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 ...