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Anderson v. State5/29/2003
n either the State's case or the defendant's case, the State has no burden of disproving self-defense. However, once "any evidence tending to support 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.
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 do 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 post-conviction 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
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