Page:Wicks v. State, 270 Ark. 781 (1980).pdf/3

Rh Cir., 1980). The Court of Appeals held that guidelines are required only in capital cases.

Inasmuch as the Rogers case may yet be carried to the Supreme Court, we need only say in disposing of the present case that we adhere to our view that such guidelines are unnecessary except in capital cases. Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980); Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979). It is the finality of a death sentence that makes capital cases unique. A life sentence has no similar irrevocability. If guidelines were mandatory in life sentence cases, it would be only the shortest of steps to extend the requirement to a sentence of, say, 50 years. Beyond that there is no reasonable stopping place. Moreover, a jury hardly needs to be told about matters that it would inevitably consider anyway, such as the defendant's youth or his mental condition or his past criminal record. Such matters are ordinarily emphasized by counsel in their closing arguments. The common law approach has been to allow juries, representing the common sense of the community, to impose punishment on a case by case basis. We are unwilling to say that for centuries common law jury trials have been a continuing denial of due process of law. Unless the Supreme Court so holds we do not think it proper for us to take that view.

Second, it is argued that the evidence does not supportthe verdict, for the reason that no rational person could find Wicks guilty beyond a reasonable doubt. The proof, however, simply presented a question of fact for the jury. Wicks flatly denied the charges and sought to show by other witnesses that he was elsewhere at the time of each offense. The charges, however, were not filed until some three months after the second incident, Wicks's identity not being known. After that lapse of time both Wicks and his witnesses were understandably handicapped in trying to pinpoint his whereabouts on either night. It cannot be said that the proof shows conclusively that Wicks could not have committed either crime. Thus the issue was for the jury.

Third, it is insisted that the trial judge should have granted a motion for a mistrial after the following testimony by the prosecutrix on direct examination: