Patton v. State

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                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                       No. CR-11-536


                                                  Opinion Delivered   October 23, 2013
MARCUS PATTON
                                                  APPEAL FROM THE POPE COUNTY
                               APPELLANT          CIRCUIT COURT
                                                  [NO. CR-2010-174]
V.
                                                  HONORABLE WILLIAM PEARSON,
                                                  JUDGE
STATE OF ARKANSAS
                                  APPELLEE        AFFIRMED



                           JOHN MAUZY PITTMAN, Judge

       Following a jury trial, appellant was found guilty of aggravated robbery and sentenced

to twenty-five years’ imprisonment. He argues on appeal that the evidence is insufficient to

support his conviction; that the trial court erred in failing to make an inquiry, sua sponte,

regarding possible racial motivations for juror selection pursuant to Batson v. Kentucky, 

 (1986); and that the trial court erred by failing to instruct the jury on a lesser-

included offense despite the failure of appellant’s attorney to request such an instruction.

       Appellant’s argument regarding the sufficiency of the evidence is not preserved for

appellate review. At trial, appellant made a directed-verdict motion asserting that the

evidence was insufficient to prove aggravated robbery because the State failed to show that

he used a weapon in the commission of the offense and that the evidence was insufficient to

prove that he was an accomplice. On appeal, however, appellant abandons those arguments

and instead argues that there was insufficient evidence linking him to the crime as a principal.
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A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the

movant to apprise the circuit court of the specific basis on which the motion is made.

Rounsaville v. State, 

, 

 (2008). Arguments not raised at trial will

not be addressed for the first time on appeal, and parties cannot change the grounds for an

objection on appeal, but are bound by the scope and nature of the objections and arguments

presented at trial. 

 Here, because appellant’s arguments on appeal were not part of his

directed-verdict motion in the circuit court, the arguments are not preserved for our review,

and we do not address them.

       Next, appellant argues that the trial court erred in failing to make an inquiry, sua

sponte, regarding possible racial motivation for juror selection pursuant to Batson v. Kentucky,

 (1986). He acknowledges that no Batson motion was made at trial but argues

that this was an instance where the trial court should have intervened despite the lack of an

objection pursuant to the third exception to the contemporaneous-objection rule set out in

Wicks v. State, 

, 

 (1980). We do not agree. We addressed the

question of whether Wicks permitted a Batson challenge to be raised for the first time on

appeal in Hodges v. State, 

, 

 (1989), and held that it did not.

       Finally, appellant argues that the trial court should have intervened pursuant to Wicks

to present the jury a lesser-included-offense instruction on simple robbery. We do not agree.

       Generally, at least in other than homicide cases, a trial court does not have a duty to
       instruct on a lesser-included offense when not requested to do so, and the defendant
       may not complain about one’s own neglect in this regard. This position is supported
       by the view that it is more appropriate for the parties to decide whether an instruction
       should be given, since this is a matter of trial tactics, with which the court should not
       interfere. For example, a defendant on trial for murder may prefer to submit an “all

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       or nothing” murder instruction, hoping that the jury will not convict of the greater
       offense, rather than have the court instruct on manslaughter, which might result in
       a “compromise” verdict. If the trial judge proposes to give such an instruction, the
       defendant may object, waive the instruction, and proceed with an all or nothing
       approach, although, based on the evidence presented, it may not be an abuse of
       discretion to overrule the objection.

75A Am. Jur. 2d Trial § 1199 (2013). Arkansas has consistently held that the decision of

whether to request a lesser-included-offense instruction is a matter of trial tactics with which

the courts should not interfere, even if counsel’s decision is arguably improvident. A trial

court is under no duty to instruct the jury on all possible lesser-included offenses, even in a

prosecution for capital-felony murder, where such an instruction is not requested by defense

counsel; if counsel concludes that such instruction is warranted, it is incumbent upon counsel

to request that instruction. Collins v. State, 

, 

 (1981); see

Henderson v. State, 

, 

 (1984).

       Affirmed.

       GLADWIN, C.J., and WOOD, J., agree.

       Teresa Bloodman, for appellant.

       Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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