Page:Wicks v. State, 270 Ark. 781 (1980).pdf/5

Rh Fifth and sixth, the appellant argues that the court should not have excused a juror who wavered about his ability to impose life imprisonment for rape and that the court erred in submitting a single offense to the jury when both the information and the State's proof charged two offenses. We are considering these two points together, because they are both defective in not being supported by an objection in thetrial court.

It is apparent at the outset that trial counsel may have deliberately chosen not to object in both instances. That is, counsel may have had a reason for not wanting the juror in question and may understandably have thought it better for his client to face one possible conviction for rape rather than two. We prefer, however, to stress the absence of any objection in the trial court, because arguments for a reversal without a supporting objection are being made with increasing frequency, especially when, as in this case and in appeals briefed by the State Appellate Public Defender, counsel on appeal were not also counsel in the trial court. We think it best to make our position clear. Some courts, especially the federal courts, have a "plain error" rule, under which plain errors affecting substantial rights may be noticed although they were not brought to theattention of the trial court. Federal Rules of Criminal Procedure, Rule 52(b); State v. Meiers, 412 S.W.2d 478 (Mo., 1967). In Arkansas, however, we do not have such a rule. Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980). To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Citations to that familiar principle are unnecessary.

Exceptions to the basic requirement of an objection inthe trial court are so rare that they may be reviewed quickly. In two cases in which the death penalty was imposed, we did not require an objection to the trial court's failure to bring to the jury's attention a matter essential to its consideration of the death penalty itself. In the earlier case the court failed to require the jury to find the degree of the crime, as required by the statute, so that the jury might have imposed the death