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Muhammad v. State

Court of Appeals of Arkansas, Division III

February 13, 2019

MALACHI MUHAMMAD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MONROE COUNTY CIRCUIT COURT [NO. 48CR-16-46] HONORABLE CHALK MITCHELL, JUDGE

          Omar F. Greene, for appellant.

          Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.

          Abramson and Murphy, JJ., agree.

          BRANDON J. HARRISON, Judge

         Malachi Muhammad was convicted of first-degree murder and now appeals, arguing that the circuit court erred in (1) instructing the jury that he would become eligible for parole after serving 70 percent of his sentence, (2) not allowing evidence that the victim possessed a concealed-carry license, and (3) allowing the prosecution to make an improper comment during closing arguments. We affirm.

         Muhammad was charged with one count of first-degree murder in the shooting death of Robert Ewans. He was also charged with possession of a firearm by certain persons.[1] The State alleged that on 22 April 2016, Muhammad shot Ewans after observing him leaving his (Muhammad's) ex-girlfriend's apartment. After a jury trial in October 2017, Muhammad was convicted of first-degree murder and sentenced to thirty-five years' imprisonment. Muhammad filed a timely notice of appeal from his conviction. He does not challenge the sufficiency of the evidence supporting his conviction, so a detailed narrative of the facts is unnecessary. Specific facts related to each point on appeal will, of course, be discussed below.

         I. Parole Eligibility

         During the sentencing phase of the trial, the circuit court instructed the jury as follows.

If you sentence Malachi H.S. Muhammad to be imprisoned for a term of years, he will be eligible for parole or transfer to community punishment supervision after he serves 70 percent of the term of his sentence. This percentage of the imprisonment will not be reduced by the earning of meritorious good time during his imprisonment.

         Muhammad complains that this instruction was incorrect because he had two prior violent-felony convictions (which included aggravated robbery), and pursuant to Ark. Code Ann. § 16-93-609(a) (Repl. 2016), any person who commits murder in the first degree and who has previously been found guilty of aggravated robbery shall not be eligible for release on parole. At oral argument, the State conceded that the jury instruction was incorrect given Muhammad's prior criminal history.

         For his part, Muhammad acknowledges that no objection to the court's instruction was made below. A contemporaneous objection is generally required to preserve an issue for appeal. Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001). Our supreme court has, however, recognized four exceptions to the contemporaneous-objection rule; they are commonly referred to as the Wicks exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The four exceptions are (1) when the circuit court fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) when defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) Ark. R. Evid. 103(d) provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention of the circuit court. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002) (citing Wicks, supra).

         In his brief, Muhammad argues all the Wicks factors. But he abandoned all but one of them during oral argument. We will therefore concentrate on the one remaining Wicks factor in play, which is the third one. The third factor is met when there is an error so flagrant and so highly prejudicial in character that a circuit court was duty bound to instruct the jury correctly whether or not an objection was made. And on this factor, Muhammad simply states that the circuit court failed to "catch" the error and to "intervene in correcting it."[2]

         In response, the State cites Douglas v. State, 2017 Ark. 70, 511 S.W.3d 852, in which our supreme court held that the third Wicks factor ...


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