Ark. Code Ann. § 16-91-113 (2026)

Research References

Ark. L. Rev.

Criminal Procedure-Specificity of Objection. 28 Ark. L. Rev. 406.

U. Ark. Little Rock L.J.

Survey — Criminal Procedure, 12 U. Ark. Little Rock L.J. 193.

Case Notes

Applicability.

Subsection (b) applies to the state the same as to individuals and it does not conflict with or change the manner by which the state may appeal as set forth in § 16-91-112. State v. Knight, 259 Ark. 107, 533 S.W.2d 488 (1976).

Capital Murder.

Supreme Court of Arkansas upheld defendant's conviction for the capital murder of an 87-year-old woman who was found shot to death in her yard where defendant confessed to the crime and the record of the guilt phase was reviewed for any prejudicial error under Ark. Sup. Ct. R. 4-3(h) (now (i)), Ark. R. App. P. Crim. 10, and subsection (a) of this section, and none was found. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004).

On direct appeal of a capital murder case, where the Arkansas Supreme Court had considered all adverse rulings objected to by defendant but not argued on appeal and found no error, the effectiveness of counsel in making a motion for suppression had implicitly been approved and could not be challenged in a later proceeding. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005).

Duty of Parties.

Even in capital cases, the Arkansas Supreme Court requires a defendant to have taken some action at trial to protect himself against perceived prejudice and to point out those actions in the appeal; the State Attorney General, as appellee, has the duty of double-checking a defendant's work to make sure all rulings adverse to the defendant are abstracted and briefed. Gardner v. Norris, 949 F. Supp. 1359 (E.D. Ark. 1996).

Instructions.

The Arkansas rule that has been followed in misdemeanor and civil cases of requiring the instructions to be briefed when error is assigned for the giving or refusing of an instruction should now be followed in felony criminal cases. Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ct. App. 1979).

The court does not consider an assigned error concerning instructions absent an abstract of the instructions given and will assume the jury was properly instructed. Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ct. App. 1979).

Jurisdiction of Trial Court.

After defendant's valid sentence had been put into execution and an appeal was taken to the Supreme Court, the trial court was without jurisdiction to modify, amend or revise it, either during or after the term at which it was pronounced. Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979).

Objections.

The Arkansas Supreme Court has repeatedly refused to interpret former Ark. R. Crim. P. 36.24 (see now Ark. R. App. P. Crim. 14) as absolving a party from making the appropriate contemporaneous objection at trial as a prerequisite to appellate review; indeed, the Court has flatly held that the Arkansas procedure requiring review of the record for error in life and death cases presupposes that an objection was made at trial. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

The Arkansas Supreme Court has noted repeatedly that its obligation to review the entire record in a capital case presupposes that an objection was made at trial; there is no requirement that the Arkansas court ever consider errors not raised by the appellant since it is the appellant's obligation to point out those errors at trial and on appeal. Gardner v. Norris, 949 F. Supp. 1359 (E.D. Ark. 1996).

While it is true that S. Ct. & Ct. App. Rule 4-3(h) (now (i)) requires the Arkansas Supreme Court to review the record for error in life and death cases, this review presupposes that an objection was made at trial; where defendant failed to make a specific motion under Ark. R. Crim. P. 33.1 for directed verdict indicating the particular deficiencies in the state's proof, it is as if he failed to object at all, and that failure below precludes review of the sufficiency of the evidence on appeal. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).

Preserving Error.

While formal exceptions need not be saved, objections must have been made to the proceedings in order to obtain review in the Arkansas Supreme Court. Alexander v. State, 103 Ark. 505, 147 S.W. 477 (1912); Morris v. State, 142 Ark. 297, 219 S.W. 10 (1920); Sullivan v. State, 161 Ark. 19, 257 S.W. 58 (1923); Howell v. State, 180 Ark. 241, 22 S.W.2d 47 (1929); Lewis v. State, 202 Ark. 6, 148 S.W.2d 668 (1941) (preceding decisions under prior law).

If a defendant fails to object to the competency of a witness at the trial, he cannot raise the question for the first time on appeal. Williams v. State, 257 Ark. 8, 513 S.W.2d 793 (1974).

An appellant, in order to preserve a question for review on appeal, had to do nothing more than make known to the trial court what he sought in the way of a ruling. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980).

Defense counsel was not required to ask that the witness' testimony be stricken since, under § 16-89-115, that remedy was available only when the state elected not to comply with an order of the court to deliver a statement to the defendant; nor was any further objection by defense counsel necessary. Blakemore v. State, 268 Ark. 145, 594 S.W.2d 231 (1980).

An appellant is barred from arguing a point not supported by an objection in the trial court, and the Arkansas Supreme Court overlooks a failure to object in the trial court only when the error is so great that the trial judge was under a duty to correct his own action immediately and when no objection or admonition could have undone the damage or erased the effect of his error from the minds of the jurors. Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980).

When life is at stake, the Arkansas Supreme Court will make its own examination of the record and reject or accept, on their merits, all objections made at trial, whether or not argued on appeal, but it will not consider a matter in the absence of an objection. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

Appellate court will not consider an argument on appeal unless it is made below. White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989); McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992).

Where the prosecuting attorney's comments during closing argument, indeed the expressions complained of, were so interlaced and interwoven that they constituted one theme that extended throughout the entire argument, defense counsel's motion for mistrial encompassed and preserved on appeal all the expressions at issue, not just the remarks prompting or preceding the objection. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

Defendant's point of error that the trial court should have excused a juror for cause was not preserved for appellate review because defense counsel essentially agreed with the trial court's ruling and conceded that there were no grounds to excuse the juror for cause; thus, there was no reversible error reviewable under Ark. Sup. Ct. & Ct. App. R. 4-3(h) (now (i)) or subsection (a) of this section. Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003), overruled in part, Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011).

Reduction of Sentence.

Where the court concluded that the evidence was sufficient to sustain the judgment, it was without authority to reduce defendant's sentence. Hurst v. State, 251 Ark. 40, 470 S.W.2d 815 (1971).

The Arkansas Supreme Court could not, under Ark. Const., Art. 4, § 2 and Ark. Const., Art. 6, § 18, reduce the sentence under former § 5-64-401(a)(1)(ii) as “excessive” where it was within statutory limits and showed no error in its passing. Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974).

The state Supreme Court has no authority to reduce a sentence that is not in excess of statutory limits. Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974).

Where three-year sentence originally proposed by judge was arrived at without consideration of defendant's indigency or the time he had spent in jail awaiting trial, the sentence was reduced to three years with credit for six months' pretrial incarceration. Walters v. State, 259 Ark. 447, 533 S.W.2d 517 (1976).

Where sentence was erroneously enhanced on basis of prior conviction, such error did not mandate a new trial since the Arkansas Supreme Court could reduce the sentence in lieu of reversing and remanding for a new trial. Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980).

Where the defendant was improperly sentenced and both parties agreed on what the sentence should have been, the appellate court correctly reduced the defendant's sentence to the minimum. Mincy v. State, 19 Ark. App. 80, 717 S.W.2d 213 (1986).

Court reduced the sentence for possession with intent to deliver cocaine from a term of sixty years to fifty years, the maximum term of years under § 5-4-501(a) in accordance with subsection (c)(3). Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).

Relation to Federal Habeas Proceedings.

Fact that the Arkansas Supreme Court was required, pursuant to Ark. Sup. Ct. & Ct. App. R. 4-3(h) (now (i)) and subsection (a) of this section, to review the entire record of defendant's criminal case for prejudicial error, after she was convicted of capital murder, did not undermine the district court's finding that she was precluded from obtaining federal habeas relief under 28 U.S.C. § 2254 with regard to claims that she had not raised in the state courts because those claims were procedurally defaulted: (1) the state Supreme Court's review obligation under Ark. Sup. Ct. & Ct. App. R. 4-3(h) (now (i)) was limited to issues that defendant actually raised in the trial or appellate courts; (2) the state Supreme Court could not be deemed to have reviewed the procedurally defaulted claims under App. R. 4-3(h) (now (i)) because defendant had not raised any of them in the state trial court or in her appellate briefs; and (3) the district court's procedural default holding was consistent with current U.S. Supreme Court precedent, which required the defendant to “fairly present” her federal claims to the state courts first, which required that she actually raise the claims in the state courts. Meadows v. Norris, No. 5:05CV00156 JMM, 2007 U.S. Dist. LEXIS 85428 (E.D. Ark. Nov. 9, 2007).

Reversible Error.

Evidence held insufficient to require reversal. Hobbs v. State, 86 Ark. 360, 111 S.W. 264 (1908) (decision under prior law); Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977).

Evidence held sufficient to require reversal. Garner v. State, 97 Ark. 63, 132 S.W. 1010 (1910) (decision under prior law).

The fact that the court ended its opinion with word “reversed” and was silent as to whether case was remanded or dismissed was of no consequence as the court's intent was evident from the opinion. Upton v. State, 255 Ark. 1071, 502 S.W.2d 454 (1973).

As to excessive sentences, see: Tenpenny v. State, 256 Ark. 523, 508 S.W.2d 752 (1974); Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974).

Sentence of Life Imprisonment or Death.

In first-degree murder prosecution, failure to instruct the jury that it may fix the punishment at life imprisonment was considered by appellate court even though not assigned as error in the motion for new trial. Smith v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943) (decision under prior law).

On appeals in capital cases the court will not only consider each assignment of error, but it will also have examined the transcript for each objection made in the trial court by the defendant. Rorie v. State, 215 Ark. 282, 220 S.W.2d 421 (1949) (decision under prior law).

In a capital case, the court reviewed every objection in the record. Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958), cert. denied, 358 U.S. 946, 79 S. Ct. 356, 3 L. Ed. 2d 353 (1959) (decision under prior law).

Where appellant had been sentenced to life imprisonment, the court was required to consider objections that the appellant had raised during the trial but did not argue on appeal in addition to each assignment of error. Smith v. State, 259 Ark. 703, 536 S.W.2d 289 (1976).

In a case where the sentence is life imprisonment without parole, the Arkansas Supreme Court must examine the record for prejudicial errors. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

The Arkansas Supreme Court is required by this section to review all errors prejudicial to the rights of the defendant in a case where a death sentence is imposed; this obligation is implemented through court procedure as outlined in Ark. R. App. P. Crim. 14 and Sup. Ct. & Ct. App. R. 4-3(h) (now (i)). Gardner v. Norris, 949 F. Supp. 1359 (E.D. Ark. 1996).

The Arkansas Supreme Court has an affirmative duty to review the record in all death-penalty cases for prejudicial error. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).

When a defendant has received a sentence of life imprisonment, it will continue to be his responsibility to bring forward an appeal; however, when the death penalty has been imposed, the Arkansas Supreme Court is required to perform an automatic review of the record for egregious errors such as those that fall within the exception to the plain-error rule. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).

Appellate court needed the complete record designated by a defendant who was appealing his conviction and life sentence for capital murder in order to fulfill its duty under this section and Ark. Sup. Ct. & Ct. App. R. 4-3(h) (now (i)) to conduct an independent review of the record for prejudicial error; thus, the trial court personnel were ordered to provide the missing parts of the record within 30 days. Howell v. State, 350 Ark. 47, 84 S.W.3d 442 (2002).

Where defendant was sentenced to life in prison and the record on appeal did not contain a complete transcript of jury selection and voir dire or opening and closing statements, the reviewing court was unable to review all errors prejudicial to defendant as required under Ark. Sup. Ct. & Ct. App. R. 4-3(h) (now (i)). Romes v. State, 355 Ark. 497, 139 S.W.3d 519 (2003).

Because the record was not sufficient for the Supreme Court of Arkansas to conduct its review under Ark. Sup. Ct. R. 4-3(i), reversal and remand for a new trial was required; for example, despite considerable reconstruction efforts, at least 14 bench conferences, written jury instructions, and two juror notes were omitted from the record, and there was no verbatim transcript of any dialogue between counsel and the court concerning jury instructions Thrower v. State, 2018 Ark. 256, 554 S.W.3d 825 (2018).

Standard of Review.

In reviewing the denial of a motion to suppress, the appellate court makes an independent examination based upon the totality of the circumstances and reverses only if the decision of the trial court was clearly against the preponderance of the evidence. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993).

The applicable statutory provisions as well as prior decisions of the Arkansas Supreme Court are crystal clear that the application of the reasonable doubt standard is required in appellate review of aggravating circumstances findings. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

An automatic review of the entire record in all death-penalty cases is useful when evaluating whether a defendant's waiver of his right to appeal was proper under Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988); such a review would also enable the court to determine (1) whether any errors raised in the trial court are prejudicial to the defendant, in accordance with this section and Ark. Sup. Ct. R. 4-3(h) (now (i)), (2) whether any plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), have occurred, and (3) whether other fundamental safeguards were followed. State v. Smith, 340 Ark. 257, 12 S.W.3d 629 (2000).

It was the intent of the Arkansas Supreme Court that the counsel appointed pursuant to the court's decision in State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999), would not serve as a representative of a party but rather would assist the court in its review because, when that counsel represents one of the parties, a conflict of interest exists. State v. Robbins, 340 Ark. 255, 9 S.W.3d 500 (2000).

Cited: Robertson v. State, 256 Ark. 366, 507 S.W.2d 513 (1974); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977); Hobgood v. State, 262 Ark. 725, 562 S.W.2d 41 (1978); Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978); Clark v. State, 264 Ark. 630, 573 S.W.2d 622 (1978); Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Wiman v. State, 266 Ark. 380, 583 S.W.2d 67 (1979); Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ct. App. 1980); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981); Curry v. State, 272 Ark. 291, 613 S.W.2d 829 (1981); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981); Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981); Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982); Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982); Long v. State, 280 Ark. 327, 657 S.W.2d 551 (1983); Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983); Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Pruett v. State, 282 Ark. 304, 669 S.W.2d 186; Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984); McDaniel v. State, 283 Ark. 352, 676 S.W.2d 732 (1984); Ruiz v. Lockhart, 754 F.2d 254 (8th Cir. 1985); Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984); Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985); Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985); Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985); Sims v. State, 286 Ark. 476, 695 S.W.2d 376 (1985); Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985); Snell v. State, 287 Ark. 264, 698 S.W.2d 289 (1985); Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986); Futch v. State, 288 Ark. 323, 705 S.W.2d 11 (1986); Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986); Hughes v. State, 289 Ark. 522, 712 S.W.2d 308 (1986); Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986); Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Ford v. State, 297 Ark. 77, 759 S.W.2d 556 (1988); Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989); Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Rodriquez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989); Burnett v. State, 302 Ark. 279, 790 S.W.2d 137 (1990); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990); Jackson v. State, 306 Ark. 70, 811 S.W.2d 299 (1991); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994); Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); Garrison v. State, 319 Ark. 617, 893 S.W.2d 763 (1995); Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003); Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227 (2010).