FROM THE MONROE COUNTY CIRCUIT COURT [NO. 48CR-16-46],
HONORABLE CHALK MITCHELL, JUDGE
Greene, for appellant.
Rutledge, Atty Gen., by: David L. Eanes, Jr., Asst Atty
Gen., for appellee.
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.
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. The State
alleged that on 22 April 2016, Muhammad shot Ewans after
observing him leaving his (Muhammads) ex-girlfriends
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.
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.
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 Muhammads prior criminal
his part, Muhammad acknowledges that no objection to the
courts 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 66 (1980).
The four exceptions are (1) when the circuit court fails to
bring to the jurys 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