A Southeast Arkansas man sentenced in the October 2010 deaths of a woman and her unborn child and injuries to two other women has lost his appeal to the Arkansas Supreme Court.

Mark David Johnson, 50, of Hamburg, drove his 2002 Dodge Ram into his former wife, Heather Johnson’s vehicle, killing Austin Nichole Paccio and her unborn daughter, Adaleigh Marie Paccio, and injuring his former wife and Shelly Paccio. The crash occurred on Arkansas 52 about two miles northeast of Crossett.

Mark David Johnson

Johnson was granted a change of venue to Drew County due to widespread opinions about the case in Ashley County and subsequently negotiated a plea in which he would plead guilty and be sentenced by a Drew County jury. The jury handed down two life sentences for the first-degree murder of Austin Nichole and Adaleigh Marie Paccio, a 30-year sentence for first-degree attempted murder of Heather Johnson and a 20-year sentence for the first-degree battery of Shelly Paccio.

He appealed those sentences to the Arkansas Supreme Court arguing that Circuit Judge Don Glover erred in admitting certain evidence in the sentencing phase and by failing to grant a mistrial after certain comments were made by the prosecutor during his closing statement.

The state Supreme Court was not persuaded by Johnson’s arguments on appeal.

Testifying on behalf of the state at Johnson’s November 2012 sentencing trial, Heather Johnson said she was in the process of divorcing Johnson at the time of the crash because she had caught him molesting her minor daughter.

On appeal, Johnson argued that Judge Glover erred when he allowed that evidence to be presented to the jury.

However, his argument was not preserved with a contemporaneous objection.

Although Johnson filed a pretrial motion regarding this testimony, and the objection was discussed at a pretrial hearing, Glover never gave a definitive ruling. Glover explained that it was generally the court’s position that the sentencing phase is much different from the guilt phase and that sufficient testimony would be allowed to show motive, purpose, and “those kinds of things.” However, Glover specifically said should a question be asked which the parties found objectionable they could make their objections at that time.

Johnson failed to object and make his record at the time that Heather Johnson testified about the alleged molestation.

“A defendant’s failure to make a contemporaneous objection to testimony prevents him from asserting on appeal any error on the part of the trial court for admitting the evidence,” Arkansas Supreme Court Associate Justice Paul Danielson wrote in Thursday’s opinion.

For his second point on appeal, Johnson argued that Glover erred by failing to grant him a mistrial because during the State’s closing argument, comments made by the prosecuting attorney equated to discussing the defendant’s choice not to testify. The state, however, says the comments were simply an observation that none of the testimony presented demonstrated remorse on behalf of Johnson and were made in response to the defense claiming that Johnson exhibited remorse and had accepted responsibility for the crime.

The Arkansas Supreme Court agreed with the state that it was not a comment in reference to Johnson not testifying.

” … the comment here did not refer to Johnson’s failure to testify. Rather, it referred to the State’s observation that Johnson never expressed remorse to the witnesses that testified, not that he failed to express remorse to the jury,” Danielson wrote.

“The State even questioned one witness specifically about Johnson’s behavior in the moments right after the collision,” Danielson said. “The pawn-shop owner, Michael Keith Matthews, knew Johnson and was at the scene of the collision. Matthews testified that he was outside helping in the moments after the collision. His testimony was that Johnson, while in his presence, had not done anything to indicate he was concerned for the passengers in the vehicle—did not ask about them nor did he personally go over to them. The State had a right to comment on this in closing argument.”

Danielson also pointed out that a mistrial is a drastic remedy.

“We have made it clear that a mistrial is a drastic remedy that should only be granted when justice cannot be served by continuing at trial, or when the error cannot be cured by an instruction or admonishment,” Danielson wrote. “We have also explained that some leeway is given to counsel in closing argument and that counsel are free to argue every plausible inference which can be drawn from the testimony.”