FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-16-295]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Law Group, by: Q. Byrum Hurst, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
MARK KLAPPENBACH, Judge
Jermaine Levert Hayes pleaded guilty to the first-degree
battery of Kjuan Doucet that was committed on April 3, 2016.
Appellant and Doucet were involved in a romantic rivalry over
Ashley Stell, and appellant admittedly "slit
[Doucet's] throat" with a serrated knife.
Appellant's sentence was decided by a jury, and it
sentenced him to twenty years in prison and a $10, 000 fine.
Appellant argues that the trial court abused its discretion
by not instructing the jury to consider his proffered
alternative-sentence jury instruction and that he suffered
resulting prejudice. We affirm.
Code Annotated section 16-97-101(4) (Repl. 2016) provides
that the trial court, in its discretion, may instruct the
jury that counsel may argue as to alternative sentences for
which the defendant may qualify. The jury, in its discretion,
then may make a recommendation as to an alternative sentence;
this recommendation, however, shall not be binding on the
court. Ark. Code Ann. § 16-97-101(4). The decision to
allow alternative sentencing is reviewed for an abuse of
discretion. Hoodenpyle v. State, 2013 Ark.App. 375,
428 S.W.3d 547. This standard of review is a high threshold,
requiring that a trial court not act improvidently,
thoughtlessly, or without due consideration. Id.
Mechanical imposition of the jury's recommended
sentences, or an unwavering court policy refusing to instruct
the jury on alternative sentences with respect to certain
offenses, is not an exercise of discretion. Rodgers v.
State, 348 Ark. 106, 71 S.W.3d 579 (2002); Squyres
v. State, 2015 Ark.App. 665, 476 S.W.3d 839.
case, before evidence was presented to the jury on
sentencing, jury instructions were discussed by the trial
court and the attorneys. At that time, appellant's
attorney asked, "Are you going to consider allowing a
probation instruction?" The trial court replied,
"Probably not. I usually wait until the end to
see." Defense counsel stated that he had brought such an
instruction and would wait until the end to bring it up
testified and surveillance video of the attack was played for
the jury. Before the jury was instructed and closing
arguments were given, appellant's attorney requested that
the jury be given "the probation instruction." The
trial court denied the request, and appellant's attorney
replied, "Okay." The trial court then noted that
defense counsel did not have anyone present to talk about
probation and parole other than defense counsel, which was
tantamount to the defense attorney testifying and an improper
basis for the jury's knowledge of that subject. The trial
court ended with remarks that this jury instruction was not
proper and would not be allowed. Defense counsel proffered
its proposed instruction based on AMI Crim. 2d 9111, which
informed the jury that it could recommend probation or a
suspended sentence but that any recommendation would not be
binding on the trial court.
argues on appeal that the trial court failed to exercise its
discretion or abused its discretion when it refused to
instruct the jury on alternative sentences. We disagree.
Authorizing a particular form of punishment is a far cry from
mandating that it be considered, or that the jury be
instructed that it be considered in a given case.
Squyers, supra; Dale v. State, 55
Ark.App. 184, 935 S.W.2d 274 (1996). The permissive tone of
the language in Arkansas Code Annotated section 16-97-101(4)
is unmistakable in that the trial court has discretion and
"may" give this instruction.
record reveals, this jury instruction was requested at the
outset of this sentencing trial, the trial court replied that
it usually waited until the end of such proceedings to
consider it, and when requested at the end, the trial court
rejected the instruction. The record demonstrates that the
trial court exercised its discretion in this instance, and we
see no abuse of that discretion.
appellant cannot demonstrate that he was prejudiced by the
trial court's refusal to instruct the jury to consider
alternative sentencing. Absent a showing of prejudice, we
will not reverse. Miller v. State, 97 Ark.App. 285,
248 S.W.3d 487 (2007). A person convicted of Class B felony
first-degree battery is subject to punishment of five to
twenty years in prison, up to a $15, 000 fine, or both.
See Ark. Code Ann. § 5-4-201(a)(1), §
5-4-401(a)(3), and § 5-13-201(c)(1) (Repl. 2013). In
closing arguments, appellant's attorney argued for a
fine-only sentence as the consequence of appellant's
having admittedly "slit" a man's throat. The
jury chose to sentence him to the maximum prison term for
first-degree battery, plus a $10, 000 fine, just shy of the
$15, 000 maximum. It strains credulity to argue that the jury
would have recommended that appellant be sentenced to
probation or a suspended sentence had it been given the
option. Compare Akers v. State, 2015 Ark.App. 352,
464 S.W.3d 483; Bell v. State, 2014 Ark.App. 458.
conclude that there was no abuse of discretion by the trial
court in refusing to instruct the jury on the alternative
sentence of probation and that appellant failed to establish
any prejudice from its omission.
Harrison and ...