concurring. I agree that Appellant Randy Anderson has sufficiently raised an argument under the third exception found in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), even though he does not specifically mention that case in his brief. I further agree with the majority’s conclusion that no reversible error occurred on this point. However, I cannot walk down the path that the majority has taken to arrive at this conclusion. In my opinion, the majority makes difficult an issue that is really quite simple.
Appellant argues that the trial court abused its discretion in allowing the prosecutor to make incorrect statements of the law regarding self-defense, which he claims resulted in the burden of proof being shifted to the defense. A review of the prosecutor’s statements is all that is necessary to determine that Appellant’s argument has no merit. During voir dire of the first panel of six potential jurors, the prosecutor made the following statement:
There’s going to be a, an issue raised, I anticipate, about self-defense. And I think we’re all familiar with that, we know what that concept means basically. You know, that someone — without getting the instruction out that’s very meticulously defined — but generally it’s someone, you know, is, you can use deadly physical force to defend yourself under certain circumstances. And no one, including the State of Arkansas, disputes otherwise. That’s the law and it’s long been the law in this state and in most others.
Further, the proof on it; that is, how it has to be proved, is 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 Mr. Anderson, likewise, has to raise a reasonable doubt; that is, prove it, whatever proof he may put on, if he does, concerning the matter, has to raise a reasonable doubt about self-defense.
Does anybody have any difficulty in following that instruction that it’s Mr. Anderson’s burden to raise a reasonable doubt if he’s going to rely on the concept of self-defense?
During voir dire of that same panel, defense counsel made the following statements to a prospective juror:
He’s not required to so-call prove his innocence to a certain degree any more than to raise a reasonable doubt. That’s all he’s required to do in presenting this defense. Could — If he raises a reasonable doubt in the presentation of certain evidence or the listing of certain evidence, whether it’s on, even if it comes out by accident on the part of, accident on the, direct examination of the Prosecutor or cross examination of Defense Attorney, would it make any difference who really brought it out in the, in the evidence —
The prosecutor did not mention the burden of proof regarding self-defense during his voir dire of the second panel of potential jurors. However, defense counsel asked the following question to a prospective juror:
Now, do you understand — All right. If you are instructed that the Defendant, in asserting the defense of self-defense, is only required to raise a reasonable doubt in your mind, would that be sufficient with you, if you find a reasonable doubt, even though it’s not proved beyond a, by a preponderance of the evidence or greater weight of the evidence?
During voir dire of the third panel, the prosecutor made the following statements to a prospective juror:
Let me say something about the proof on self-defense. It is a defense. I prove — I must prove the State’s case beyond a reasonable doubt. Mr. Anderson is the one that claims, I anticipate, self-defense was necessary. And I think after you hear the proof that you’ll conclude that that is not the case and that it was more —
At that point, defense counsel objected that the prosecutor was prematurely arguing his case, and the trial court sustained the objection. Thereafter, the prosecutor continued:
The burden is on Randy Anderson to raise a reasonable doubt about whether self-defense existed; not on the State of Arkansas. He makes this claim of self-defense. His responsibility to raise a reasonable doubt that it existed.
During defense counsel’s voir dire of the same prospective juror, the following colloquy occurred:
[Defense Counsel]: [I]f you’re selected to serve on this jury and the State fails to prove each element of every charge of capital murder, even the lesser included offenses —•
Prospective Juror: Uh-huh.
[ Defense Counsel] : — beyond a reasonable doubt, could you find my client not guilty of all charges?
Prospective Juror: I could find not guilty if he proves that he didn’t do the crime.
[ Defense Counsel] : Okay. I know what you mean to say. If I prove. Now, you remember, it’s the State’s case to prove. I mean, we don’t have to prove self-defense. Adi we got to do is raise a reasonable doubt. Could you agree with that? You’d follow that law?
Prospective Juror: Yes, sir.
[Defense Counsel] : And if we raise that reasonable doubt, you could find him not guilty if he’s, if you find that he had the right to use deadly physical force —
Prospective Juror: Yes, sir.
[Defense Counsel] : ■ — • under the circumstances?
Prospective Juror: Under the circumstances.
During voir dire of the fourth panel, the prosecutor made the following statements:
There is a defense that the law allows called justification; that is, you’re justified in doing what you’re doing.
One that you’re going to hear about in this case is a claim of self-defense. Mr. Anderson, Mr. Randy Anderson, I understand, is going to claim that he was acting in either defense of himself, his home, or someone in the home, or all three, some combination thereof.
First thing the Judge is going to instruct you about self-defense is that it is Mr. Anderson’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. It’s his job to raise the doubt.
A little further into his voir dire, the prosecutor stated:
That is the defense that is going to be raised and I ask you to apply the burden that you said you would. That the burden is not on me to disprove it, but the burden is on the Defense to raise a reasonable doubt. It’s for them to show that these things occurred and raise a reasonable doubt in your mind.
Defense counsel did not address the issue to the fourth panel.
During voir dire of the fifth jury panel, defense counsel asked the prospective jurors if they understood the difference between the prosecutor’s burden of proof and the burden the defense has as to self-defense. Counsel explained:
You’ll be instructed that the Defendant in asserting thé defense of right to use deadly physical force is not required, he’s only required — the words of the instruction — only required to raise a reasonable doubt in your mind of the guilt of, of his guilt of the charge. Okay?
He’s not required to prove self-defense by even a greater weight of the evidence or a preponderance of the evidence, much less, you know, beyond reasonable doubt. He’s only required to raise a reasonable doubt ... in you mind.
The prosecutor did not directly address the issue to the fifth panel.
During the sixth panel’s voir dire, the prosecutor made the following statements:
As you’ve gathered from the questions you’ve heard, it may, it may occur that Mr. Anderson will plead self-defense or defense of others or defense of premises or some combination of those three.
Self-defense is a, is sometimes called justification. The person is justified in doing what they’re doing. But it’s something that the person will show. That is not the State’s burden, it’s not my duty to show that it didn’t exist, to prove the negligence [sic], that he was not that way. It’s his burden to show or raise a reasonable doubt as to whether he was acting in self-defense.
Finally, during voir dire of the potential alternate jurors, defense counsel stated:
Now, with that instruction, you will be instructed that a party may use deadly physical force to defend premises and himself under certain circumstances and he’s only required in that defense to raise a reasonable doubt in your minds. In which event, you would find him what? Not guilty?
The foregoing statements by the prosecutor do not rise to the level of the type of plain error encompassed by the third exception in Wicks, 270 Ark. 781, 606 S.W.2d 366. They are not flagrant or highly prejudicial such that the trial court was required to step in on its own and instruct the jury.
The majority does not see this issue so clearly, choosing first to determine whether, hypothetically, any prosecutorial misstatements made during voir dire concerning the burden of proof rise to the level of the third Wicks exception. Analysis of this hypothetical issue occupies a considerable part of the majority opinion, but it amounts to nothing more than pure obiter dicta. In analyzing the issue as it does, the majority departs from the way that this court has addressed this type of issue in the past.
For example, in Bowen v. State, 322 Ark. 483, 911 S.W.2d 555, cert. denied, 517 U.S. 1226 (1996), the appellant challenged statements made by the prosecutor during closing argument. No objection was made by defense counsel at the time, and this court held: “Absent contemporaneous objection at the trial, we will not review the prosecution’s closing argument unless it was so flagrantly improper and so highly prejudicial in character as to have made it the duty of the Court on its own motion to instruct the jury not to consider it.” Id. at 508, 911 S.W.2d at 567 (citing Wicks, 270 Ark. 781, 606 S.W.2d 366, and Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916)).
Similarly, in Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999), this court looked first to the offensive remarks, which concerned allegedly improper cross-examination by the prosecutor, and then concluded that the appellant had failed to demonstrate that the remarks 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, without the necessity of an objection by appellant.” Id. at 227, 992 S.W.2d at 789.
More recently, in Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003), appointed counsel argued that the trial court had erred in falling to remove a juror for cause, even though trial counsel conceded that there were no grounds for cause. Because that case involved an automatic appeal of a death sentence, this court entertained the argument, but only as to the particular facts and circumstances of that case. This court held that the trial court did not commit error, plain or otherwise, by declining to remove the juror for cause.
Given our previous method of analyzing issues raised under the third Wicks exception, it escapes me why this court is taking the path that it has chosen in this case. In my opinion, it is unnecessary to analyze, at the outset, whether a prosecutor’s misstatements of law concerning the burden of proof rise to the level of a Wicks violation. Only the particular remarks made in this case should be examined. Because the majority goes beyond this narrow determination, I concur in the ultimate conclusion, but I cannot join the dicta.