Brown v. State

Elizabeth Gammon BROWN v. STATE of Arkansas CR 94-1430 Court of Arkansas

Supreme delivered Opinion July [Rehearing denied September 1995.] John H. Bradley, for appellant. Bryant,

Winston Gen., by: Vada Berger, Att’y Att’y Asst. Gen., for appellee. the Arkansas State Glaze, February Justice. On

Tom Police, Police Blytheville Depart- and Osceola Police Department Barbara Williams with informant worked confidential together ment and 6:30 night, p.m., On that between 6:00 buy. to make a cocaine Williams, was wired who Lee Dwight accompanied State Trooper mike, her to 122 E. Seemes as she drove vehicle body with a residence, the exited the Williams to front pulled up Osceola. and Lee Trooper the door. Williams vehicle and knocked on the be a who answered the door to black later described the person feet, inch, female, and known one 195 pounds, five approximately house, Brown. Williams entered Elizabeth appellant Lee, on and light Trooper was but left the door open. porch feet witnessed the away, ten to fifteen vehicle sitting take whereby Lee an exchange place women saw talking. two Brown, gave something and Brown money gave Williams Lee and then walked back directly Trooper return. Williams had known Brown him two of crack cocaine. Williams gave rocks and later described Brown as to this transaction prior drug sale, describing In Williams one who sold her the cocaine. testified, Lee “I think was where Officer don’t the door open version dif- I can’t In this one Williams’s say.” see this. respect, Lee’s, who said he had seen the sale. fered from Trooper unlawfully with deliv- charged having The state later Brown $60.00. Brown also exchange ered cocaine in for was offender. being habitual trial, and tes- At Williams’s Lee’s presented Trooper state timonies, views of Brown’s sale and their respective supporting addition, Mike Officer Mar- of cocaine to Williams. delivery allowed, that he had objections, testify over shall was Brown’s sale broadcast over February recorded as was related that he microphone. Williams’s Marshall also body her identify Brown five and able to voice. years known for was and that unintelligible that the was objected, arguing tape Brown Brown’s voice patterns. Marshall was not qualified identify and her entire defense Brown then her case-in-chief testified that she one of alibi. She and other witnesses at a at the the state she cocaine alleged cafe time sold working At the end Brown offered instructions to Williams. of posses- 2d 301 302 on the lesser included offense AMCI and cocaine, sub- them. denied judge the trial and sion as a sentenced Brown a verdict of returned sequently Brown appeal, On fifty years imprisonment. offender to habitual her lesser-included in denying court erred the trial contends affirm. testimony. Officer Marshall’s allowing instructions State, 311 Ark. Whitner v. Brown cites In her first argument, that the offense proposition includes the lesser-included aof controlled substance delivery so, a possession being simple and that offense of possession recog- While she jury. have given instruction should been trial court to permit that Whitner and other precedent nizes where no rational basis instructions such lesser-included reject sum, In basis existed here. Brown a rational argues is presented, Williams’ and exists between says glaring Brown a conflict Lee saw actually whether bearing Lee’s testimonies Trooper — no one it Williams testified drug the sale Lee said he saw and that, without the lesser- else could have seen it. Brown concludes instructions, included the was the opportunity prevented there no of of value money anything believe that was transfer charge of controlled substance. required delivery of that all wit- argument ignores Brown’s fact of state’s 2, 1994, at on February nesses Brown the crime scene placed that, in her view of what although gave testimony hap- Williams her. no one else could have seen sale pened, drug except of Williams’s in this conclude Regardless respect, statement that, under review the state’s Brown was objective Febru- clearly described as the sale on person making drug 2. Even more entire defense was based ary significant, Brown’s and selling alibi her contention that she was innocent of upon cocaine to Williams she was elsewhere at the time the crime and not have the woman claimed been Williams sold the cocaine. 218, State, Ark. 663 case Roberts v. 281

S.W.2d the trial supports judge’s 178 alibi case which Roberts, theft, In ruling here. the defendant was he theft receiv but asked the lesser-included offense of incon ing. This court held Roberts’ instruction request that, alibi sistent with his own because his witnesses proof theft, were offered to request establish he committed no 416

for the lesser-included offense of theft ratio- by receiving was not Here, likewise, nal. because Brown’s established she proof elsewhere innocent of in the cocaine participating transac- Williams, tion with to give defies common sense words, of cocaine she possession requested. other occurred, if Brown was not when the drug sale present log- she could not be ically present and in a lesser offense. participate Such proffered instruction could do but nothing jury. confuse Thus, we hold the trial court was correct in it. refusing

In sustaining the ruling, trial court’s we continue to hold that it is error for the court to or fail instruct refuse offense, on the lower where clearly the evidence shows that defendant is either greater inno charged or cent. Over past century, Arkansas cases have con wisely and State, sistently applied legal this See principle. Mitchell v. 314 343, (1993); State, 64, 862 254 S.W.2d Vickers v. 313 Ark. Fry State, 316, (1993); 852 S.W.2d 787 v. 309 Ark. S.W.2d 829 State, 444, (1992); 415 v. Watson 308 Ark. 825 S.W.2d 569 State, 417, (1992); Flurry (1986); v. 290 Ark. 720 S.W.2d 699 State, 218, v. (1984); Roberts State, 281 Ark. 663 S.W.2d 178 v. Smith 403, State, 277 Ark. 642 (1982); S.W.2d 299 Lovelace v. (1982); State, 276 Ark. 336, 637 S.W.2d 548 v. Sargent (1981); Beed v. 271 Ark. (1980); S.W.2d 898 Barksdale v. (1977); Parker (1975); State, 420, (1972);

Caton v. Ark. 252 479 S.W.2d 537 Clark v. State, 717, State, (1925); 169 Ark. 276 Rogers S.W. 849 v. 136 161, (1918); State, 206 S.W. 152 Crenshaw v. 271 Ark. (Ark. 1980). App. While in dissenting opinions (1986), v. 720 S.W.2d and now 694 overruled, this rule suggest case this of law be we fail to simply find reason do in good to so. Even where are arguments cases — — balanced which closely is not conceded here has this court held the advantage that certainty the law should tip favor rule scales in of the of stare decisis. Comer v. (1953). Sound reason undergirds here, legal

established stare dic principle issue decisis tates our continued it.1 application of Jones, CR94-717, dissenting opinion

1 A suggests refers to State v. that case trial court that the argument Brown’s second next turn to identifying testimony Marshall’s Officer admitting erred in sale. drug at the time and recorded one heard as the voice sub- it was inadmissible because tape claims the She also recording trial court admitted inaudible. The stantially challenge not Brown does her alibi. refuting for the purpose authenticity. the tape’s out the Evidence sets Arkansas Rules of 901 of the

Rule testimony voice identification be laid prior that must foundation as follows: and provides or identification. of authentication

Requirement of authentication (a) Provision. The requirement General admissibility precedent identification as a condition or finding to support evidence sufficient is satisfied claims. is what its proponent the matter question and not (b) only, of illustration By way Illustrations. limitation, of authenti- are following examples way with the requirements identification conforming cation or rule: of this

* * ‡ voice, whether (5) Identification of a Voice identification. electronic trans- heard or mechanical or through firsthand hearing based recording, by opinion upon mission connecting at time under circumstances voice alleged speaker. Roleson there was insufficient foun- the conviction because reversed of Roleson’s testify concerning identity dation for a witness The witness opined conversation. during telephone voice or talked with he had not met although the caller was Roleson those voice sounded like. Under him and did not know what his circumstances, an opinion offer qualified the witness was there, different, clearly holding Jones never with the here. Jones is since is inconsistent hand, defended, Here, stating shooting she not the victim. on the other Brown denied crime, commit- only when the offense was commit the but she was elsewhere did not ted. 418

concerning of the voice on the evi- identity telephone. dence here contrasts Officer asserted significantly, given Marshall’s familiarity Ms. Brown’s voice. trial court found that the inaudible and unintelligible affected the

portions recording weight of the evidence rather than view of the limitation admissibility admis- its Indeed, sion of voice identification. had an opportunity listen to and were in tape, they position Offi- assess cer Marshall’s ability identify voice.

As to the matter general audibility, have held recordings are admissible “unless the tape inaudible por so tions are substantial as to render the a whole recording as State, 33, 310 untrustworthy.” Loy (1992); v. 832 S.W.2d 499 State, 154, (1990). Ham v. 301 Ark. 782 S.W.2d 577 We will not, however, reverse a decision to admit a recording absent an abuse of discretion. Id.

The trial court admitted the recording pur voice, pose identifying Ms. Brown’s and not for content. That jury might have been able to discern what being said was of little We cannot consequence. trial say court abused its discretion allowing admission of the recording.

Affirmed. J., concurs; Newbern,

Dudley, JJ., Roaf, Brown dis- sent. Justice, Dudley,

Robert H. I concurring. concur State, result of the majority In v. opinion. (1986), this court held that when a defendant crime, that he

asserts innocent entirely of any no rational basis offense, exists to instruct the on a lesser included as the issue for the jury is whether the defendant is guilty charged. holding, so this court Holloway overruled v. 18 Ark. (1986), App. Flurry (1986). discussed, App. We also did not but overrule, Fike v. 504 S.W.2d where the defendant was convicted of assault with intent to rape after the trial court refused instruct the jury on the lesser Fike, included assault. Reversing we said: bar, that the pros- not questioned at it is In the case The verdict of to sustain. is sufficient testimony ecutrix’s However, the sole has jury intent to rape. with assault a witness’ testi- or of any part all accept prerogative Therefore, the jury or not. controverted whether mony facts, the evidence to evaluate as trier right, the absolute assault was com- whether an unlawful and consider even him. or acquit mitted appellant upon added). 959, (emphasis 504 S.W.2d at 365 255 Ark. at that, Doby, in it was just but dissenting opinion I joined out in the major- The law became that set a dissenting opinion. number that time we have had a of cases Doby. in Since ity opinion are described as perplexing. best 510, 730 S.W.2d 901 Fladung that the be instructed the trial court denied motion appellant’s offenses of assault and first aggravated on the lesser included we Id. at 730 S.W.2d at 902. On appeal assault. 511. degree reversed, that the holding testimony agreed appellant were much the same until appellant and the appellant Trooper with the after which their stories pistol, diverged. turned seat at We that the could have Id. at 903. held or believed all of either version of the events of each ver- parts 513-14, at at Hickman sion. Id. 730 S.W.2d 903. Justice dissented without Id. at 730 S.W.2d at 904. opinion. from distinguished Fladung circumstances those out that in Doby Fladung never by pointing appellant he and that

denied that his defense was based produced pistol Id. at producing his upon purpose pistol. Nonetheless,

at if of fact appellant’s purpose question 903. of a then it is difficult to possession pistol drugs, same as from Fladung See 1983 distinguish principle. Supple- (1993 Comments to Ark. Code Ann. 5-1-110 Com- mentary § mentaries). recent in this line of most decision cases perplexing (1988), where Henson v.

was conviction of appellant’s aggravated robbery reversed that the trial court erred not grounds giving requested robbery. instruction on the lesser included offense of Appellant and did not testify. evidence showed that pleaded he hand in his after he put pocket the act of surprised retreated, a safe. The victim emptying thinking appellant for a that the facts were reaching gun. Holding susceptible more than one we held that the trial court should interpretation, have instructed on a robbery as lesser included offense. Id. at at 560-61.

Doby has now been our of Ark. Code Ann. interpretation 5-1-110(c) nine and the yeai», for statute has not been § amended. case, to decide the and then struggled expressly overruled two cases to make the The trial in holding. court this case fol- Doby lowed the and reasoning refused to AMCI 2d give Thus, and 302. the trial correctly court followed our law. Under conditions, ourselves, these wrong seems to again reverse and again directions change by overruling Doby without a clear time, warning to the bench and bar. At the same our holdings under the rationale of have been and the rea- perplexing, Thus, soning is expressed dissenting unassailable. I con- case, cur in the in majority this but in opinion cases tried after date, this I will join in reasoning expressed today’s dissent- ing opinion. Justice, Jones, Newbern, In dissenting. State v.

David which is being released this date, argued State eloquently, and correctly, that effectively the function of a in our jury society is to ascertain the truth. There- fore, the State argued, a criminal defendant should not be allowed a gamble by having instructed jury only on the offense charged without instructions on lesser included in offenses hope will find the proof lacking acquit. point so well that, made if the State’s evidence a supports that a finding defendant, lesser offense was committed the jury should be allowed to convict of that offense and not be limited to acquit- tal or conviction of the offense so charged, long as the lesser is, definition, included in the offense charged. State v. Jones declare error because the Trial Court declined to on instruct lesser offenses included in the murder offense charged. In this the shoe is on the other foot. Elizabeth Gam- mon Brown was delivery cocaine. To prove offense, actual, the State was required “the prove construe- tive, from one to another of con- person or transfer attempted in for exchange money trolled substance or counterfeit substance there an relation- agency of value whether or not anything 5-64-101(f) 1993). Possession of Code Ann. ship.” (Repl. § included in the controlled substance is lesser offense delivery. Whitener (1992). Ms. Brown was not allowed to have the instructed on the lesser included offense of because possession she pre- sented alibi defense. She thus was an “all or noth- placed ing” as was the State at the trial the Jones case. position just that the State should not have been Having agreed placed of the members of this turn position, majority Court Ms. Brown and say instruction on a lesser included request offense was denied she properly an alibi defense. That illogically ignores the fact that the improperly State’s evidence a rational basis for presents instructing on pos- session as well as It in places sale. Ms. Brown the “all or noth- ing” position say today was incorrect when to the applied State in the Jones case. decision is unfair and nonsensical. If there was a rational basis for the to be instructed on the lesser included Ark. Code possession, Ann. 5-1- § 110(c) 1993), then the (Repl. jury should have been allowed to consider a lesser included offense so it could fulfill its func- tion as the finder truth.

The evidence the decision not to affecting instruct on the lesser included A as follows. transaction drug Williams, between Brown and arranged Ms. Barbara a confi- dential informant. Ms. Williams drove her car police loca- tion where she was to meet Ms. Brown. Officer Lee State car, Police sat on the side of the passenger Officers Robin- nearby son and Marshall were in a separate vehicle listening what recording was said through body worn microphone Ms. $60 Williams. Officer Lee testified he Ms. in gave Williams $20 the form of which three bills she carried in her hand as she drove the car in without putting money pocket purse.

Officer Lee testified that Ms. Williams her car in parked Osceola, front of a in residence which was allegedly home of one of Ms. Brown’s friends. Ms. Williams knocked on the Adoor. woman answered and allowed Ms. Williams to inside step inside, that, were although they the house. Officer Lee testified shut, and the wooden door larger, the screen door had been He he had been left A was on. testified light open. porch Officer Lee stated he taking see the transaction as it was place. money exchange saw Ms. Williams hand the other woman returned to the car and something. directly Ms. Williams then handed Officer two rocks of crack cocaine. Lee

Barbara version was consistent Officer Lee’s Williams’ in her testimony money she first said she except put pocket, testified, and then that not certain of that. She also “I don’t she was think the Lee could see I can’t door was where Officer this. open Ms. Brown. say.” money She testified she No testi- gave anyone was offered to show that Officer Lee or else ascer- mony money tained that Ms. Williams was not possession when returned the car. she facts,

On that the jury, assessing these it is apparent decided that the State’s evidence could have State had not easily beyond a reasonable doubt Ms. Williams Ms. proved gave that, Brown money. majority says Yet the of this Court evidence, Ms. Brown the jury alibi has to believe all of the State’s evidence or none of it. It is that Ms. wrong say way Brown’s alibi evidence is in relevant to the State’s bur- den of proof.

Our on the matter of on lesser included position instructing offenses was Caton v. thoroughly exposed as follows: This court has of an zealously protected right instructed on jury accused to have lesser offenses included in a offense We have greater charged. consistently held that a trial court commits reversible error when it a correct a give defining refuses lesser when included offense and its there is testi- punishment on which the defendant be found mony might guilty State, v. lesser rather than the offense. Walker 239 greater 172, 13; State, 121, Bailey 388 S.W.2d v. 206 Ark. State, 193, 1081; 1010; S.W.2d Smith v. 150 Ark. 233 S.W. 444, 409; State, State, v. 74 Ark. 86 S.W. Davis v. Allison 569, 72 Ark. 82 S.W. 167. have been so careful to see lesser offenses pass upon that a has an opportunity held well that we have charged as one greater an instruction which give per it is not error to prejudicial of a lower offense guilty mits the to find a defendant objects, than that even when the defendant charged, the evidence him to be of the offense guilty higher shows State, 688, or of at all. Kurck v. 235 Ark. nothing 713, denied, 910, 1299, S.W.2d cert. 373 U.S. 83 S.Ct. Still, L.Ed.2d 412. error for the court to fail to is not offense, instruct on the lower where the evidence clearly shows that the defendant either greater State, 561, offense Gilchrist v. 241 Ark. charged innocent. 329; State, 976, 203 Ark. 409 753; Sims v. State, 717, 849;

Clark v. Rogers 169 Ark. 276 S.W. State, 161, v. 136 Ark. 206 S.W. 152. And we have held that where the included lower higher charged there was evidence sufficient to present ques either, tion of fact as to the defendant’s guilt trial judge’s instruction over objection, defendant’s that the defendant could not under the be convicted testimony indictment, lower offense than that charged State, Bryant reversible error. v. 41 Ark. 359. State, 254,

In Brewer v. (1980), 271 Ark. 608 S.W.2d 363 stated, we “We have held that where there is the slightest evidence instruction, to warrant such lesser included it was [a offense] error to refuse to it.” give

In a in which we subsequent decision were divided sharply (4-3), Doby v. 720 S.W.2d 694 said there is no basis for lesser included offense instruction when the defendant simply denies offense charged occurred. Doby was of a controlled possession substance with intent to deliver. He denied the offense and testified it simply occur, did not thus of an contradicting testimony officer who said Doby admitted to him that orally large amounts of controlled substances and that he had been them. That selling has holding been cited and specifically followed in a number of cases. See e.g., Vickers v. 313 Ark. 852 S.W.2d 787 Fry State, (1993); (1992); v. 829 S.W.2d 415 Wat Flurry (1992); son v. (1986). The were Doby decision and the ones which have followed it incorrect. decision,

The in the problem Doby expressed with the as in that and as the State asserted dissenting opinion Jones case released the State did not discuss the today, although Doby it was that it foreclosed the from avenues opinion, jury follow in might dissenting its search for the truth. The opinion Doby the case made that and stated: point same

Rather than the “rational determination making by basis” accused, had evaluating against state’s evidence cases, shifted previous [majority] opinion subtly to the emphasis evidence accused. The result kind thinking of this is that of plea guilty obviates the included necessity giving lesser offense instruction. The to that response may assertion be that we will when the only decline to it accused require testifies or other evidence presents denying guilt. Again, this has effect of denying opportunity evaluate the state’s evidence it is all true or except say all false.

That is made the State and precisely argument approved by this Court in the Jones we today. case release cites a majority opinion long string cases purports to be in agreement with the decision and its progeny. list is until the are examined. Here an exam- impressive cases is ination of those cases.

In Rogers v. 206 S.W. 152 Rogers was convicted of murder in the He degree. second with murder in the There degree. first was circumstantial evidence Rogers drowned his infant An intentionally daughter. on the included of murder in given lesser the second On he contended it was error to have degree. appeal the lesser included instruction. We said “Where the given indictment murder in the first and the charges degree, undisputed accused, if all evidence shows that the at of mur- guilty guilty der in the then it for the court first is not error to refuse degree, to return a give authorizing instructions verdict of one of the lower of homicide.” degrees Although

425 returning verdict stated that “The warranted the jury proof ....,” was case holding for murder in the first degree give court to an instruc- that “... it is not error for the prejudicial case, is one tion error on lower such degree this there Unlike results to the defendant’s advantage.” Mr. Rogers might was in the nothing suggesting State’s evidence It degree have been of an offense less than first murder. guilty other anything be said there was no “rational basis” than the first Mr. tes- degree Although Rogers murder instruction. defense, tified an he and mounted alibi the evidence was stated us it as a reason for the obiter dictum that was error have on instructed second murder. degree (1925),

In Clark v. S.W. Mr. Clark was accused of murder. He con- felony first was degree victed of that offense and The murder sentenced to death. occurred at the conclusion of a bank in which Mr. Clark’s role robbery was that of driver of the car. The evidence was that Mr. getaway deceased, Clark shot the a businessman whose was down business bank, from street who Mr. Clark trying apprehend and his confederates. Mr. Clark’s defense was that he partici- pated in the robbery without intent Seem- anyone. to shoot ing to concede that he was a participant robbery, bank he underlying felony, argued on that it was error for the appeal Trial Court to refuse to give instruction on second mur- degree us, der. and unlike Obviously, the evidence now before there was instruction, no basis for the lesser included offense and we said so. The case had nothing do with an alibi defense.

In Caton supra, from which language quoted above, an issue was whether the was entitled to accused an instruc tion on as a lesser shoplifting grand offense included in larceny. We held that the of grand did larceny charged not include all the of elements there shoplifting, thus was no error in failure to instruct on There was shoplifting. nothing about an us, alibi defense. In the case now before have no doubt that possession of a controlled substance is a lesser offense included in the sale controlled substance.

In Parker v. all of the evidence showed that the victim of a robbery had been physically accosted and the element of force Mr. present. larceny. fail to error to instruct

Parker contended was when refuse such an instruction “. . . it is not error to said either the defendant is clearly evidence shows that in the evi- nothing there was charge Again, innocent.” greater and there larceny included offense suggest dence to lesser alibi defense. was no 271, State, (1977), Ark. S.W.2d 948

In Barksdale v. 262 555 an error to have refused instruc- Mr. Barksdale contended it was a lesser included offense bur- and breaking entering tion on union over whether student The was glary. dispute apparently at Pine Bluff was occu- at the of Arkansas University building for the break- that there no basis structure. held piable was that the evidence entering and instruction ing contrary. No nothing There was building occupiable. presented. alibi defense was State, (Ark. 111 v. S.W.2d

In Crenshaw 271 609 1980), degree convicted of second bat- Ms. Crenshaw was App. refused Ms. Cren- The Court of to entertain tery. simply Appeals form on contention was entitled a verdict bat- shaw’s that she Trial Court instructed on degree. battery in the third had tery withdrawn the and submitted degree in the third but had not guilty. forms degree battery verdict for second con- ground affirmed on the abstract Appeals Court of evidence either to the instructions or objection tained no of an to the verdict forms. (1980), Mr.

In Beed v. offenses, He including rape. accused of a number of Beed was degree abuse in the first as a an instruction on sexual sought The victim testified she was cer- lesser offense included rape. Mr. had been Beed contended testi- tain there penetration. whether in his sex- had been about he desisted mony confused no intercourse. We found basis during ual attack before or held, to the solely State’s looking whatever for contention evidence, have the instruction that it was not error to refused in the where the evidence showed the abuse first degree sexual and not of the charged defendant guilty Beed alibi The fact that Mr. had tes- a lesser offense. in the error alleged was not mentioned discussion timony instruct on lesser included offense. with failure to respect (1981), In Sargent Mr. was convicted of first murder Sargent degree killing siblings his father. The evidence his who were presented by his was that Mr. accomplices Sargent planned would insurance thinking family get money, presumably truck, if money, his father were killed in his so he shot him four times and while father attempted body burn the was still alive. Mr. Sargent wanted an instruction on the lesser included offense of which have manslaughter would been appropriate upon thar he showing had caused the death “under the influence of extreme emotional disturbance for which there no reason- [was] able excuse.” We held there nowas evidence to find- support any ing of “extreme emotional disturbance.” Alibi was not in ques- tion. Lovelace v.

Mr. Lovelace was aggravated robbery. Mr. Parker testified that Mr. Lovelace held a to him while gun robbing convenience store where Mr. Parker A was hidden employed. camera the robber a photographed holding small revolver. Mr. Lovelace contended on that the Trial appeal Court should have instructed on the lesser included offense of robbery. The evi- dence was clear that the robbery had been conducted at gunpoint. There was no indication whatever in the evidence that the rob- bery was other than with the accomplished gun. use of We held there was no rational basis for the lesser included offense instruc- tion. There was no alibi evidence.

In Smith v. (1982), 277 Ark. 642 S.W.2d 299 Mr. Smith denied any knowledge of or in the complicity aggra- vated with which he robbery was Mr. Smith charged. contended on that appeal the Trial Court erred in to instruct failing on the lesser included offense of An officer who robbery. chased and apprehended Mr. Smith after the testified Mr. Smith robbery was armed. There was no evidence the to We held contrary. there was no rational basis for the giving of the lesser included offense instruction. Again, the was the holding based on State’s evidence rather than on the fact that Mr. Smith denied in the participation offense.

In (1984), Roberts v. Mr. Roberts was with and theft burglary of His property. at the had been pried was on a window which found fingerprint occurred, and he was found in pos- where a had residence theft of the other one pair earrings, of matched of session of one three alibi left at Mr. Roberts presented which was the residence. on lesser included then the sought witnesses appellant’s We noted that “Since by receiving. offense of theft theft, for the request innocent any was that he was position not rational. theft by receiving lesser-included offense of case, was not the trial court Under the facts this conclude offense.” with the lesser obligated charge respect the now opinion While case majority that statement supports us, in the State’s evi- nothing it must be noted that again before Discussing burglary. dence other than suggested anything “According we said opinion Roberts case [Roberts], goods stolen allegedly he received appellant in the Roberts opinion before were stolen.” years they several not, however, testimony. Reading case refer such any does evidence say one cannot there opinion, simply ratio- which jurors the State or Mr. Roberts from I disagree had occurred. While nally by receiving conclude theft with the neces- with the alibi evidence connecting the statement instruction, clear to me it is sity for the lesser included offense facts, that there is limited to its holding State’s no have concluded the basis way jurors could other than had occurred. anything burglary evidence that Mitchell He with murder. admit- felony Mr. Mitchell was charged capital absconding ted the victim with tire tool hitting On He first murder. degree appeal victim’s truck. was convicted of the con- support he contended the evidence was insufficient to on cap- viction had not warranted and evidence held was sufficient to sus- ital murder. We the evidence felony it had been murder conviction and that degree tain the first in nothing There was error murder. felony to instruct capital alibi, at the case is cited say why I am a loss to the case about and in the majority opinion. in in the Roberts we far what we said

While went too view of the fact that the hold- that not created the has problem made in the mistake was reaching. was not far ing there S.W.2d 699 v. Flurry and case It came the same about day. which was decided to the “According appel- based on the Roberts case. reasoning [Roberts], stolen sev- lant he had received the allegedly goods eral before were stolen. The years they appellant’s [Roberts’s] a it made own with So testimony charge. was inconsistent such no sense to confuse the jury.”

We should not have made that connection. The State has beyond burden of each element of a criminal offense proving (1) doubt. In there evi- reasonable a situation where is separable elements, (2) dence which about those there is evidence from conclude, a jury could based on of the or credibility witnesses in their that testimony, conflicts not all of have been elements doubt, (3) beyond proven reasonable failure with respect to one of the elements result in conviction aof lesser offense, included there should be an instruction on the lesser included offense. A of not evidence plea guilty, by of denial defendant, or alibi evidence defendant has noth- ing to do or strength weakness State’s evidence. Thornton, (D.C. 1984), United States v. F.2d 39 Cir. the Court of out Appeals pointed that the appellant’s argument that a lesser included offense instruction should given have been had overlooked the point gave defense no exculpatory basis for and there be must a rational basis for the instruction. Court Appeals then said: time,

At the same recognize even where the defense, defendant presents totally the instruc- exculpatory tion should nonetheless be if the given evidence presented prosecution provides a rational basis for the jury’s finding defendant guilty of a lesser included offense. Sinclair, (D.C. 1971) States 444 F.2d 888 [United Cir. v.] [emphasis in original].

See United Payne, (D.C. also 1986); States 805 F.2d 1062 Cir. Canova, (S.D.N.Y. United States v. 1986). F.Supp. 1055 weAs said in Fike v.

(1974), “. . .the jury has sole or prerogative all accept of a part witness’ testimony whether controverted .” or not. .. The State wants a understandably jury to have the prerogative its believing part witnesses part of evidence accepting its the determining in Obviously, if it alleges. fails to all it prove to the must look first jury or of an accused the guilt innocence guilt beyond the has proving State’s for State the burden proof, a of the State’s part proof, believes jury a reasonable doubt. If the to not enough offense but to a lesser included enough sustain limited choices be jury sustain should original charge, because the just or charge acquittal of conviction on the original alibi defense? offered an denied or or guilt defendant has clearly result in a untruth- a choice would Limiting the such jury for exam- charges, no reason. If the State ful decision for good he was not and the defendant testifies felony murder ple, capital committed, the trial should at the scene of the crime when it was if the a of homicide degree court an instruction on lesser refuse I felony? suggest underlying State no evidence of presents in that included instance instruct the lesser refusal to on of situation yet just would be that is sort preposterous; lead. which the majority opinion evi- in the if State’s today As we have held Jones render a it and thus part dence could believe is such offense, a then there is rational of a included conviction lesser an There is no less a ratio- such offense. instructing basis on is of either the nal if the defense a denial basis for the instruction The in the its occurrence. defendant’s participation State, and than the defense no less entitled to the instruction rather than the untruth- I take it favor truthful verdicts we should will in some cases from surely playing ful ones which result of a legalistic game.

I dissent. respectfully Roaf, JJ., in this dissent. join

Brown and Layton Roaf, Justice, dissenting. majority Andree give it “defies common sense” states that estab- proof offense where defendant’s lesser included and innocent participation lished she was elsewhere words, transaction, where alibi defense was cocaine other sense nor does most defy forth. It neither common defies put — that justice of criminal the state basic of our premise system doubt, of its case. every reasonable element beyond must prove two wit- state’s testimony discrepancy can be said to have drug question nesses to the transaction — unless in this case of doubt at least element injected or untruthful can be that policemen also defies common sense — from error, recruited most often drug or that informants — In this can same. be the society elements of our the seamier other, either case, witnesses both of these one or the or perhaps trans- drug were an of aspect mistaken about fabricated have been should instruction any action. requested including all evidence given weigh and the allowed to in testimony. this conflict credibility the issue of in general, line of cited by majority As to the cases (1986), in partic- Doby v. ular, lesser included if that a they stood proposition basis, I would a rational should not be absent given However, interprets be agreement. majority in complete or an denial as that a who holding presents complete defendant situation, never and can is in an or nothing” alibi defense “all instruction, weakness regardless receive a lesser included in the state’s or in credibility the evidence witnesses interpreta- its that makes this presentation of case. It is “never” in no way tion unsuccessful alibi defense illogical or the elements establishes the state’s witnesses credibility Even so greater concept sacrosanct charged. such a way correcting stare decisis should not stand clear mistake.

I respectfully dissent.

Case Details

Case Name: Brown v. State

Court Name: Supreme Court of Arkansas

Date Published: Jul 17, 1995

Citation: 903 S.W.2d 160

Docket Number: CR 94-1430

Court Abbreviation: Ark.