Aрpellant Jimmy Jones was convicted by a Pulaski County jury of first-degree murder with a firearm enhancement. He was sentenced as a habitual offender to terms of thirty years’ imprisonment for the murder and eight years’ imprisonment on the firearm enhancement. He now appeals, contending that the circuit court erred in refusing his request to strike a juror for cause duе to the juror’s professed fear of retribution. The State cross-appeals, asking this court to declare error with regard to the circuit court’s reliance on Brooks v. State,
Direct Appeal
Jones was charged by felony information on May 11, 2007, with the capital murder of Marcus Hickman. His trial commenced on January 15, 2008. After the State had presented its case-in-chief and while the defense was presenting its case, a bailiff informed the court during a recess that a juror had approached him and told him that she knew a spectator in the courtroom. The juror was brought into the court’s chambers to discuss the matter on the record with the court and counsel. The juror initially indicated that she wanted to speak only with the judge and that she did nоt want to discuss the problem in the presence of the other people in chambers, which included Jones. She asked the court if she could leave the jury without a reason. When the court informed her that she could not leave unless excused by the court, she asked to make a telephone call. After making this call, the juror disclosed that she hаd seen a woman whom she knew in the courthouse the previous day, before she was selected as a juror. At that time, the juror was not aware that the woman she saw was connected to Jones’s trial. The juror knew the woman because the woman’s children had at one time attended the school where the juror was a teacher. When they saw еach other, they spoke briefly about the woman’s children. The juror subsequently noticed that the woman was sitting in the audience at trial. She informed the court in chambers that she did not know whether the woman was supporting the State or the defense, but that she was nonetheless concerned about “retribution if something may or may not go a certain way.”
The juror stated, in response to a question from the court, that this situation would not influence her verdict in any way. She later reiterated that she “would still vote for what [she] thought[.]” She also stated that she had not received any direct or implied threats and that the woman was “extremely nice.” However, based on the nature of the case being tried and the juror’s perсeption that all parties involved were connected and “hang with the same people,” she feared physical harm. Counsel for Jones requested that the juror be struck, arguing that, despite her assurances, she could not be fair and impartial while experiencing fear of retribution. The State responded by pointing out that the juror was unaware of which side the spectator was supporting. The court ultimately denied Jones’s motion to strike the juror, noting that she had not received any threats, had expressed no fear of the spectator, and had insisted that she could remain fair and impartial.
Jones alleges on appeal that the circuit court abused its discretion in refusing to strike the jurоr. He contends that the juror’s fear, whether substantiated or not, should have disqualified her from the jury. He also maintains that the juror’s statements in chambers contradicted her assurances that the situation would not influence her verdict. In response, the State points out that the circuit court was given an opportunity to determine the juror’s sincerity and was entitled to believe her assertion that she could serve as a fair and impartial juror. The State also notes that the juror had not been threatened and could not identify which side of the case the spectator was supporting. The State additionally avers that Jones has failed to prove prejudice. A juror is presumed to be unbiased and qualified to sеrve, and the burden is on the appellant to prove otherwise. Smith v. State,
We consider Jones’s arguments to be without merit. First, the juror repeatedly stated that she did not know whether the spectator was supporting thе State’s case or the defense’s case. In other words, she did not know whether the spectator was supporting the victim or the defendant. The juror’s stated reason for her desire to be excused from the jury was her fear of retaliation “if someone didn’t agree with how this trial may or may not turn out.” Yet, if she did not know which verdict this particular spectator wоuld not “agree with,” then her verdict could not have been affected. The juror did not know whether a guilty verdict or a not-guilty verdict would subject her to the retaliation she supposedly feared. Therefore, her decision could not have been influenced.
Secondly, the juror emphatically maintained that she had not received any direct or implied threats and that she had no reason to fear this particular spectator, whom she described as “extremely nice.” In Echols v. State,
We stated in Echols that, “[i]n matters involving impartiality of jurors, we have consistently deferred to the trial court’s opportunity to observe jurors and gauge their answers in determining whether their impartiality was affected.” Id. at 991,
Moreover, Jones has failed to prove prejudice. His brief merely alleges that “[t]here was a reasonable possibility of resulting prejudice” from the circuit court’s refusal to strike the juror. We have repeatedly held that an appellant must do more than allege prejudice; he or she must actually demonstrate it. Sheridan v. State,
We hold that the circuit court did not abuse its discretion in refusing to strike this juror, and thatjones has failed to demonstrate that he was prejudiced by the circuit court’s refusal. Thus, we affirm his conviction on direct appeal.
Cross-Appeal
Prior to the commencement of the sentencing phase of Jones’s trial, his counsel indicated that he wanted to introduce a certified copy of a prior conviction of the victim. Jones’s counsel maintained that the battery conviction was relevant to show that the victim was prone to violence, an argument that would have supported Jones’s theory of sеlf-defense. The circuit court initially rejected the evidence, finding it irrelevant in light of the fact that the jury had already rejected the self-defense argument when it found Jones guilty of first-degree murder. After taking time to review the issue, and after the State noted that it planned to present some victim-impact evidence at sentencing, the court stated that thе defense could not “re-open” its case in another attempt to prove self-defense, but that it could present some victim-impact evidence to contradict the State’s victim-impact evidence. In support of the proposition that victim-impact evidence is admissible by a defendant, the court cited to Brooks v. State, suprа, and read part of the opinion into the record.
During the sentencing phase, the State introduced certified copies of Jones’s prior convictions and called no victim-impact witnesses. The defense called Jones and his aunt to testify on his behalf. Over the State’s objection, the court then admitted the victim’s prior conviction “for victim impact, but not for any evidence of innocence of this defendant.” The State requested permission to call a rebuttal witness, which the court denied because such evidence had been available to the State during its case-in-chief. After the jury returned its sentencing verdict, the State initiated a bench conference to “make a record for appellate purposes” as to the admission of the victim’s prior conviction. The State argued that Jones had no right pursuant to the Fourteenth Amendment to introduce victim-impact evidence under Arkansas Code Annotated section 16-97-103, that the prior conviction was not relevant under Arkansas Rule of Evidence 402, and that the State had chosen not to present any victim-impact evidence so as not to open the door to such evidence by the defendant. The State also argued that Brooks v. State, supra, did not specifically address the issue of victim-impact evidence presented by the defense. The court overruled the State’s objection, noting that it was not contеmporaneous.
On cross-appeal, the State contends that the circuit court’s reliance on Brooks v. State, supra, was misplaced. The State argues that, while the appellant in Brooks introduced reverse victim-impact evidence at his trial, this court did not address the issue of whether it was proper for him to do so, because the issuе was not raised on appeal. Jones has not filed a brief responding to the State’s cross-appeal. The decision of whether to admit evidence rests in the sound discretion of the trial court, and we review such decisions by an abuse-of-discretion standard. Ray v. State,
Appeals filed on behalf of the State in criminal cases must comply with Rulе 3(c) of our Rules of Appellate Procedure-Criminal. Rule 3(c) reads as follows:
When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be madе and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
Ark. R. App. P.-Crim. 3(c) (2008). Pursuant to Rule 3(c), this court has stated that we accept appeals by the State in criminal cases when our holding would be important to the correct and uniform administration of the criminal law. State v. Aud,
This court has previously held that the erroneous application of the sentencing statutes affects the correct and uniform administration ofjustice. State v. Pinell,
However, we are precluded from addressing the State’s argument on cross-appeal, as it was not properly preserved. Our review of the record shows that thе State first objected to the attempt to introduce the victim’s prior conviction when counsel for Jones first indicated to the court that he wanted to introduce it. At that point, Jones’s counsel argued that the conviction would show the victim’s violent nature, which would bolster his self-defense theory. The State contended that the conviction was not relevant to sentencing and that the jury had already rejected the self-defense argument. Subsequently, after the court recessed to consider the arguments and then ruled that the conviction could be introduced only for purposes of victim-impact evidence under Brooks, the State “ma[d]e an objection for the record” and moved in limine to prevent Jones’s attorney from questioning State witnesses about the victim’s criminal history. The State did not argue at that time that Brooks was inapplicable.
Later, when Jones’s counsel actually moved to introduce the conviction, the State objected based on its previous argument. When the court inquired as to what the argument was, counsel for the State replied, “Relevance.” Again, the State did not dispute the court’s interpretation of Brooks, and the conviction was admitted. The State finally argued that the court’s reliance on Brooks was misplaced during the bench conference following the pronounce-merit of the jury’s verdict at sentencing. At that point, the court rejected the argument as not contemporaneous.
It is well settled that an objection must be contemporaneous, or nearly so, with the alleged error. Mills v. State,
Affirmed on direct appeal; affirmed on cross-appeal.