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                 SUPREME COURT OF ARKANSAS
                                         No.   CR-16-615


                                                   Opinion Delivered: March   2, 2017
COURTNEY JARRELL DOUGLAS
                    APPELLANT APPEAL FROM THE UNION
                              COUNTY CIRCUIT COURT
V.                            [NO. 70CR-15-324]

STATE OF ARKANSAS                           HONORABLE HAMILTON H.
                                   APPELLEE SINGLETON, JUDGE
                                                   AFFIRMED.



                            RHONDA K. WOOD, Associate Justice

        A Union County jury found appellant Courtney Douglas guilty of first degree

 murder and possession of a firearm by certain persons. On the murder charge, he received

 a sentence of life imprisonment plus an additional fifteen years for use of a firearm. On the

 possession-of-a-firearm charge, he received forty years and a fine of $15,000. For reversal,

 Douglas asserts that the circuit court erred by (1) denying his motion for new trial because

 court security had barred members of his family from the courtroom during voir dire and

 (2) denying his request to instruct the jury on manslaughter and justification.        After

 considering his arguments, we affirm.

        In August 2015, Douglas and Terrance Billings got into a dispute at the home where

 Douglas was staying. After the argument, Billings returned to his home. However, Douglas

 decided he wanted to talk with Billings some more about the disagreement and shortly

 thereafter went to Billings’s home. When he arrived, Billings met Douglas at the door, and

 an altercation began on Billings’s front porch. Douglas shot Billings, who died at the scene.
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       Douglas first argues on appeal that the circuit court erred in denying his motion for

new trial because court security denied members of his family entry into the courtroom

during voir dire. The decision whether to grant or deny a motion for new trial rests with

the sound discretion of the circuit court, and we will not reverse unless there is a manifest

abuse of discretion. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633. A circuit court’s

factual determination on a motion for new trial will not be reversed unless clearly erroneous.

Id. As we have repeatedly stated, issues of witness credibility are for the trial courts to weigh

and assess; we will defer to their superior position. Id.

       First, we must address the State’s allegation that this issue is not preserved for appeal

because Douglas failed to object at the time the alleged violation occurred. To preserve an

issue for appeal, a defendant must object at the first opportunity, and a motion for mistrial

must likewise be made at the first opportunity. Jordan v. State, 2012 Ark. 277, 412 S.W.3d

150. To be timely, an objection must be contemporaneous, or nearly so, with the alleged

error. Schnarr v. State, 2017 Ark. 10. However, as we recently stated in Schnarr, “[l]ike

other fundamental rights, a right to a public trial may be relinquished only upon a showing

that the defendant knowingly and voluntarily waived such a right.” Id. at 6 (citing Walton

v. Briley, 361 F.3d 431, 434 (7th Cir. 2004)).

       Here, one of Douglas’s family members testified that she did not tell his trial attorney

that she had been refused entry into the courtroom during voir dire. She first made his

counsel aware of the issue after the trial ended. The State offered no evidence to contradict

this testimony or otherwise assert that Douglas knew of the potential violation before the




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trial ended. Therefore, we cannot say that Douglas knowingly and voluntarily waived his

right to a public trial, and we conclude that the issue is preserved for appellate review.

       Turning to the merits of Douglas’s argument, in Schnarr, we reaffirmed that the right

to a public trial extends to voir dire. 2017 Ark. 10, at 7. However, not every closure rises

to the level of a constitutional deprivation of this fundamental right. Id. In some instances,

a closure may be so trivial or de minimus that it does not violate an appellant’s public-trial

rights. Id. In evaluating whether a courtroom closure is so de minimus that it does not

implicate a defendant’s Sixth Amendment right to a public trial, we consider length of the

closure, the significance of the proceedings that took place while the courtroom was closed,

and the scope of the closure. Id.

       Here, the circuit court, after hearing the testimony of Douglas’s family members and

court security, and after reviewing video surveillance from inside the courtroom, concluded

that there was no closure, not even a de minimus one. A circuit court’s finding of fact will

not be reversed unless clearly erroneous. Strom v. State, 348 Ark. 610, 74 S.W.3d 233

(2002). The court affirmatively stated that it did not close the courtroom, and there is

nothing in the record to suggest otherwise. Some family members claimed court security

kept them from entering the courtroom. However, the court found the testimony of the

family members was “without credibility,” stating their version of events was “just not

believable.” In its written order, the circuit court further stated that court security “did not

prevent the public or defendant’s family or friends from access to and/or entry into the

courtroom during the voir dire/jury selection process.” Accordingly, the circuit court’s

findings were based primarily on its assessment of the credibility of the witnesses. As the

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circuit court is in a superior position to evaluate the credibility of the witnesses, we defer to

its assessment of the witnesses’ testimony. See Johnson v. State, 2015 Ark. 387, 472 S.W.3d

486. Because the court’s finding that the courtroom was not closed is not clearly erroneous,

we hold that the circuit court did not abuse its discretion in denying Douglas’s motion for

new trial.

       Next, Douglas argues that the circuit court erred in denying his jury instructions on

extreme-emotional-disturbance manslaughter and justification. However, he admits that

his trial counsel “proffered the wrong instruction for the circumstance” and that the correct

jury instructions were not proffered. Our rule is well settled that counsel must object and

proffer a jury instruction in order to later appeal the instructions given to the jury. Willis v.

State, 334 Ark. 412, 977 S.W.2d 890 (1998). We have been hesitant to allow exceptions

to this requirement. Id. Nevertheless, Douglas asks this court to reverse the judgment

pursuant to the third and fourth exceptions espoused in Wicks v. State, 270 Ark. 781, 606

S.W.2d 366 (1980). The third exception to the contemporaneous-objection rule is when

the error is 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 correctly. Id. The fourth exception

provides that the appellate courts are not precluded from taking notice of error affecting

substantial rights, although they were not brought to the attention of the trial court. Id.

       We find no merit to Douglas’s argument that the third and fourth Wicks exceptions

apply. The third Wicks exception applies only when the “error is 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 correctly.” Rackley v. State, 371 Ark. 438, 440, 267 S.W.3d 578, 580

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(2007). Douglas cites no cases in which a jury instruction error has been considered by this

court on direct appeal in the absence of an objection and proffer of the instruction in the

trial court. We conclude that the circumstances presented here do not warrant application

of the third Wicks exception.

       Additionally, the fourth Wicks exception involves an evidentiary error that affects a

defendant’s substantial rights. The issue Douglas raises here concerns a failure to give the

proper jury instructions, which is not evidentiary in nature. Thus, his argument does not

fall within the fourth Wicks exception. Accordingly, we conclude that Douglas’s arguments

on appeal do not fall within any of our extremely narrow and strictly guarded exceptions to

the contemporaneous-objection rule. Therefore, because Douglas failed to bring the errors

he avers on appeal to the trial court’s attention, they are not preserved for our review.

       The record has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(i) and no

reversible error has been found.

       Affirmed.

       Jeff Rosenzweig, for appellant.

       Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.




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