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Fields v. State

Court of Appeals of Arkansas, Division I

March 13, 2019



          James Law Firm, by: Michael Kiel Kaiser, Megan M. Wilson, and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.


         Robert Jamar Fields was convicted by a Union County Circuit Court jury of one count of aggravated robbery, three counts of aggravated assault with two child enhancements, one count of terroristic act, and one count of first-degree battery with a child enhancement. He was sentenced to consecutive sentences totaling fifty-four years' imprisonment in the Arkansas Department of Correction.

         On appeal, Fields argues the following five points: (1) the circuit court clearly erred in denying his motion in limine to exclude the pretrial identification of him made by the victim, Jennifer New; (2) the circuit court's denial of his Batson challenge was against the preponderance of the evidence; (3) the circuit court failed to control the prosecutor's closing argument during sentencing, "allowing him to misstate the law regarding parole eligibility to the jury"; (4) the circuit court failed to exercise discretion in sentencing him to consecutive terms of imprisonment; and (5) the circuit court abused its discretion in denying his petition for writ of error coram nobis. We affirm.

         On July 25, 2017, one day before trial, Fields filed a motion in limine to exclude victim Jennifer New's pretrial photo identification of him as the person who had shot her. Before trial, the circuit court conducted a brief hearing on the motion. The circuit court denied the motion, ruling that the proffered evidence was hearsay and that the objections went to New's credibility. Fields argues that the circuit court clearly erred in denying his motion in limine, but his argument is not preserved for appeal. Issues raised for the first time on appeal, even constitutional ones, will not be considered because the circuit court never had an opportunity to rule on them. E.g., London v. State, 354 Ark. 313, 320, 125 S.W.3d 813, 817 (2003).

         New's identification of Fields from the photo she saw on the internet and subsequently verified for police is not preserved for appellate review because Fields did not object to New's in-court identification of him based on the alleged taint from the photo identification. See, e.g., Jackson v. State, 318 Ark. 39, 41, 883 S.W.2d 466, 468 (1994); Goins v. State, 318 Ark. 689, 699-700, 890 S.W.2d 602, 607 (1995).

         Fields's motion in limine did not ask for exclusion of any prospective in-court identification. At trial, New first identified Fields in the courtroom based on having seen him during commission of the crimes, without mentioning the online mug shot or the two photos shown to her by police when she contacted them after having seen his photo online. New testified at a later point in trial about seeing Fields's photo on the internet and also identifying it from photos shown to her by police. Fields's only objection to the in-court identification was that the prosecutor "need[ed] to lay more groundwork"-he did not relate his objection to any of the grounds from his motion in limine or allege that her in-court identification was tainted by her prior photo identification.[1] Thus, because Fields's suppression argument was not preserved by an objection alleging that the in-court identification was tainted by the previous photo identification, the argument is not preserved for our review.

         Fields's second point on appeal is that the circuit court clearly erred by rejecting his Batson challenge after two African-American women were struck from the jury by the prosecutor. See Batson v. Kentucky, 479 U.S. 79 (1986). The prosecutor noted that more than one African-American was already on the jury and then gave a race-neutral explanation for the strike. Fields did not present any further evidence or argument to support his position, and the Batson challenge was denied.

         In MacKintrush v. State, 334 Ark. 390, 398-99, 978 S.W.2d 293, 296-97 (1998), the Arkansas Supreme Court set forth the three-step process to be followed in challenges under Batson. First, the strike's opponent must present facts to raise an inference of purposeful discrimination; second, if the inference is established, the proponent of the strike must present a race-neutral explanation for the strike; and third, if a race-neutral explanation is given, the circuit court must decide whether the strike's opponent has proved purposeful discrimination. MacKintrush, 334 Ark. at 398-99, 978 S.W.2d at 296-97. In the third step, the strike's opponent must persuade the circuit court that the expressed motive of the striking party is not genuine but rather is the product of discriminatory intent. Id. at 399, 978 S.W.2d at 296. The burden of persuasion establishing purposeful discrimination never leaves the opponent of the strike. Id. at 398, 978 S.W.2d at 296. "[F]ollowing step two, it is incumbent upon the strike's opponent to present additional evidence or argument, if the matter is to proceed further." Id. at 399, 978 S.W.2d at 297.

         On appeal, a circuit court's ruling on a Batson objection is reversed only when the court's findings of fact are clearly against the preponderance of the evidence. E.g., Holder v. State, 354 Ark. 364, 380, 124 S.W.3d 439, 450 (2003). In making Batson rulings, an appellate court accords some measure of deference to the circuit court, as the circuit court is in a superior position to make the determinations because it has the opportunity to observe the parties and jurors and determine their credibility. E.g., Holder, 354 Ark. at 380, 124 S.W.3d at 450-51. Unless discriminatory intent appears in the striking party's explanation, the reason can be considered neutral. E.g., id., 124 S.W.3d at 450-51. This explanation must be more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. E.g., MacKintrush, 334 Ark. at 398, 978 S.W.2d at 296. The explanation need not be persuasive or even plausible; indeed, it may be silly or superstitious. E.g., id., 978 S.W.2d at 296. "[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province." Hernandez v. New York, 500 U.S. 352, 365 (1991). In the instant case, Fields's counsel made a Batson challenge to the prosecutor's striking an African-American juror, stating that the juror had said nothing that would cause her to be disqualified. The prosecutor responded by noting that two or more African-American jurors already were seated and that he had exercised two peremptory challenges against white jurors and two against African-American jurors, including the challenge at issue. The circuit court stated that was not a race-neutral reason, and the prosecutor then provided one, explaining that the prospective juror had hung onto defense counsel's every word during voir dire. The circuit court was satisfied with that response. Fields did not offer any argument or evidence that the race-neutral reason stated for the strike was pretextual or incredible, and thus he failed to meet his burden of proof. E.g., MacKintrush, 334 Ark. at 399, 978 S.W.2d at 297. In fact, defense counsel pronounced the jury "good" for the defense at the end of jury selection. Under our standard of review, we hold that the circuit court's ruling was not clearly against the preponderance of the evidence when it denied Fields's Batson challenge.

         Fields next argues that "[t]hroughout closing argument during the penalty phase, prosecutor Rogers repeatedly misstated the law regarding parole eligibility, instructing the jury that Fields would only serve the minimum sentence allowed by law on each charge rather than merely being parole-eligible at those times," and the circuit court erred by failing to strike this part of the State's sentencing-phase closing arguments. However, Fields's counsel did not object to any portion of the prosecutor's closing argument; therefore, the issue is not preserved for appeal. E.g., Holt v. State, 2011 Ark. 391, at 15, 384 S.W.3d 498, 508 (argument that prejudice resulted from prosecuting attorney's misstating facts regarding parole eligibility during closing argument at end of sentencing phase was not preserved because there was no objection at trial).

         Fields argues that it falls under the third Wicks exception, which entails the "trial court's duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial." Wicks v. State, 270 Ark. 781, 786, 606 S.W.2d 366, 369 (1980). The circuit court instructed the jury regarding sentencing, parole, transfer, and meritorious good time just before the closing argument. The prosecuting attorney began by saying, "When you're talking about transfer eligibility we're talking about parole. It's a term we've all heard for years and years about when ...

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