holding that.court would consider, without contemporaneous objection, issues | involving infringement on right of presumption of innocence and State’s burden of proof
How later courts described this case
- 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
- failure to provide a criminal defendant with a jury trial is an error so serious that the circuit court has an obligation to intervene, and this court may consider the issue on appeal without an objection below
Written by the judges who cited it.
The opinion
Ray Thornton, Justice, concurring in part and dissenting in part. I agree completely with the majority’s holding that this matter must be reversed and remanded to the trial court for resentencing because there was no proof that the jury considered any mitigating circumstances as required by Ark. Code Ann. § 5-4-603 (Repl. 1997). However, I cannot agree that the prosecutor’s misstatements of the law relating to the shifting of the burden of proof from the State to the defendant did not require immediate action by the trial court to correct this error. I also believe that the shifting of the burden of proof was a serious error that we have the duty to address under the third exception outlined in Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980), where we stated:
A third exception . . . relates to 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.
Id.
In the United States Supreme Court decision of Mullaney v. Wilbur, 421 U.S. 684 (1975), the Court held that the Due Process Clause of the 14th Amendment requires that the prosecution prove beyond a reasonable doubt every element of the crime charged. Id. The Court invalidated a Maine homicide statute that implied malice aforethought in any criminal prosecution of an intentional homicide unless the defendant established by the preponderance of the evidence that the homicide was committed in the heat of passion. In commenting on the Mullaney holding in a subsequent case, Patterson v. New York, 432 U.S. 197 (1977), the Supreme Court said:
Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the'defendant by presuming that ingredient upon proof of the other elements of the offense. . . . Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
Id. See also Francis v. Franklin, 471 U.S. 307 (1985) (stating due process requires the State to bear the “burden of persuasion beyond a reasonable doubt of every essential element of a crime”). See generally 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 77, at p. 367 (2d ed.1994) (stating “that the prosecutor has the obligation to prove each element of the offense beyond a reasonable doubt” and “that the accused bears no proof burden whatsoever with respect to any element of the crime”).
Based upon this well-established precedent, I would hold that the trial court erred by failing to cprrect the prosecutor’s misstatements that shifted the burden of proof to appellant. Fiere, the prosecutor told the jury, “[I]t is [appellant’s] job, his burden to raise a reasonable doubt in your mind that self-defense exists. It is not the State’s burden to prove that it doesn’t. All right? To go in and prove the negative, to prove that it doesn’t exist.” The prosecutor asked a prospective juror, “[W]ould you still put that burden on me and make me prove that [appellant] didn’t act in self-defense . . . ?”
These prosecutorial misstatements show that the State sought to shift the burden of proof away from the State to appellant. We have said that the burden on the defendant to prove an affirmative defense does not arise until the State has met its burden of proof as to the elements of the offense. Moss v. State, 280 Ark. 27 , 655 S.W.2d 375 (1983). The defendant must then prove an affirmative defense by a preponderance of the evidence. Ark. Code Ann. § 5-1-111 (Repl. 1997) (emphasis added). While there are times during voir dire that the prosecutor correctly expressed the State’s burden of proof, I believe that the misstatements to the jury were not cured by the contrary statements by the prosecutor, and that the failure of the trial court to intervene led to confusion and an unfair result.
I believe that these misstatements by the prosecutor constitute a “serious error” contemplated by the third Wicks exception and should have been corrected by the trial court by means of an admonishment to the jury or by a new trial. For that reason, I would reverse and remand for a new trial.