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Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-15 10:46:46 Foxit PhantomPDF Version: DIVISION IV 9.7.5 No. CR-20-100

Opinion Delivered October 7, 2020

DONNIE SAMUEL WITHERSPOON APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT [NO. 26CR-18-860] V. HONORABLE JOHN HOMER WRIGHT, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

The Garland County Circuit Court convicted Donnie Witherspoon of residential

burglary. He concedes that he failed to preserve the issues he now raises on appeal by objecting

at trial, but he argues that we should reach the merits of his arguments because this case falls

within one of the exceptions to the contemporaneous-objection rule outlined in Wicks v. State,

, 785–87,

, 369–70 (1980). We disagree and affirm.

On appeal, Witherspoon argues that the court erred in admitting the testimony of Hot

Springs police officer Matthew Cheatam regarding a witness’s description and identification

of Witherspoon. Witherspoon claims that Officer Cheatam’s testimony violated the

Confrontation Clause and was inadmissible hearsay. He does not dispute that he failed to make

either objection during the trial. Our law is well settled that issues raised for the first time on

appeal, even constitutional ones, will not be considered. White v. State,

,

(citing Paschal v. State,

,

). Witherspoon nevertheless urges us to consider his argument under the fourth

exception outlined in Wicks, 270 Ark. at 785–87, 606 S.W.2d at 369–70. These exceptions

occur when (1) a trial court, in a death-penalty case, fails to bring to the jury’s attention a

matter essential to its consideration of the death penalty itself; (2) a trial court errs at a time

when defense counsel has no knowledge of the error and thus no opportunity to object; (3) a

trial court should intervene on its own motion to correct a serious error; and (4) the admission

or exclusion of evidence affects a defendant’s substantial rights. Thomas v. State,

,

(2007).

The fourth Wicks exception derives from Arkansas Rule of Evidence 103(d), which

provides that an appellate court “may take notice of errors affecting substantial rights although

they were not brought to the attention of the [trial] court.” Fukunaga v. State,

. Witherspoon argues that, because his right to confront witnesses against him is a

“substantial right,” the fourth Wicks exception applies, and we should address the merits of

his appeal despite his failure to object below. He is wrong as a matter of law.

Our case law is quite clear that Wicks presents only narrow exceptions that are to be

rarely applied. White,

, at 8–9,

. Both the Arkansas Supreme

Court and the Arkansas Court of Appeals have held that these exceptions are not intended to

apply where a party simply fails to make a contemporaneous objection.

at 9–10,

; Mahomes v. State,

,

. As we explained in

Mahomes, the Arkansas Supreme Court in White “refused to apply the Wicks exceptions to an

alleged Confrontation Clause error[.]”

,

. This

precedent severely undercuts Witherspoon’s claim that Wicks must apply in the present case

2 because the alleged error impacts a “substantial right.” Moreover, “[t]he White court . . .

declined to apply the fourth Wicks exception—that the evidence affected the defendant’s

substantial rights—to a situation where, like here, there was a simple failure to make a

contemporaneous objection at trial.”

Because Witherspoon failed to raise his objections below and the fourth Wicks

exception does not apply, we hold that his arguments are not preserved for our review.

Affirmed.

GRUBER, C.J., and MURPHY, J., agree.

The Lane Firm, by: Jonathan T. Lane, for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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