The opinion
ROBERT L. BROWN, Justice, concurring.
I concur in the result but I would analyze White’s Confrontation Clause argument under Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980). In the instant case, White did not object to Detective Cannon’s testimony about what the nine-year-old victim’s mother thought about White’s abuse of her son. This testimony was disallowed during the guilt phase of the trial but allowed during the sentencing phase. The trial took place on March 15-17, 2011. During his trial, White did not mount an objection based on the Confrontation Clause.
| nThe Wicks decision provides four exceptions to our plain-error rule that requires a contemporaneous objection to preserve an issue for review:
(1) when the trial court fails to bring the jury’s attention to a matter essential to its consideration of the death penalty itself; (2) when the 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 to the trial court.
Adams v. State, 2009 Ark. 375, at 7 , 326 S.W.3d 764, 768 (citing Anderson v. State, 353 Ark. 384 , 108 S.W.3d 592 (2003)); see also Wicks, 270 Ark. 781 , 606 S.W.2d 366 .
This court formerly disallowed Confrontation Clause arguments in the sentencing phase of a trial. This changed with our decision in Vankirk v. State, 2011 Ark. 428 , 385 S.W.3d 144 . In Vankirk, we held, for the first time, that we would recognize a Confrontation Clause challenge in the sentencing phase. That decision was handed down on October 13, 2011, nearly seven months after White’s trial.
I conclude that a Confrontation Clause issue is a structural issue, which equates to burden of proof, trial by jury, and the presumption of innocence. The Sixth Amendment to the United States Constitution protects the right to confront witnesses as well as the right to a jury trial. As the Supreme Court of the United States has said, “[Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with [a] jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford v. Washington, 541 U.S. 36, 62 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).
|12In short, I believe Wfliite’s Confrontation Clause argument must be considered under Wicks as a matter affecting the substantial rights of the defendant. See also Ark. R. Evid. 103(d) (2011) (“Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.”). Nevertheless, I do not believe the Confrontation Clause error constitutes reversible error because it was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (holding that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt). The evidence against White was conclusive and included marks on the victim’s ear and testimony about penetrating trauma to his anus.
For these reasons, I concur in the opinion to affirm.