CourtListener 3161069•Nelson v. State
Gesamter Gesetzestext
Cite as 2015 Ark. App. 697
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-113
STANLEY NELSON Opinion Delivered December 9, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
FIFTH DIVISION
[NO. CR2013-3271]
STATE OF ARKANSAS
APPELLEE HONORABLE WENDELL GRIFFEN,
JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
A Pulaski County jury convicted Stanley Nelson of first-degree battery and second-
degree murder and sentenced him to thirty-five years’ imprisonment for second-degree
murder and eleven years’ imprisonment for first-degree battery. Nelson appeals his conviction
and argues that the circuit court erred when it (1) rejected his ineffective-assistance-of-counsel
claim; (2) failed to correct the jury instructions; and (3) admitted into evidence the
prosecutor’s report of his prior conviction at the sentencing stage. We affirm.
On October 7, 2013, the State charged Nelson with first-degree murder of Latravis
Morant and first-degree battery of Sedrick Green, along with a firearm enhancement and an
in-the-presence-of-children enhancement. The court held a jury trial from October 21
through October 24, 2014.1
1
The State also charged Nelson with possession of a firearm by certain persons, but that
charge was severed.
Cite as 2015 Ark. App. 697
The testimony at trial showed that, on August 14, 2013, Nelson, Green, and Morant
were drinking alcohol and playing a dice game with Nelson’s cousin, Courtney Marshall,
when a physical fight developed between Green and Marshall. The testimony reflected that
the fight began when Marshall poked Green in the face and Green punched him in response.
Nelson then grabbed a gun from Marshall’s waistband and began shooting. Morant was shot
in the abdomen while trying to intervene in the fight. He later died at the hospital. Nelson
shot Green while Green was on the ground fighting Marshall. Green survived his injuries.
During the trial, the court held two jury-instruction conferences on October 22 and
October 23, 2014. At the October 23, 2014 conference, the parties agreed to instruct the jury
on the defense of justification for the battery charge. Nelson’s counsel prepared the
instruction:
Stanley Nelson asserts a defense to the charge of battery in the first degree, that
deadly physical force was necessary to defend himself or Courtney Marshall. This is a
defense only if:
First: Stanley Nelson reasonably believed that Sedrick Green was committing
or about to commit battery in the second degree, with force or violence; or Stanley
Nelson reasonably believed that Sedrick Green was using or about to use unlawful
deadly physical force; and
Second: Stanley Nelson only used such force which he reasonably believed to
be necessary.
A person is not justified in using deadly physical force if he knows that the use
of deadly physical force can be avoided with complete safety by retreating. However,
he is not required to retreat if he is in his dwelling or on the curtilage surrounding the
person’s dwelling and was not the original aggressor.
Stanley Nelson, in asserting this defense, is required only to raise a reasonable
doubt in your minds. Consequently, if you believe that this defense has been shown
to exist, or if the evidence leaves you with a reasonable doubt to the guilt of Stanley
Nelson, then you must find him not guilty.
....
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DEFINITIONS
....
“Battery in the second degree” means Sedrick Green with the purpose of causing
serious physical injury to Courtney Marshall causes serious physical injury to Courtney
Marshall.
(Emphasis added.)
Following the conclusion of the testimony, the court instructed the jury with the
stipulated justification-defense instruction for the battery charge. The jury deliberated and
convicted Nelson of second-degree murder and first-degree battery. 2
The court then held a sentencing hearing. At the hearing, the State proffered the
prosecutor’s report from Nelson’s prior conviction of unlawful discharge of a firearm from a
vehicle. Nelson objected to the entry of the report and argued that the report was duplicative
because the victim testified about the nature of the crime at the hearing. Nelson further
asserted that the report was hearsay. The court overruled the objection and admitted the
report into evidence. The jury then sentenced Nelson to thirty-five years’ imprisonment for
second-degree murder and eleven years’ imprisonment for first-degree battery. The court
entered a sentencing order on October 31, 2014, and an amended sentencing order on
November 5, 2014.
On November 11, 2014, Nelson filed a motion for a new trial and asserted a claim for
ineffective assistance of counsel. He pointed out that the justification-defense instruction that
his counsel proffered and that the court provided to the jury incorrectly stated that second-
degree battery requires a purpose to cause serious physical injury. He noted that second-degree
2
The jury was also instructed on a justification defense for the murder charge;
however, that instruction is not at issue on appeal.
3
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battery requires the mental state of purpose to cause only physical injury. Nelson argued that
such error amounted to an ineffective-assistance-of-counsel claim and asked the court to set
aside the jury verdict. On November 19, 2014, the court held a hearing on the motion, and
on November 25, 2014, the court denied it. The court found that Nelson had failed to
establish that the flawed instruction prejudiced him and thus he could not prevail on an
ineffective-assistance-of-counsel claim. Following the entry of the court’s order, Nelson then
filed this appeal.
On appeal, Nelson first argues that the circuit court erred in rejecting his ineffective-
assistance-of-counsel claim as to the first-degree battery conviction. As Nelson notes in his
brief, the criteria for assessing the effectiveness of counsel were enunciated by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which provides that
when a convicted defendant complains of ineffective assistance of counsel he must show that
counsel’s representation fell below an objective standard of reasonableness and that, but for
counsel’s errors, the result of the trial would have been different. Accordingly, a defendant
must demonstrate (1) that his counsel’s performance was deficient and (2) that the deficient
performance prejudiced his defense. Id.; Thomas v. State, 330 Ark. 442, 954 S.W.2d 255
(1997) (adopting Strickland).
Despite this two-fold requirement from Strickland, Nelson argues that the circuit court
erred in requiring him to prove prejudice because the erroneous jury instruction here is
analogous to the flawed instruction in Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000).3
3
The parties do not dispute that Nelson’s counsel’s performance was deficient.
4
Cite as 2015 Ark. App. 697
Nelson contends that Reynolds eliminated the prejudice requirement from Strickland in cases
where a flawed jury instruction constitutes a fundamental structural error of the trial
mechanism. The State denies that Reynolds eliminated the prejudice requirement from
Strickland and asserts that Nelson must prove prejudice to establish an ineffective-assistance-of-
counsel claim.
We need not address whether Reynolds eliminated the prejudice requirement from
Strickland because we hold that the flawed jury instruction in this case is distinguishable from
the Reynolds instruction. In Reynolds, our supreme court found counsel ineffective and
reversed a first-degree murder conviction because counsel failed to object to an erroneous
instruction that allowed the jury to convict the defendant of first-degree murder based on the
elements of second-degree murder. Id. Our supreme court found that the erroneous
instruction relieved the State of its “responsibility to prove beyond a reasonable doubt every
element of the crime.” Id. at 295, 18 S.W.3d at 337.
In this case, the court properly instructed the jury on the elements of first-degree
battery, the crime that the jury convicted Nelson of; the instruction was flawed only as to the
definition of second-degree battery within the justification-defense instruction. The United
States Supreme Court has held that misstatements and omissions on a single element of an
offense are not structural errors that preclude a jury from rendering a verdict of guilty-
beyond-a-reasonable-doubt. See Neder v. United States, 527 U.S. 1 (1999) (applying the
harmless-error analysis to an instruction that omitted the materiality element of a tax offense);
see also California v. Roy, 519 U.S. 2 (1996) (per curiam) (applying the harmless-error analysis
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to an instruction that failed to instruct the jury that it could convict the defendant as an aider
and abettor only if it found that the defendant had the “intent or purpose” of aiding the
confederate’s crime); Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999) (holding that the
omission of the actus reus element from the instructions for attempted rape and attempted
kidnapping was not a structural error); but see Sullivan v. Louisiana, 508 U.S. 275 (1993)
(holding that an erroneous reasonable-doubt instruction was a structural error and not subject
to the harmless-error analysis). Further, our supreme court has held that justification, such as
self-defense, is considered an element of the offense. See Anderson v. State, 353 Ark. 384, 108
S.W.3d 592 (2003). Accordingly, because the error in this case applied only to a single
element, we hold that Reynolds is distinguishable, and the requirements of Strickland must be
met.4
Nelson next argues that the erroneous jury instruction violated his due-process rights.
He concedes that he made no contemporaneous objection below, and thus, his claim is
generally not preserved for appellate review; however, he asserts that the third Wicks
exception applies. The third Wicks exception provides a narrow exception to the
contemporaneous-objection rule when an error is so flagrant and highly prejudicial in
character that the trial court should have intervened on its own motion to correct the error.
Lopez-Deleon v. State, 2014 Ark. App. 274, 434 S.W.3d 914 (citing Wicks v. State, 270 Ark.
781, 606 S.W.2d 366 (1980)). In making his Wicks argument, Nelson relies on his contention
that the flawed instruction here is analogous to the instruction in Reynolds and amounted to
4
Nelson does not argue on appeal that he can establish prejudice.
6
Cite as 2015 Ark. App. 697
a fundamental structural error in the trial mechanism. However, as we have stated, the error
in the instruction in this case is distinguishable from the error in Reynolds; thus, we find that
the third Wicks exception does not apply.
Nelson’s final argument is that the circuit court erred in admitting into evidence during
the sentencing phase the prosecutor’s report from his prior conviction of unlawful discharge
of a firearm from a vehicle. He asserts that the admission is hearsay and violated Arkansas
Code Annotated section 16-97-103(a) and his rights under the Confrontation Clause. Nelson
concedes that he received a sentence less than the maximum for both convictions and
recognizes that our supreme court has held that a defendant who is sentenced to less than the
maximum sentence cannot establish prejudicial error. Tate v. State, 367 Ark. 576, 242 S.W.3d
254 (2006). However, he asserts that he received a “de facto” life sentence because he is not
parole eligible and must serve one hundred percent of his sentence. Nelson’s argument is
unavailing. It remains true that he did not receive the maximum sentence. Accordingly, he
cannot establish prejudicial error.
Affirmed.
GLADWIN, C.J., and KINARD, J., agree.
John Wesley Hall and Sarah M. Pourhosseini, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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