# Anderson v. State > Supreme Court of Arkansas · May 29, 2003 · 353 Ark. 384 URL: https://www.frixlaw.com/law-library/cases/9619150 ## Case - **Full name:** Randy L. ANDERSON v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** May 29, 2003 - **Citations:** 353 Ark. 384; 108 S.W.3d 592; 2003 Ark. LEXIS 307 - **Precedential status:** Published - **Opinion:** Concurrence by Glaze - **Judges:** Annabelle Clinton Imber - **Cited by:** 94 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9619150 ## How later opinions describe it (automated extraction) - holding that.court would consider, without contemporaneous objection, issues | involving infringement on right of presumption of innocence and State’s burden of proof - noting that a parenthetical in the criminal jury instructions indicates its inclusion is optional - holding error involving companion rights of presumption of innocence and burden of proof beyond a reasonable doubt fell within the third Wicfcs exception ## Opinion text Tom Glaze, Justice, concurring. I concur. However, while I might agree with the passages, holdings, and rationale in the many cases cited in the majority opinion, they are unnecessary to decide this case. In sum, I do agree that the so-called third Wicks exception is inapplicable, but I do so for a different and simpler reason. This court has recognized that the four Wicks exceptions are “extremely narrow and strictly guarded.” Camargo v. State, 327 Ark. 631 , 940 S.W.2d 464 (1997); see also Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980). As noted by the majority, the third exception has only been applied by this court in cases involving the constitutional right to jury trial. See, e.g., 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 court in Bowen v. State, 322 Ark. 483 , 911 S.W.2d 555 (1995), discussed what should be covered by the third Wicks exception. In Bowen, the prosecutor made a remark, without objection, during closing argument that the presumption of innocence no longer applied to the defendant due to the strong evidence of his guilt. This court held that “[w]hile these arguments could be characterized as improper, they are not of the sort requiring the trial court to step in absent an objection.” Bowen, 322 Ark. at 508 . The court had held prior to Bowen that the presumption of innocence is a “fundamental right in the American system antedating any constitution and an essential of due process of law.” Williams v. State, 259 Ark. 667 , 535 S.W.2d 842 (1976). Therefore, this court found in Bowen that the remarks made regarding presumption of innocence, a fundamental right, did not rise to the level of flagrant and highly prejudicial error that is encompassed by the third Wicks exception. Bowen, 322 Ark at 508 . In Sasser v. State, 338 Ark. 375 , 993 S.W.2d 991 (1999), this court cited to a United States Supreme Court case, Sullivan v. Louisiana, 508 U.S. 275 , 113 S.Ct. 2078 , 124 L.Ed. 182 (1993), where the Supreme Court held that an erroneous “reasonable doubt” instruction was structural error. However, as noted by the Supreme Court in Sullivan and this court in Sasser, in a case where the jury convicts according to an erroneous instruction about the State’s burden of proof, there is a structural error because there has been no finding of guilt as required by the Sixth Amendment. Therefore, the cases where this Court has discussed finding a “fundamental” or “structural error,” such as what is contemplated in the third Wicks exceptions, are cases involving the right to jury trial, and cases where a jury convicts due to an erroneous instruction. Both involve situations where the legal process has been corrupted and there is no opportunity to cure it. That is not the situation in the present case. Although the right to a burden of proof beyond a reasonable doubt is a fundamental right, such clearly is not structural error when the error has been cured. In the case of Willis v. State, 334 Ark. 412 , 977 S.W.2d 890 (1998), this court affirmed a denial of a motion for mistrial where the trial court made “incomplete and possibly misleading” statements of law to the venire. This court held that “[e]ven if the trial court made an incorrect statement of the law during voir dire, the court cured any error by instructing the jury fully and correctly on the applicable law at the close of the trial[.]” Willis, 344 Ark. at 424. Surely if, in a situation where improper statements of law made by the trial judge during voir dire were cured by a correct instruction to the jury prior to deliberation, improper statements of the law made by a prosecutor during voir dire would be cured by a correct instruction as well. The jury is presumed to have followed the court’s instructions. Hall v. State, 315 Ark. 385 , 868 S.W.2d 453 (1993). If the prosecutor’s statements during voir dire had been wrong, they were cured by the correct instruction, which the law presumes the jury followed. For the reasons above, I must respectfully concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9619150. Public record. Not legal advice.