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Anderson v. State5/29/2003
al court erred by failing to correct the prosecutor's misstatements that shifted the burden of proof to appellant. Here, the prosecutor told the jury, " 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, " 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.
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