John Melvin McDonald v. State of Arkansas

ar05-481

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JOHN MELVIN MCDONALD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-481

FEBRUARY 8, 2006

APPEAL FROM THE COLUMBIA

COUNTY CIRCUIT COURT

[NO. CR-04-7]

HONORABLE LARRY CHANDLER,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant John Melvin McDonald was convicted in a jury trial of Class Y felony kidnapping, as well as aggravated assault and first-degree terroristic threatening, which are Class D felonies. He was sentenced to ten years in prison for the kidnapping conviction, and received no prison time for the remaining convictions. Mr. McDonald now appeals, arguing that the trial court erred in admitting prejudicial testimony about prior uncharged conduct, and further erred in failing to give proper jury instructions on the kidnapping charge. Mr. McDonald acknowledges that these arguments were not made to the trial court, but contends that they can be raised for the first time on appeal as they constitute exceptions to the contemporaneous-objection rule as outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Alternatively, Mr. McDonald argues that Arkansas' adherence to a "no plain error rule" is unconstitutional because it denies criminal defendants a fair and impartial trial as guaranteed by the Sixth Amendment of the United States Constitution and Article 2, section 10 of the Arkansas Constitution.1 We affirm.

Kenneth Wayne O'Dell was the first witness to testify for the State. Mr. O'Dell stated that he lives in a mobile-home park and that his residence is two trailers removed from Mr. McDonald's. On the evening of October 31, 2003, Mr. O'Dell was at home when the victim, Sharon Wren, came to his door and asked him to call the police. Mr. O'Dell complied with her request, and the police arrived soon thereafter.

Officer Kyle Gaines responded to the call, and testified that Ms. Wren was "very upset and crying and scared to death." Officer Gaines accompanied Ms. Wren back to Mr. McDonald's residence, where Mr. McDonald had recently returned in Ms. Wren's truck. According to Officer Gaines, Ms. Wren was terrified and did not want to exit the patrol car, but eventually got out while being shielded behind him.

Officer Mike McWilliams arrived at Mr. McDonald's trailer and found Ms. Wren to be visibly shaken. He could not remember the details of his conversation with Ms. Wren, but she said that a weapon was involved. Officer McWilliams observed no physical injuries, and after a brief conversation with Mr. McDonald, he did not think Ms. Wren was in danger. The officers got Ms. Wren's truck keys from Mr. McDonald and she left the premises. Several days later, a warrant was issued for Mr. McDonald's arrest based on additional information provided by Ms. Wren.

Thomas Lynch testified that Mr. McDonald was his roommate sometime in the late 1990s. Mr. McDonald and Ms. Wren were dating at the time, and Mr. Lynch recounted an occasion when Ms. Wren was supposed to arrive at their house at a particular time but was late. According to Mr. Lynch, when Ms. Wren finally arrived Mr. McDonald was very angry and "jumped off the porch and went to her and took her to the ground." Mr. Lynch stated that Mr. McDonald had a look in his eyes that scared him, and that Mr. McDonald held Ms. Wren on the ground while she struggled to get up. Mr. McDonald was asking Ms. Wren where she had been while she told him he was hurting her, and Mr. Lynch pleaded with Mr. McDonald to let her up. Mr. McDonald eventually allowed Ms. Wren to get up. On cross-examination, Mr. Lynch testified that his wife was dating Mr. McDonald at the time of the trial, and that on the night before the trial he told his wife he would not testify against Mr. McDonald if she would return some tools and other items that belonged to him.

Ms. Wren testified that she had dated Mr. McDonald for six years and that their relationship was stormy. She stated that on October 31, 2003, she drove to Mr. McDonald's trailer and they were supposed to go to his uncle's funeral at 2:00 p.m. When she arrived, she went to use the bathroom and Mr. McDonald started ranting and raving about "how I had messed up his life and how I'd be sorry that I had ever come there that day." Ms. Wren stated that Mr. McDonald broke down the bathroom door, causing the bathroom mirror to shatter, and accused her of sleeping with other men. Then Mr. McDonald briefly left and returned with a shotgun, pointed it at Ms. Wren's head, and said, "I'm going to kill you, bitch."

Ms. Wren testified that she could not leave the trailer, and that Mr. McDonald subsequently took her for a ride in her truck. He had the gun with him, and drove past a gas well where his uncle had been found dead, and stated, "That's where I ought to kill you." Ms. Wren testified that Mr. McDonald then drove to a cemetery and told her to pick out her plot.

Upon arriving back at the trailer, Mr. McDonald crammed some sort of pill down Ms. Wren's throat, causing her to fall asleep on the couch. She later woke up and asked what day it was, and Mr. McDonald responded, "It's the day they buried my uncle and the day I'm going to kill you." Sometime later, Ms. Wren thought Mr. McDonald had gone to the bedroom, and she ran out of the trailer. Shortly after leaving, she heard her truck start and hid behind a barrel. When she heard her truck going down the road, she ran to Mr. O'Dell's trailer for help.

Mr. McDonald testified on his own behalf, and stated that on the day of his uncle's funeral Ms. Wren was supposed to pick him up at 11:30 a.m. to attend a family luncheon. However, she did not show up until almost 2:00 p.m., and it was too late to make it to the funeral on time. Mr. McDonald acknowledged that this made him angry and that he kicked in the door while Ms. Wren was using the bathroom, causing the mirror to shatter. Mr. McDonald stated that at that time Ms. Wren acted as if she had trouble breathing and was having a heart attack, so he drove her to the emergency room. Mr. McDonald testified that Ms. Wren refused to go inside the hospital when they arrived, so he took her back home and she rested on the couch. Mr. McDonald stated that, later that evening, Ms. Wren gave him money to buy cigarettes and he left in her truck. When he returned the police were there. Mr. McDonald denied ever pointing a gun at Ms. Wren or threatening to kill her, and maintained that he did not restrain her in any way.

Mr. McDonald's first point on appeal is that the testimony of Mr. Lynch about his prior assault of Ms. Wren should not have been admitted. He contends that this testimony was inadmissible pursuant to Ark. R. Evid. 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Mr. McDonald contends that evidence of his prior conduct was only offered to show that he was a person of bad character. Moreover, Mr. McDonald asserts that the testimony was inadmissible because any relevance was substantially outweighed by the danger of unfair prejudice under Ark. R. Evid. 403. He notes that the trial court sustained the State's objection to evidence of Mr. Lynch's prior engagements in domestic abuse, and asserts that this resulted in inconsistent rulings.

Mr. McDonald's next point on appeal is that even if his kidnapping conviction is affirmed, this case should be remanded for resentencing because the trial court failed to properly instruct the jury. The jury was given an instruction in accordance with Arkansas Code Annotated section 5-11-102(a)(4) and (5) (Repl. 1997), which provides in pertinent part:

(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere with his liberty with the purpose of:

. . . .

(4) Inflicting physical injury on him[;] or

(5) Terrorizing him[.]

However, no instruction was given permitting the jury to find that Mr. McDonald showed by a preponderance of the evidence that he voluntarily released Ms. Wren alive and in a safe place prior to trial. Such a finding would have reduced the classification of the offense pursuant to Ark. Code Ann. § 5-11-102(b) (Repl. 1997), which provides:

Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.

Mr. McDonald argues that the omitted mitigating instruction should have been given because it was warranted by the evidence. In this regard, he submits that even if he kidnapped Ms. Wren, he left her alive and in a safe place when he drove away from his trailer, thereby voluntarily releasing her.

Mr. McDonald concedes that he failed to raise either of the above arguments at the trial level. Nonetheless, he contends that both arguments are properly before this court because they fall under exceptions to the contemporaneous-objection rule as set out in Wicks v. State, supra. Specifically, Mr. McDonald argues that both arguments invoke the application of the third Wicks exception, which "relates to the trial court's duty to intervene, without an objection, and correct a serious error either by admonition to the jury or by ordering a mistrial." Wicks v. State, 270 Ark. at 786, 606 S.W.2d at 369. Mr. McDonald also contends that his first argument pertaining to the trial court's wrongful admission of Mr. Lynch's prejudicial testimony is covered by the fourth Wicks exception, which is premised on Ark. R. Evid. 103(d), which provides, "Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court."

We hold that the third Wicks exception has no application to this case. This exception has been applied only in rare instances by our supreme court. Finding serious error, the supreme court has reversed and remanded in the absence of a contemporaneous objection where the appellant was denied his right to a jury trial. See Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). More recently, in Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), the supreme court reiterated that the Wicks exceptions are narrowly construed, but found that the third exception was applicable to an argument that the prosecutor improperly shifted the burden of proof during voir dire. The errors complained of in the present case do not fall within any of the narrow categories recognized under the third Wicks exception.

Nor are we persuaded that the fourth Wicks exception has any application. While Mr. McDonald contends that this exception covers the prejudicial and inadmissible testimony of Mr. Lynch, we disagree. In a similar case, Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998), the appellant attempted on appeal to challenge the admissibility of the testimony of a witness under Ark. R. Evid. 403 and 404(b) despite making no contemporaneous objection at trial, and the supreme court held that this was not permissible under the fourth Wicks exception. In so doing, the supreme court noted that the language of Ark. R. Evid. 103(d) does not authorize review of plain error, and that the court in Wicks v. State, supra, stated that the fourth exception is only a possible exception that might arguably be asserted on the basis of the rule. We are not aware of a single time when our supreme court invoked the fourth exception. Accordingly, we decline to apply it here.

We note that Mr. McDonald also relies on Griffin v. State, 2 Ark. App. 145, 617 S.W.2d 21 (1981), for the proposition that it was incumbent on the trial court, even without a request, to instruct the jury on the omitted kidnapping instruction now in dispute. In that case the mitigating instruction was not given to the jury, and even though no request for the instruction was made by the appellant at trial, we nonetheless reversed and remanded for resentencing. We overlooked the lack of an objection to the verdict form because the appellant moved for a directed verdict challenging the sufficiency of the evidence as to the higher classification of kidnapping, and there was insufficient evidence to support that charge based on the victim's testimony that she was voluntarily released alive and in a safe place.

Mr. McDonald's reliance on Griffin v. State, supra, is misplaced for two reasons. Even if we were to treat this issue as one involving the sufficiency of the evidence, it, too, would not be preserved for review because the specific argument raised in this appeal was not made in Mr. McDonald's directed-verdict motion. Rule 33.1 of the Arkansas Rules of Criminal Procedure now provides that, in order to preserve an issue pertaining to the sufficiency of the evidence, a defendant shall specifically state the grounds in his directed-verdict motion. Additionally, and in contrast to the evidence in Griffin v. State, supra, there was testimony from which the jury could have reasonably concluded that Mr. McDonald did not release the victim in a safe place as he claims, but rather that Ms. Wren escaped. Thus, Mr. McDonald has provided no basis to circumvent the general rule that objections as to verdict forms and jury instructions must be asserted in the trial court before they will be considered on appeal. See Coulter v. State, 269 Ark. 537, 597 S.W.2d 814 (1980).

Mr. McDonald's remaining argument is that, even if the Wicks exceptions do not apply to this case, we should reach the merits of his points because Arkansas' failure to subscribe to a plain-error rule is unconstitutional. Mr. McDonald cites Rule 52(b) of the Federal Rules of Criminal Procedure, which provides, "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Mr. McDonald asserts that Arkansas remains within a small minority of jurisdictions that refuses to recognize the plain error rule, and directs us to an article written by Professor Morton Gitelman, where he writes:

The continued rigid adherence to the no-plain error rule in Arkansas is inconsistent with jurisprudential developments in most jurisdictions, with the principle of Rule 103(d) of the rules of evidence, and with common sense. The purpose of appellate review in both civil and criminal cases is to correct errors of law. If those errors are plain on the face of the record, and if the failure to object in the trial court was not clearly a matter of trial strategy, then failure to consider those errors on appeal perpetuates an injustice, one that is visited on the client, not the attorney who failed to raise a proper objection.

The Arkansas Supreme Court has control over the rules of evidence and their interpretation. The court should reexamine the no-plain error rule and provide that plain errors of trial court judges will be reviewed by higher courts, regardless of the attorney's failures to object at the time of the error.

Morton Gitelman, The Plain Error Rule in Arkansas - Plainly Time for a Change, 53 Ark. L.

Rev. 205, 228-29 (2000). Mr. McDonald urges that if we fail to reach the merits of his assignments of error on appeal, this will result in the denial of a fair and impartial trial as guaranteed by the Sixth Amendment of the United States Constitution and Article 2, section 10 of the Arkansas Constitution.

For more than twenty years the Arkansas Supreme Court has consistently maintained that we have no plain error rule, and that absent very narrow exceptions it will not consider a possible error unless an objection has been made in the trial court. See, e.g., Harris v. State, , Ark. , S.W.3d (October 13, 2005); State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000); Wicks v. State, supra. We lack the authority to overrule these, or any other decisions by our supreme court. See Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999). Therefore, we must decline Mr. McDonald's invitation to declare our present rule unconstitutional.

It was Mr. McDonald's responsibility to raise the assignments of error he now raises on appeal to the trial court, and because he failed to do so his arguments are not preserved for review. Accordingly, we affirm without reaching the merits.

Affirmed.

Gladwin and Crabtree, JJ., agree.

1 Upon filing his brief, Mr. McDonald moved to transfer this case to the supreme court on the basis that it involves a significant constitutional issue needing the overruling of precedent. The supreme court denied the motion.