APPEAL
FROM THE UNION COUNTY CIRCUIT COURT [NO. 70CR-17-27]
HONORABLE HAMILTON H. SINGLETON, JUDGE
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.
RAYMOND R. ABRAMSON, JUDGE
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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