. We perceive no error. True, the result of a polygraph test is ordinarily not admissible, but it does not follow that every reference to such a test calls for a mistrial, any more than that is so when the court instructs the jury to disregard a statement based on hearsay. A mistrial is such a drastic measure that it is warranted only if justice could not be served by going on with the trial. Foots v. State, 258 Ark. 507, 528 S.W.2d 135 (1975). Here we hold that the admonition to the jury was a sufficient corrective.

Fourth, after the entry of judgment the court, after an evidentiary hearing, denied a motion for a new trial. The court reporter states under oath in a supplemental transcript that the case was reported by another reporter and that the notes for the post-trial hearing "are illegible and cannot be transcribed." The appellant, without even asserting that the motion for a new trial had merit, asks that the case be remanded for a reconstruction of the record or a new hearing.

The request must be denied, for the appellant is ignoring established procedure. He has the burden of supplying a transcript of the proceedings below. Graham v. State, 264 Ark. 489, 572 S.W.2d 385 (1978). That burden includes responsibility for obtaining a transcript or its reconstruction. Graham v. State, 264 Ark. 804, 575 S.W.2d 149 (1979). The correct procedure to obtain what used to be called a bystander's bill of exceptions is specified in detail in Appellate Procedure Rule 6(d) (1979). The appellant has apparently made no effort to pursue his available remedy and is not entitled to different relief.