Annabelle Clinton Imber, Justice.
Randy Landon Anderson was tried and convicted of the capital murder of John Clark “Pete” Emmerson, Jr., and sentenced to death. Appellant states five points on appeal, one of which is that there is no evidence the jury considered a stipulated mitigating factor in the sentencing phase of the trial. Because we find that prejudicial error occurred on this point, we reverse and remand the case for resentencing. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2 (a) (2) (2002).
On June 1, 2000, Pete’s estranged wife, Lauren Jasay Emmerson, her brother, Ricky Jasay, and two other friends, Randy Busti and Christopher Floriani, gathered at appellant’s house to drink and shoot pool. Lauren also took some prescription medicine for muscle spasms and anxiety. When the combination of pills and alcohol caused her to pass out early in the evening, appellant put her to bed in his bedroom. Their relationship, however, was not romantic. Later that evening, Pete started spinning his pickup truck around in the field next to appellant’s house. It was then that appellant went inside the house and brought out a shotgun. One witness heard him say, “[w]e got three options. I’ve got this gun and I got this knife or we can compromise.” Pete drove away, heading toward his father’s house; but, later he was seen running down the road because he had run out of gas. Appellant offered to give him some gas, so the two men went to appellant’s shed and returned with a plastic jug. At that point, Pete started asking Ricky if his estranged wife, Lauren, was inside appellant’s trailer. When Ricky would not respond, appellant intervened and told Pete that Ricky did not have to tell him anything. According to one witness, Pete jumped up, shook his finger in appellant’s face and shouted: “Look, Randy, this ain’t concerning you. It’s between me and Rick. I just want to know if Lauren is inside. I want to talk to her.”
Prior to the night of June 1, 2000, appellant had been told about Pete making threats against him because Pete assumed that appellant was having an affair with Lauren. Appellant also testified that two days earlier Pete had come over to his house and threatened to “kill me if he ever caught me with his wife.” In relating the events that occurred on the night of the shooting, appellant testified as follows: Pete’s argument with Ricky resumed after he told appellant to stay out of his business. Pete threatened to kill “every MF in here if I have to,” and he tried to get into the house to see Lauren. Appellant barred him from getting into the house because he did not know what Pete would do to Lauren if he found her passed out on appellant’s bed. Pete then called appellant out to the yard to fight. Appellant picked up his shotgun and followed Pete out to the driveway. When Pete turned suddenly and rushed him, appellant pulled the trigger. He could not remember firing the second shot, but he did remember moving the body because he was afraid Pete’s father would see the body and kill him.
Barbara Snow testified that she and her boyfriend, Dale Adams, were in bed on the evening of the shooting incident when she received a call from appellant. Barbara rode with Dale to appellant’s trailer. When they pulled up, she saw a large puddle of blood near the driveway. She recounted several statements that appellant made that night: “He said that he shot him in the, I mean, in the chest one time. And he said he was moaning and he said, ‘I finished him off. I shot him in the head.’” Barbara also testified to hearing the following conversation between appellant and her boyfriend, Dale: “[appellant] asked Dale, he said, What to you think I’ll get for this?’ Dale said, ‘Man, twenty years or better.’ He said, ‘I can do twenty.’ . . . [H]e picked up a knife and he said, T can say he was coming after me and he, you know, it was self-defense.’”
Investigating officers testified that the body had been dragged almost fifty feet from the original place where the blood was found. Police found a folded pocketknife and glasses near the blood. The medical examiner confirmed that the victim was shot once in the stomach and once in the back of the head at a range of three to ten feet. According to the medical examiner, Pete would have lived three or four minutes had he not been shot the second time.
Sheriff Floyd White testified about Pete’s tendency to become “turbulent” when he drank. Randy Busti testified that the pocketknife found with the glasses near the pool of blood looked like one he had seen near Pete earlier that day. Ricky Jasay also saw a knife in Pete’s hand as he came up on the porch. Roger Amick, a psychiatrist, testified that the autopsy revealed Pete was intoxicated and had been drinking just before being shot.1 Amick pointed out that Pete’s emotional controls were impaired and his actions were unpredictable.
On appeal, appellant does not challenge the sufficiency of the evidence to support the jury’s verdict in the guilt phase. Instead, he raises the following points on appeal: (1) ineffective assistance of counsel; (2) the circuit court erred by allowing the prosecutor to misstate the law and shift the burden of proof during voir dire, and by allowing a jury organized to return a verdict of death; (3) the circuit court erred in refusing proffered jury instructions on justification; (4) the evidence is insufficient to support the jury’s finding of a statutory aggravating circumstance; and (5) the circuit court erred in imposing the death penalty when the jury failed to follow the statutory procedures during the sentencing phase and ignored a stipulated mitigating factor.
The State, in its examination of the record, pursuant to Ark. Sup. Ct. R. 4-3(h) (2002), determined that the circuit court violated Ark. Code Ann. § 16-89-125(c) (1987), by communicating with the jury other than in open court. During the jury’s sentencing-phase deliberations, the court received a note from the jury containing one question. The court responded in writing with an answer that both the State and appellant agreed was the correct response to the jury’s question. The State asserts it has rebutted the presumption of prejudice that arises from a violation of § 16-89-125(c), because the record reflects the substance of the circuit court’s communication with the jury, appellant never objected to that substance, and the court never had any contact with the jury during deliberations. Atkinson v. State, 374 Ark. 336, 64 S.W.3d 259 (2002). We agree.
I. Shifting the Burden of Proof During Voir Dire
Appellant maintains on appeal that the prosecutor repeatedly violated the parameters and purposes of voir dire. Specifically, he contends that the prosecutor improperly shifted the burden of proof such that the court had an obligation to intervene and correctly instruct the potential jurors. We note at the outset that we hold prosecuting attorneys to a high standard because the State’s attorney acts in a quasi-judicial capacity, and it is the prosecutor’s duty to use fair, honorable, reasonable, and lawful means to secure a conviction in a fair and impartial trial. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988); Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987); Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983); Mays v. State, 264 Ark. 353, 571 S.W.2d 429 (1978). We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest abuse of discretion. Cook v. State, 316 Ark. 384, 386-87, 872 S.W.2d 72, 73 (1994). Generally, such an error may be cured by a remedial instruction from the court. Id. (holding that “[a]t most, it was an attempt to shift the burden of proof, and we cannot say that the trial court erred in determining that the instruction [at the time] remedied that wrong.” (emphasis added)).
Before we can examine the prosecutor’s comments, we must consider whether the issue is properly before this court. The defense attorney did not object to the prosecutor’s comments at the time, and a contemporaneous objection is generally required to preserve an issue for appeal, even a constitutional issue. Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001); Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000). However, we have recognized four exceptions to the contemporaneous-objection rule, commonly referred to as the Wicks- exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The four Wicks exceptions are (1) when the trial court fails to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; (2) when 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 of the trial court. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002) (citing Wicks v. State, supra).
The issue in the instant case is the application of the third Wicks exception, that is, whether the prosecutor’s comments during voir dire were “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 not to consider the same.” Wicks, 270 Ark. at 786, 606 S.W.2d at 370. Analysis of this issue requires us to address three questions. First, whether appellant made a Wicks argument to this court. Second, if so, whether incorrect burden-of-proof statements made during voir dire were the type of remarks that would require intervention under the third Wicks exception. Third, whether the prosecutor’s comments in the instant case were so prejudicial as to require reversal.
Preservation of Wicks Argument
The threshold issue is whether appellant has even presented a Wicks argument to this court.2 Appellant does not cite Wicks in either his initial brief or his reply brief; rather, it is the State’s brief that expressly mentions and addresses the third Wicks exception. In framing this point on appeal, appellant contends the prosecutor’s comments to the potential jurors during voir dire constituted such a serious error that the circuit court should have intervened and admonished the jury as to a correct statement of the law. Without specifically citing Wicks, appellant has effectively made the argument identified by this court as the third Wicks exception — the error is so flagrant and so highly prejudicial as to make it the duty of the court on its own motion to have the jury instructed correctly. Thus, the issue of a possible Wicks exception has been presented to this court in the instant appeal. Flaving concluded that the applicability of the third Wicks exception is properly before us, the question becomes whether there was a violation so fundamental as to require reversal.
Applicability of the Third Wicks Exception to Incorrect Burden-of-Proof Statements .Made by the Prosecutor During Voir Dire
In the past we have only allowed.issues to be considered under the third Wicks exception where the error affected the very structure of the criminal trial. In Calnan v. State, this court considered what constituted waiver of a defendant’s constitutional right to a jury trial. 310 Ark. 744, 841 S.W.2d 593 (1992). The State contended that the issue was not preserved for appellate review because the defendant did not object at the circuit court level. Id. We stated that “[t]he third exception applies in this case. There need be no contemporaneous objection to raise an issue on appeal if otherwise a serious error will result.” Id. at 748, 841 S.W.2d at 596.
On the same date that this court handed down Calnan, we also decided Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992). Winkle was similar to Calnan in that both were DWI cases, both involved the fundamental right to a jury trial, both considered the issue without a contemporaneous objection as Wicks three exceptions, and both reversed the trial court. Id. The holding in Winkle is instructive on the application of the third Wicks exception:
The right to jury trial is part of the basic structure of our courts. Every judge, on his own motion, should accord such a basic right. In Wicks v. State, supra, we set out various exceptions to the contemporaneous objection rule, and we provided that the rule is not applicable when the trial court should intervene on its own motion to correct a serious error. This is such a serious error. The right to a trial by jury in a criminal case is a fundamental right of our jurisprudence and is recognized by the Magna Charta, the Declaration of Independence, the federal constitution, and our state constitution.
Id. at 717-18, 841 S.W.2d at 591.
In 1995, we considered an appellant’s conviction for disorderly conduct that was tried before a six-member jury. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995). Relying on Winkle and Wicks, this court reversed:
In both cases, neither the appellants nor their counsel objected to the violation of their jury trial right. In Winkle, this court stated that denial of the right to trial by jury in a criminal case, without the requisite waiver in accordance with the law, is a serious error for which the trial court should intervene, and is therefore an exception to the contemporaneous objection rule. Winkle, 310 Ark. 713, 717, 841 S.W.2d 589, 591 (citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)).
Id. at 49, 907 S.W.2d at 692. Grinning extended Winkle and Calnan by holding that the right to a jury trial included not only having a jury, but having a properly constituted jury with twelve members rather than only six. Id.
Our case law is clear that Wicks presents only narrow exceptions that are to be rarely applied. Specifically, the third Wicks exception has only been applied to cases in which a defendant’s fundamental right to a trial by jury is at issue. Calnan, supra; Winkle, supra; Grinning, supra. The third Wicks exception has not been applied to consider possible prosecutorial errors in relation to cross examination, Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999), to privileged testimony, Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000), or closing arguments, Buckley, supra and Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001). The issue here is whether prosecutorial misstatements during voir dire concerning the State’s burden of proof rise to the level of a Wicks-three exception.
The United States Supreme Court recently addressed the significance of the right to a jury trial and proof beyond a reasonable doubt in criminal cases. Apprendi v. New Jersey, 530 U.S. 466 (2000). After explaining that the right to a trial by jury is founded on centuries of common law, the Supreme Court stated:
Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt. “The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.’ C. McCormick, Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed.1940).” Winship, 397 U.S., at 361, 90 S.Ct. 1068. We went on to explain that the reliance on the “reasonable doubt” standard among common-law jurisdictions “ ‘reflects] a profound judgment about the way in which law should be' enforced and justice administered.’” Id., at 361-362, 90 S.Ct. 1068 (quoting Duncan, 391 U.S., at 155, 88 S.Ct. 1444).
Apprendi v. New Jersey, 530 U.S. at 478-79 (emphasis added). Furthermore, “the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial” is a fundamental right even though not expressly guaranteed in the Bill of Rights. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579-80 (1980).
The State’s burden of proof beyond a reasonable doubt is the only mechanism by which the State may overcome the presumption of innocence that surrounds a criminal defendant until and unless proven guilty.3 In 1976, we reversed a conviction where the prosecutor, in closing arguments, stated that the defendant was lying to the court and jury. After an objection, the trial court admonished the jury and reminded them that the defendant had not testified. This court found reversible error because the prosecutor’s statement “constituted error beyond doubt.” We explained that the presumption of innocence and the State’s burden of proof beyond a reasonable doubt attach when the defendant pleads not guilty.
He had entered a plea of not guilty. By so doing, he availed himself of any defense and all matters of justification and excuse available under the law, which are not required to be specifically pleaded. He put all material facts alleged in the information in issue. Even the most patent truths were in issue. This plea was a continuing denial of every bit of evidence and every statement of every witness who testified against him. More importantly, he invoked his right to the presumption of his innocence and put the burden upon the state t.o prove his guilt beyond a reasonable doubt, as well as the right to remain silent in the hope that the jury would not be convinced of his guilt beyond a reasonable doubt.
Williams v. State, 259 Ark. 667, 672, 535 S.W.2d 842, 846 (1976) (citations omitted). We then penned the oft-quoted statement:
The presumption of innocence is so strong that it serves an accused as evidence in his favor throughout the trial and entitles him to an acquittal unless the state adduces evidence which convinces the jury beyond a reasonable doubt that he is guilty of the crime charged. It is a fundamental right in the American system antedating any constitution and an essential of due process of law. It alone puts in issue the truth and credibility of all of the evidence offered against an accused.
Id at 672-73, 535 S.W.2d at 846. (citations omitted). See, e.g., Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).
We have referred to the presumption of innocence and the State’s burden of proof beyond a reasonable doubt as constitutional guarantees protecting every accused person being tried by a jury. Rector v. State, 280 Ark. 385, 396, 659 S.W.2d 168, 396 (1983). In a long line of cases, we have emphasized the inviolability of the presumption of innocence and the State’s burden of proof. For example, in 1922, we stated:
The law will not countenance any presumption, which by overcoming the presumption of innocence will cast the burden of proving his innocence upon the defendant. Hence, where presumptions apparendy conflict, the law will recognize the presumption of innocence alone, and will impose no restriction on its operation, but will apply it to the whole scope of the charge, against the accused and to every fact essential to the crime.
Gilcoat v. State, 155 Ark. 455, 462, 244 S.W. 723, 726 (1922) (quoting Section 19, p. 35, Underhill on Criminal Evidence).4 In 1990, we restated the fundamental nature of the presumption of innocence and set out our requirement that a challenge to this presumption calls for close judicial scrutiny.
The presumption of innocence is not articulated in the Constitution of the United States; however, it is a basic component of a fair trial and the right to a fair trial is a fundamental liberty secured by the fourteenth amendment. Estelle v. Williams, 425 U.S. 501, 503 (1976). Consequendy, courts must be vigilant in guarding against dilution of the presumption of innocence so that guilt will be established beyond a reasonable doubt by probative evidence. Deleterious effects on fundamental rights call for close judicial scrutiny. Id. at 504. Factors which might affect a juror’s judgment, however, cannot always be avoided. Id. at 505.
Terry v. State, 303 Ark. 270, 273, 796 S.W.2d 332, 334 (1990). In Terry the conduct of the defendant required his removal from the courtroom in spite of his right to confront the witnesses against him; however, in a case where a prosecutor clearly shifts the burden of proof, the court can avoid depriving a defendant of the presumption of innocence by intervening to correct the misstatement of the law.
The 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. Calnan, supra; Winkle, supra; Grinning, supra. Likewise, today we conclude that failure to secure the companion rights of the presumption of innocence and the State’s burden of proof beyond a reasonable doubt is an error so serious that the circuit court should intervene, and we will consider the issue on appeal even without a contemporaneous objection. This conclusion is consistent with the circuit court’s proper role in voir dire, which is to direct the process and insure that no undue advantage is gained. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). “Since attorneys sometimes tend to take over the voir dire process and confuse the jurors, the judge may have to step in, especially in death cases, after the questioning to insure fairness by clarifying answers.” Id. at 162, 974 S.W.2d at 446.5
The burden of proof, either the State’s or the defendant’s, is necessary to preserve a defendant’s presumption of innocence and is an issue akin to the right to a jury trial in that both are fundamental rights. Unlike many other constitutional rights, the State’s burden of proof beyond a reasonable doubt may not be waived once the accused pleads not guilty. When the State clearly and unequivocally shifts the burden of proof to the defendant during voir dire, without a contemporaneous curative instruction from the circuit court, the defendant’s fundamental right may be abridged. The defendant is entitled not only to the jury’s consideration of the correct burden of proof in jury-room deliberations, but also when the jury is hearing, weighing, and sifting the evidence presented at trial.6 Therefore, under the third Wicks exception, we will consider appellant’s argument that the prosecutor shifted the burden of proof during voir dire.
Prosecutor’s Comments
Appellant alleges that the prosecutor attempted to shift the burden of proof in the following three ways: (1) his description of the meaning of reasonable doubt was confusing, at best; (2) his statement that conflicting evidence does not constitute reasonable doubt was not a correct statement of the burden of proof; and (3) his statements concerning the burden of proof for the justification of self-defense were incorrect. While the prosecutor’s comments were questionable, after a careful reading of the voir dire of the potential jurors, we cannot say that the prosecutor’s comments were so flagrantly incorrect as to require reversal; and, as such, the circuit court did not manifestly abuse its discretion by not intervening on its own to instruct the jury as to the law at that time.
First, appellant argues that the prosecutor’s comments concerning the State’s burden of proving its case beyond a reasonable doubt, while not completely wrong, could have led to confusion. The prosecutor relied on the Arkansas Model Jury Instructions — Criminal as the basis for his definition and explanation of the concept of proof beyond a reasonable doubt. Thus, the prosecutor’s general statements on reasonable doubt were correct statements of the law and do not constitute error.
Second, appellant asserts that the prosecutor incorrectly advanced a theme that conflicting testimony does not mean the State failed to meet its burden of proof, and conflicting testimony does not constitute reasonable doubt. His statements to the jury were not technically incorrect. Conflicting testimony does not necessarily require a jury to find a reasonable doubt. In fact, we have often stated that the resolution of conflicting testimony is a matter of credibility, and the determination of the credibility of witnesses is a proper matter for the jury as fact-finder. Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003). While appellant is correct in his statement that conflicting testimony may be considered by a jury as a factor supporting reasonable doubt, a thorough and careful reading of the prosecutor’s comments during voir dire does not reveal any comments concerning conflicting testimony that require reversal.
Third, appellant claims that the prosecutor misstated the State’s burden of disproving the justification of self-defense and misstated appellant’s burden of raising the self-defense justification. We begin our analysis of this issue by reviewing the burden of proof for both the defendant and the State where the justification of self-defense is raised in a criminal case. The defendant’s burden of proof was clearly stated in Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982): “Justification is not an aflirmative defense which must be pled, but becomes a defense when any evidence tending to support its existence is offered to support it.” Id. at 450, 631 S.W.2d at 282 (emphasis added). It does not matter whether the evidence of self-defense comes from the defense’s case or the prosecution’s case. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979). According to the Arkansas Model Jury Instructions — Criminal, the defendant’s burden of proof is merely to raise a reasonable doubt. AMI Crim. 2d 705.
The State’s burden of proof is equally clear: “Because justification is not an affirmative defense, the State has the burden of negating the defense once it is put in issue.” Humphrey v. State, 332 Ark. 398, 408, 966 S.W.2d 213, 218 (1998). By statute, a justification, such as self-defense, is considered an element of the offense, and once raised, must be disproved by the prosecution beyond a reasonable doubt. Ark. Code Ann. § 5-1-102(5)(C) (Supp. 2001); see also Comment to AMI Crim. 2d 705 (“[T]he prosecution has the burden to prove as an element of its case the negation of any defense beyond a reasonable doubt.”). If the prosecutor tells the jury during voir dire that the defendant’s burden is greater than it is, or if the prosecutor tells the jury during voir dire that the State’s burden of disproving self-defense is less than it is, then the prosecutor has attempted to shift the burden of proof.
In this case, the prosecutor stated that appellant had the burden of raising a reasonable doubt. However, he also described appellant’s burden as “a little bit similar to the way the State has to prove its case. You know, I have to prove my case beyond a reasonable doubt. And [appellant] likewise, has to raise a reasonable doubt; that is, prove it. ...” The State’s burden is to prove beyond a reasonable doubt; whereas, appellant’s burden is merely to raise a reasonable doubt, the exact opposite of the State’s burden. While not a flagrant shift, the prosecutor’s statements represent a subtle attempt to shift the burden of proof by equating appellant’s burden of proof with the State’s burden. Although appellant’s counsel did not object, he did counter the prosecutor’s statements with his own explanation of his burden to raise a reasonable doubt by way of asserting self-defense. Appellant’s counsel explained to the potential jurors that the prosecutor “was correct in his brief description of the burden that is on the Defendant in raising a defense of self-defense.” Appellant’s counsel repeatedly told the potential jurors that he need only raise a reasonable doubt. For example:
Defense Counsel: Now, you remember, it’s the State’s case to prove. I mean, we don’t have to prove self-defense. All we got to do is raise a reasonable doubt. . . . [I]f we succeed in raising a reasonable doubt, would you find him not guilty of all charges?
Potential Juror: Uh-huh.
Therefore, between the prosecutor and defense counsel, the potential jurors were correctly instructed on appellant’s burden to raise a reasonable doubt when asserting self-defense. We, therefore find no error.
The issue of the prosecutor’s statements concerning the State’s burden of proof is a much closer issue. On at least five occasions, the prosecutor told the potential jurors that the State did not have to disprove that appellant acted in self-defense, for example: “[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.” Again, the prosecutor stated “[i]t’s not my duty to show that it didn’t exist,” and he also stated, “would you still put that burden on me and make me prove that he didn’t act in self-defense . . . ?” Finally, he stated, “That’s not the State’s burden, it’s not my duty to show that [self-defense] didn’t exist. . . . It’s his burden to show or raise a reasonable doubt as to whether he was acting in self-defense.”
Under certain circumstances, the prosecutor’s statements of the State’s burden to disprove self-defense would be correct statements of the State’s burden of proof, but under other circumstances they would be incorrect. Until some evidence tending to support the justification of self-defense is offered, in either the State’s case or the defendant’s case, the State has no burden of disproving self-defense. Flowever, once “any evidence tending to support [the] existence [of justification] is offered to support it,” then the State does indeed have the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Doles v. State, 275 Ark. 448, 450, 631 S.W.2d 281, 282 (1982); Humphrey v. State, supra; Ark. Code Ann. § 5-1-102(5)(C); Comment to AMI Crim. 2d 705.
We cannot say, from reading the record, that the prosecutor clearly and unequivocally misstated the State’s burden of disproving self-defense beyond a reasonable doubt. We, therefore, defer to the superior position of the circuit court to control and manage the arguments of counsel. We conclude that the circuit court did not manifestly abuse its discretion, and that, in this case, there was no fundamental, structural error in the trial as to require reversal.7
II. Ineffective Assistance of Counsel
Appellant alleges ineffective assistance of counsel of such magnitude that a fundamental error occurred requiring this court to address the issue on appeal even though it was not objected to below. “It is well settled that this court will not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court.” Slocum v. State, 325 Ark. 38, 40, 924 S.W.2d 237, 238 (1996) (citing Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995)). Furthermore, if the ineffective assistance of counsel “is predicated on counsel’s failure to object, then it is the kind of error that should be addressed in a Rule 37 proceeding, not in a direct appeal where the issue is admittedly not preserved for appeal.” Buckley v. State, 349 Ark. at 69, 76 S.W.3d at 835.
Contrary to what appellant alleges in his brief, the refusal of this court to consider his claims of ineffective assistance of counsel does not deny him a fundamental right to have an appellate court review the issue of whether he received the assistance of counsel guaranteed by the Sixth Amendment. That review is available to appellant through the process of postconviction relief in a Rule 37 proceeding. Because the effectiveness of counsel was not objected to or raised to the circuit court in his motion for a new trial, appellant’s claims of ineffective assistance of counsel are not preserved for appeal.
III. A Jury Organized to Return a Verdict of Death
Under this point, appellant contends that the questions posed by the prosecutor to prospective jurors concerning their ability to sentence the defendant to death in accordance with the law resulted in a jury that was organized to return a verdict of death in contravention of Witherspoon v. Illinois, 391 U.S. 510 (1968). As an initial matter, the State correctly points out that appellant did not make a Witherspoon objection during voir dire or in his motion for a new trial. Therefore, this issue is not preserved for appeal. Bader v. State, 344 Ark. 241, 40 S.W.3d 738; Christopher v. State, 340 Ark. 404, 10 S.W.3d 852.
IV. Proffered Jury Instructions on Justification
The circuit court refused appellant’s proffered versions of the AMI Crim. 2d 705 and 706 jury instructions on justification, use of deadly force in defense of a person. Appellant specifically asserts that the instruction to the jury should have included the phrase: “However, he is not required to retreat if he is in his dwelling and was not the original aggressor.” AMI Crim. 2d 705. The judge determined that, as a matter of law, appellant was not in his “dwelling” at the time of the killing; therefore, the proffered instructions were not proper.
There is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002). The phrase appellant sought to include in the jury instruction is a parenthetical in AMI Crim. 2d 705, indicating that its inclusion is optional. The issue here is whether there was a basis in the evidence to support giving the optional portion of the instruction. We have held that the term “dwelling” in the self-defense statute does not include curtilage. Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988). The Hopes court rejected the assertion that the defendant’s porch was a part of his “dwelling” because it was not enclosed. Id. Appellant’s house was about eighty-five feet from the highway. Pete was shot about 32 feet from the highway, and from a distance of no more than ten feet. Furthermore, according to appellant’s own testimony, he left his porch to follow Pete into the driveway. Thus, based on the physical evidence and appellant’s own testimony, he was not in his dwelling at the time he shot Pete. As there was no basis in the evidence to support giving the proffered jury instructions, we affirm the circuit court on this point.
V. Insufficient Evidence to Support the Jury’s Finding of a Statutory Aggravating Circumstance
For his penultimate argument, appellant states that there was insufficient evidence to support a finding of statutory aggravating circumstances, specifically that the murder was committed “in an especially cruel or depraved manner.” Ark. Code Ann. § 5-4-604(8) (A) (Supp. 2001). Here, the jury was instructed solely on the statutory aggravating circumstance of cruelty:
[A] capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted.
(ii) (a) “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate.
Ark. Code Ann. § 5-4-604(8)(B) (Supp. 2001).
This court recently explained our standard for reviewing a jury’s sentencing verdict:
We will uphold the jury’s verdict if there existed substantial evidence for the jury to find beyond a reasonable doubt that one or more aggravating circumstances exist and that they outweighed any mitigating circumstances.
* * *
On review, the jury’s judgment will be upheld if, taking the evidence in the light most favorable to the State, a rational trier of fact could find the aggravating circumstance to have existed beyond a reasonable doubt. Kemp v. State, 324 Ark. 178, 200, 919 S.W.2d 943, 953-954, cert. denied, 117 S.Ct. 436, 136 L.Ed.2d 334 (1996). Willett v. State, 335 Ark. 427, 434, 911 S.W.2d 937 (1998). The balancing of aggravating and mitigating circumstances is properly the duty of the jury.
Williams v. State, 338 Ark. 97, 108-09, 991 S.W.2d 565, 570-71 (1999). The record in this case reflects Barbara Snow’s testimony that appellant said he heard Pete moaning after the first shot, and then proceeded to shoot him in the back of the head. According to the State’s expert witnesses, Pete would have lived several minutes after the first shot, even though the first shot was fatal. Finally, Randy Busti testified that several seconds passed between the first and second shots.
Viewed in the light most favorable to the State, the jury could have determined that after the first wound, Pete was uncertain as to his ultimate fate and, as a result, suffered mental anguish. Thus, we conclude there is sufficient evidence to support the jury’s finding that the murder was committed in an especially cruel manner.8
VI. Statutory Procedures During the Sentencing Phase
As his final point, appellant argues that the circuit court erred in imposing the death penalty because the jury failed to strictly follow the statutory procedures and ignored the stipulated mitigating factor of no significant prior criminal history. To impose the death penalty, a jury has the following statutory obligations:
(a) The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt.
(c) If the jury does not make all findings required by subsection (a) of this section, the court shall impose a sentence of life imprisonment without parole.
Ark. Code Ann. § 5-4-603(a), (c) (Repl. 1997). As a criminal statute, section 5-4-603 must be strictly construed in favor of the accused. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002). In connection with the statutory requirements for the imposition of the death penalty, the Arkansas Model Jury Instructions — Criminal for the punishment phase of a capital murder case include four separate verdict forms: Form 1 — the jury’s findings concerning possible aggravating circumstances; Form 2 ■— the jury’s findings concerning possible mitigating circumstances; Form 3 — the jury’s weighing of any aggravating or mitigating circumstances; and Form 4 — the jury’s sentence of death or life without the possibility of parole. See AMI Crim. 2d 1008.
In some cases, we have found no reversible error where certain portions of Form 2 were filled out inconsistently by the jury. Jones v. State, 329 Ark. 62, 72, 947 S.W.2d 339, 344 (1997); Hill v. State, 289 Ark. 387 713 S.W.2d 233 (1986). In one case, we have found error where the jury did not clearly indicate on Form 3 that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Camargo v. State, supra.
In the instant case, the supplemental record includes Forms 1 through 4. Because the State stipulated at trial that appellant had no significant criminal history, the circuit court indicated oraEy that section “D” of Form 2 would be omitted. That particular section is applicable only if no evidence of a mitigating circumstance was presented. The jury here checked various boxes on Forms 1, 3, and 4, but no boxes are checked on Form 2. The jury foreman signed Forms 1, 3, and 4, but there is no signature-on Form 2. The circuit clerk marked Forms 1, 3, and 4 as received, but the clerk did not mark Form 2 as received. In fact, the Form 2 included in the supplemental record has no marks on it at aE. Thus, we are presented with no proof that Form 2 was ever presented to the jury or received by the circuit clerk. There is no written proof that the jury considered any mitigating circumstances. Section 5-4-603 requires “written findings” that “ [a] ggravating circumstances outweigh beyond a reasonable doubt aE mitigating circumstances found to exist.” Without a signed and filed Form 2, this court is unable to say that the jury considered any possible mitigating circumstances, much less that it concluded beyond a reasonable doubt that the only aggravating circumstance outweighed any mitigating circumstances found to exist. Accordingly, we reverse and remand for resentencing.
Affirmed in part; reversed and remanded in part.
Glaze and Hannah, JJ., concur. Thornton, J., concurs in part and dissents in part.