                                 Cite as 2017 Ark. App. 286


                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CR-16-778



                                                 Opinion Delivered: May   10, 2017
TYRUN LAMONT JONES
                                APPELLANT
                                                 APPEAL FROM THE PULASKI
                                                 COUNTY CIRCUIT COURT,
V.                                               FOURTH DIVISION
                                                 [NO. 60CR-15-469]

STATE OF ARKANSAS
                                   APPELLEE HONORABLE HERBERT T.
                                            WRIGHT, JUDGE

                                                 AFFIRMED


                          RAYMOND R. ABRAMSON, Judge

        A Pulaski County jury convicted Tyrun Lamont Jones of second-degree murder. 1

 The jury sentenced him to 300 months’ imprisonment with a firearm enhancement of 180

 months. On appeal, he argues that his conviction should be overturned because the circuit

 court abused its discretion in excluding a witness pursuant to Arkansas Rule of Evidence

 615. He also argues that the case should be remanded for resentencing because the

 prosecutor made improper statements during closing remarks at the sentencing stage of trial.

 We affirm.

        On February 13, 2015, the State charged Jones with first-degree murder of Alex

 Booker. The case proceeded to trial on May 3, 2016. On the first day of trial, Brianna Jordan



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         The jury also convicted Jones of possession of a firearm by certain persons, but that
 conviction is not at issue on appeal.
                                 Cite as 2017 Ark. App. 286

testified that she lived in an apartment with Anita Henderson and that she had a sexual

relationship with both Jones and Booker. She further testified that on December 24, 2014,

she was at her apartment with Jones and Henderson and that Jones texted Booker on her

phone to come to the apartment. She explained that Booker later came to the apartment,

that Booker and Jones had a disagreement, and that Jones shot Booker with a gun. Jordan

could not recall how many times Jones fired the gun or where Booker had been shot. She

stated that immediately after Jones fired the gun, she, Booker, and Henderson fled the

apartment.

         On the second day of trial, Henderson testified that she saw Jones shoot Booker four

times in his back with a gun in her apartment. She also testified that she and Booker fled

the apartment after the shooting. On cross-examination, defense counsel asked Henderson

whether, following Booker’s death, she had spoken with Jones in prison while she was

visiting her brother. Henderson denied it. Defense counsel then asked Henderson whether

she had told Jones that Jordan killed Booker, and Henderson further denied speaking to

Jones.

         Following Henderson’s testimony, defense counsel informed the court that it wanted

to call Georgette Giles, who was not on the witness list and who had been present in the

courtroom that day, to impeach Henderson’s testimony. Defense counsel explained that

Giles had discussed with him certain information that could be used for impeachment

purposes “after the close of business yesterday” and that he did not notify the State about

Giles’s testimony because he believed Henderson would tell the truth on the stand. Defense

counsel proffered Giles’s testimony that about two months prior to the trial, while she was


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visiting Jones in prison, she heard Henderson tell Jones, “[L]et’s put it all on [Jordan.]” Giles

stated that she did not attend the first day of trial but that she was in the courtroom for the

entirety of Henderson’s testimony on the second day.

       The State objected to Giles’s testimony, asserting that it violated Arkansas Rule of

Evidence 615 because the rule had been invoked and Giles had been in the courtroom

during Henderson’s testimony. The court found that

       the problem the Court sees in this case in addition to the inconsistencies in her
       testimony, is the fact that she reported this last night. That’s before today. Defense
       counsel let this witness be called this morning and testify in this witness’s presence to
       something he knew she was [going to] refute . . . Defense counsel knew . . . that this
       witness, this witness right here, that she was going to refute the testimony of Anita
       Henderson or might refute it depending on what Miss Henderson said. Yet you
       allowed the State to call that witness without bringing to the attention of the Court
       that a found contrary witness was in the Court Room . . . the Court’s striking the
       witness from the list.

       Jones later testified on his own behalf. He stated that Jordan shot Booker in

Henderson and Jordan’s apartment and that Henderson was not present during the shooting.

He explained that after he saw Jordan shoot Booker, he immediately fled the apartment. He

admitted that he initially told police that a man named Quincy shot Booker.

       The jury convicted Jones of second-degree murder and found that he had used a

firearm in committing the felony. The case then proceeded to the sentencing phase, and the

prosecutor stated the following during closing remarks:

       And you get to hear the emotional impact that [Henderson]’s out in the hall suicidal.
       And [Henderson] is a nice person. She’s a good person. If she had ever been in
       trouble before, you would have heard it. She has. She’s got emotional problems for
       seeing the violence that she has, that she had seen. And who started that? This man.
       So, [Henderson] had the same, the same opportunities as he did, yet he has people
       that he could go to for help. Who does [Henderson] have to go to for help, her
       psychiatrist.


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The State further told the jury that

       [there are] two courts involved. There’s the one court where you’ll be judged at the
       end, but there’s another court right here right now to take care of society.

The jury later sentenced Jones to 300 months’ imprisonment for second-degree murder

with a 180-month firearm enhancement. Jones timely appealed his conviction to this court. 2

       On appeal, Jones first argues that his convictions should be overturned because the

circuit court abused its discretion in excluding Giles’s testimony pursuant to Arkansas Rule

of Evidence 615. Rule 615 provides that “at the request of a party the court shall order

witnesses excluded so that they cannot hear the testimony of other witnesses.” The purpose

of Rule 615 is to expose inconsistencies in the testimony of different witnesses and to

prevent the possibility of one witness’s shaping her testimony to match that given by other

witnesses at trial. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249 (citing Adams v. State, 2013

Ark. 174, 427 S.W.3d 63).

       “There are three possible methods of enforcement of an exclusion order that are

available to a trial judge: (1) citing the witness for contempt; (2) permitting comment on

the witness’s noncompliance in order to reflect on her credibility; and (3) refusing to let the

witness testify.” Mooney v. State, 2009 Ark. App. 622, at 13, 331 S.W.3d 588, 595 (citing

Baylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987)). “A trial judge can exercise narrow

discretion to exclude a witness’s testimony only when the noncompliance is had with the

consent, connivance, or procurement of a party or his attorney” but that discretion should

be “rarely exercised.” Id. at 10, 12, 331 S.W.3d at 594, 595. The violation by a witness of



       2
           Jones filed a pro se notice of appeal, and his attorney also filed a notice of appeal.

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the rule of sequestration through no fault of, or complicity with, the party calling him,

should go to the credibility rather than to the competency of the witness. Id. Our supreme

court has consistently held that it will not reverse the circuit court’s decision regarding this

issue absent a showing of prejudice. Adams, 2013 Ark. 174, 427 S.W.3d 63. Further, our

supreme court has held that an appellant failed to establish prejudice based on the exclusion

of testimony when the testimony was essentially inconsequential. Daniels v. State, 293 Ark.

422, 739 S.W.2d 135 (1987).

       In this case, we hold that Jones cannot show prejudice as result of the court excluding

Giles’s testimony. Giles’s testimony would have attacked Henderson’s credibility only on

whether she spoke with Jones in prison about implicating Jordan for Booker’s death.

Nonetheless, at trial, both Jordan and Henderson testified that Jones shot Booker in their

apartment. Furthermore, defense counsel asked Henderson at trial whether she and Jones

discussed implicating Jordan for Booker’s death, and Henderson denied it. Given this

evidence, we cannot say that Jones has demonstrated reversible error.

       Jones also argues that this case should be remanded for resentencing because the

prosecutor made improper statements regarding Henderson and “a higher court” during

closing remarks at the sentencing stage. He asserts that the comments are fundamentally

unfair and violated his due-process rights. He concedes that he did not object to the

statements at trial and thus the issue is not normally preserved for our review, but he argues

that this court should consider the issue pursuant to the third Wicks exception.

       The third Wicks exception to the contemporaneous-objection rule applies when the

error is so flagrant and so highly prejudicial in character as to make it the duty of the court


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on its own motion to instruct the jury correctly. Wicks v. State, 270 Ark. 781, 606 S.W.2d

366 (1980). Our supreme court has allowed issues to be considered under the third

exception when the error affects the very structure of the criminal trial. Anderson v. State,

353 Ark. 384, 108 S.W.3d 592 (2003). Our caselaw is clear that Wicks presents only narrow

exceptions that are to be rarely applied. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55

(citing Anderson, 353 Ark. 384, 108 S.W.3d 592). Specifically, the third exception has been

applied very rarely to cases including the right to a twelve-person jury, violations of Arkansas

Code Annotated section 16-89-125(e) (Repl. 2005), and statements by a prosecutor in voir

dire that have the effect of shifting the burden of proof. Id. (citing Ayala v. State, 365 Ark.

192, 226 S.W.3d 766 (2006); Anderson, 353 Ark. 384, 108 S.W.3d 592; Goff v. State, 329

Ark. 513, 953 S.W.2d 38 (1997); Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d

690 (1995)).

       On the other hand, our supreme court has refused to apply the exception where a

prosecutor was erroneously allowed to make statements during closing arguments that

violated a defendant’s right to remain silent. Chunestudy, 2012 Ark. 222, 408 S.W.3d 55. In

this case, we hold that the prosecutor’s statements are more similar to those statements in

Chunestudy and are not errors that fall into the third Wicks exception. Accordingly, we

decline to address Jones’s argument concerning the statements.

       Affirmed.

       HIXSON and MURPHY, JJ., agree.

       Robert M. “Robby” Golden, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.


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