Samuel Talley v. State of Arkansas

ar04-572

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

SAMUEL TALLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-572

March 16, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SECOND DIVISION [CR 03-713]

HONORABLE CHRIS C. PIAZZA,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant's sole issue on appeal in this case is that "the Arkansas accomplice-liability instructions fail to properly instruct on the essential element of intent." More specifically, appellant contends that the jury instructions given on accomplice liability during his jury trial "permit conviction for the actions of others under a strict-liability theory where those others meet the definition of accomplice, regardless of the actions or intent of the defendant. The instructions as drafted also fail to limit the element of intent with regard to the relevant time frame for action." We affirm appellant's convictions because this argument was not properly preserved for appeal.

The relevant portions of the jury instructions were in accordance with the Arkansas Model Jury Instructions - Criminal and provided in pertinent part:

In this case, the State does not contend that Samuel Talley acted alone in the commission of the offenses of aggravated robbery, theft of property, and residential burglary. A person is criminally responsible for the conduct of another when he is an accomplice in the commission of that offense. An accomplice is one who directly participates in the commission of the offense, or who with the purpose of promoting or facilitating the offense, solicits, advises, encourages, or coerces the other person to commit an offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense.

Purpose is defined [sic] a person acts with purpose with respect to his conduct when, or a result thereof [sic], when it is his conscious object to engage in conduct of that nature, or cause such a result.

Samuel Talley is charged with the offense of aggravated robbery. To sustain this charge, the State must prove the following things beyond a reasonable doubt:

First, that with the purpose of committing a theft or resisting apprehension immediately after, Samuel Talley or an accomplice employed or threatened to immediately employ physical force upon another; and

Second, that Samuel Talley or an accomplice was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon.

. . . .

Samuel Talley is charged with the offense of [t]heft of [p]roperty. To sustain this charge, the State must prove beyond a reasonable doubt that Samuel Talley or an accomplice knowingly took or exercised unauthorized control over, or made an unauthorized transfer of an interest in the property of another with the purpose of depriving the owner thereof.

. . . .

Samuel Talley is charged with the offense of residential burglary. To sustain that charge, the State must prove the following things beyond a reasonable doubt. First, that Samuel Talley or an accomplice entered or remained unlawfully in a residential structure located at 1804 Vance Street in Little Rock, and second, did so with the purpose of committing theft therein, aggravated robbery, and did so with the purpose of committing therein aggravated robbery [sic].

By his own admission, appellant made no objection in the trial court to the jury instructions. Arkansas does not have a "plain-error" rule, and it is a fundamental rule that an argument made on appeal will not be considered by the appellate courts if the appropriate objection was not made in the trial court. McGhee v. State, 82 Ark. App. 105,112 S.W.3d 367 (2003). However, in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), our supreme court set forth four very narrow exceptions to the contemporaneous-objection rule: (1) when, in a death-penalty case, a trial court fails to bring to the jury's attention a matter essential to its consideration of the death penalty itself; (2) when a trial judge errs at a time when defense counsel has no knowledge of the error and thus has no opportunity to object; (3) when a trial court has a duty to intervene, without an objection, to correct a serious error, either by an admonition to the jury or by ordering a mistrial; (4) when the admission or exclusion of evidence affects a defendant's substantial rights. Appellant contends that the third exception, which requires a trial court to intervene without an objection to correct a serious error, is applicable in his case. We disagree.

The third Wicks exception has been applied only in rare instances by our supreme court. Finding serious error, the supreme court has reversed and remanded cases in the absence of a contemporaneous objection where the appellants were denied their fundamental right to a jury trial, an error so serious that the trial court should have intervened on its own motion to correct it. See Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992).

The most recent "serious-error" case in which the third Wicks exception was applied was Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), in which the supreme court reiterated that the Wicks exceptions are narrowly construed and rarely applied. The court noted that the third exception had only been applied in cases concerning the waiver of a defendant's fundamental right to a jury trial, see Calnan, supra; Winkle, supra. However, the Anderson court then determined that the argument that the prosecutor improperly shifted the burden of proof during voir dire was also an issue that fell under the third Wicks exception, although the court ultimately determined that no reversible error had occurred.

The present case does not fall within any of the narrow categories recognized under the third Wicks exception. Therefore, because appellant failed to make a contemporaneous objection to the trial court, he failed to preserve his argument for appeal. If appellant believed that there was a problem with the jury instructions, it was his responsibility to raise the issue to the trial court, and failure to do so constitutes waiver of such an argument now on appeal.

Affirmed.

Bird and Roaf, JJ., agree.