Willis v. State

977 S.W.2d 890, 334 Ark. 412, 1998 Ark. LEXIS 522
CourtSupreme Court of Arkansas
DecidedOctober 1, 1998
DocketCR 95-1218
StatusPublished
Cited by46 cases

This text of 977 S.W.2d 890 (Willis v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. State, 977 S.W.2d 890, 334 Ark. 412, 1998 Ark. LEXIS 522 (Ark. 1998).

Opinion

Ray Thornton, Justice.

This case presents multiple challenges to our standards concerning preservation of claimed trial errors. After a jury trial, appellant Cleotis Willis was' convicted of battery in the first degree and sentenced to thirty-two years’ imprisonment. Appellant raises six points on appeal. Appellant does not controvert evidence that he cut the throat of the victim, Greg Williams, and kicked him, but he asserts that he acted in self-defense and that the State failed to prove the necessary mens rea of purposely inflicting injury to the victim. Appellant also seeks to raise numerous issues on appeal that were not presented to the trial court for decision, many of which have not been preserved for our review. Among those issues, appellant contends that we should expand the exceptions to the contemporaneous-objection rule articulated in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), and grant a Rule 37 review on ineffective assistance of counsel even though that claim was not raised during trial nor addressed in appellant’s motion for a new trial. We find no reversible error and affirm.

Appellant encountered the victim in a parking lot in El Dorado. The victim testified that appellant demanded money. The victim told appellant to “take the money” and attempted to flee. Appellant asserted at trial that he acted in self-defense because the victim had a knife; however, no other witness testified to seeing the victim with a knife, no knife was found, and the victim testified that he did not have a knife. It is not disputed that appellant cut the victim’s throat from the left ear to the right ear with a four-and-a-half-inch knife, severing muscles and blood vessels and injuring his trachea. After the victim fell to the ground, appellant kicked him. Badly injured, the victim managed to escape to a nearby restaurant, where prompt attention followed by emergency medical care saved his life.

We first address the question of sufficiency of the evidence. Appellant admits that he cut the victim and kicked him, but he contends that these actions do not demonstrate the required mens rea to sustain a conviction for first-degree battery and that instructions should have been given for second-degree battery. We save until later the issue whether such instruction should have been given with respect to lesser-included offenses.

With regard to the sufficiency of the evidence to support a conviction for first-degree battery, it would appear that appellant’s own concessions would resolve the issue in favor of the State had it been properly preserved for our review. However, appellant failed to renew his motion for a directed verdict at the close of all the testimony. After the jury had been instructed, appellant requested permission from the trial court to renew his motion for a directed verdict. Although appellant stated that he had not been afforded an opportunity to make the motion earlier, the abstract is silent as to when such a request had been previously made. The trial court allowed appellant to renew his motion for a directed verdict, and it considered and denied the motion. Closing arguments followed.

Our rule provides that when there has been a trial by jury, a renewal of a previous motion for a directed verdict at the close of all the evidence preserves the issue of insufficient evidence for appeal. Ark. R. Crim. P. 33.1; see also Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). We have previously stated that this renewal is more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant. Thomas v. State, 315 Ark. 504, 508, 868 S.W.2d 483, 485-86 (1994). However, after the jury has been charged, it is too late to consider a motion to direct a verdict. Rankin v. State, 329 Ark. 379, 386, 948 S.W.2d 397, 401 (1997). We have held that a trial court’s decision to consider and then deny a motion for a directed verdict made after the jury had been instructed, but before closing arguments, did not comply with the rule requiring that the motion be renewed at the close of the case and was therefore “too late.” Claiborne v. State, 319 Ark. 602, 603, 892 S.W.2d 511, 512 (1995). Appellant’s motion was similarly untimely, and the issue is not preserved for our review.

Second, appellant argues that the trial court erred by fading to instruct the jury on the lesser-included offenses of second-degree battery and failed self-defense. At trial, the court instructed the jury on first-degree battery and justification. No instruction was proffered regarding second-degree battery or a lesser offense, or regarding “failed self-defense.” Furthermore, appellant did not object to the instructions. On appeal, appellant argues that the case falls within our narrowly crafted exceptions to the contemporaneous-objection rule and that we should therefore reach the merits of this point.

We do not consider this argument because appellant failed to object to the lack of the instruction and failed to proffer the instructions that he now argues it was error not to give. We have been constant in our requirement that counsel object and proffer an instruction in order to later appeal, and we have been hesitant to allow exceptions to this requirement. See, e.g., Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995) (refusing to consider argument that the trial court failed to give an instruction on a lesser offense because the appellant failed to proffer the instruction to the trial court). Further, the failure to bring the alleged error to the trial court’s attention does not fall within any of our extremely narrow and strictly guarded exceptions to the contemporaneous-objection rule. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)(recognizing only four exceptions to the objection requirement: [1] death-penalty cases involving an error in a matter essential to the jury’s consideration of the death penalty itself; [2] cases where the trial judge made an error of which the appellant had no knowledge; [3] cases where the trial judge neglected his or her duty to intervene; and [4] cases involving evidentiary errors that afFected the appellant’s substantial rights).

Appellant next contends that if the points he argues on appeal were not properly preserved for review, then the question of ineffective assistance of counsel should be considered during this appeal. It is well established that claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was considered by the trial court, as on motion for a new trial. Reed v. State, 323 Ark. 28, 29, 912 S.W.2d 929, 930 (1996). Additionally, the facts surrounding the claim must be fully developed, either during the trial or during other hearings conducted by the trial court. Dodson v. State, 326 Ark. 637, 642, 934 S.W.2d 198, 200 (1996). The reason for this rule is that an evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Reed, 323 Ark. at 29, 912 S.W.2d at 930.

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Bluebook (online)
977 S.W.2d 890, 334 Ark. 412, 1998 Ark. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-state-ark-1998.