"In death penalty cases we will consider errors argued for the first time on direct appeal where prejudice is conclusively shown by the record and this Court would unquestionably require the trial court to grant relief under Rule 37."
How later courts described this case
- "In death penalty cases we will consider errors argued for the first time on direct appeal where prejudice is conclusively shown by the record and this Court would unquestionably require the trial court to grant relief under Rule 37."
Written by the judges who cited it.
The opinion
Darrell Hickman, Justice, dissenting. I respectfully dissent to the majority’s holding which recognizes an error raised for the first time on appeal.
First, the error can hardly be described as prejudicial requiring our action. The defendant was sentenced to die and we affirmed that sentence. The defendant will be hard pressed to understand how we find prejudicial error and ignore the obvious — he gets no relief.
Next, the mere fact we would act on a petition for Rule 37 relief is presumptive and premature. We should only act when and if we are confronted with that reality. Appellate courts should not act on their own by recognizing errors not argued below. Wicks v. State, 270 Ark. 781 , 606 S.W. 2d 366 (1980).
The reasons are manifold — a systematic orderly review that can be relied upon; fairness to all parties; fairness to the trial court; only answering questions properly before us. It is a recognition of our proper role in a judicial system.
I find no reason in this case to depart from past practice.
Dudley, J., joins in this dissent.