*1 We find such with an appeal. proceed requests appellant’s defendant, a criminal for error, made an attorney admittedly re Belated See In Appeals the motion. cause to is grant good Cases, curium). Ark. 964 (per Criminal from the found that attorney appointed The trial court also office, was relieved as coun- R. Deborah Sailings, Public Defender’s relieved as Sherwood, to be never Mr. who requested and that sel counsel, counsel. to be continued appellant’s settled, rule we can on the the record has been
Now that it is A and therefore granted. copy motion file a belated appeal, on Professional to the Committee will be forwarded of this opinion Conduct. v. STATE of Arkansas
Cartrell Lewan McCOY
Abed,
Defenders,
Public
Deborah R.
Deputy
by:
Sailings, Deputy
Defender,
Public
for appellant.
Gen.,
Heil,
Mark
Lauren Elizabeth
Ass’t
Pryor, Att’y
by:
Att’y
Gen., for appellee.
D
L.
Cartrell Lewan
CORBIN,
ONALD
Justice.
McCoy
convicted
attempted first-degree
in the Pulaski
Circuit
He
burglary
County
Court.
was sen
tenced to
and five
years’
thirty
years’ imprisonment,
respectively,
$5,000.
ordered to
fine of
pay
trial court
Additionally,
revoked his
for a
conviction of
probation
prior
possession
cocaine with
intent
deliver and sentenced
to a
him
concurrent
term of fifteen years’
to the
imprisonment. Appellant appealed
Arkansas
Court
that the trial court erred in
Appeals, arguing
his motion to instruct
denying
on the crime of
attempted
murder.1 The court of
appeals agreed
*4
reversed. See
v.
McCoy
App.
(2001).
decision,
The State filed a
for review of that
and we
petition
it,
to Ark.
Ct.
granted
R.
When we
pursuant
l-2(e).
Sup.
grant
review
a decision
the court of
we review the
following
appeals,
case as
it had been
filed
this
with
court.
though
See
originally
v.
Appellant Wilson apartment Rodney began his toward Sarah firing gun ex-girlfriend, Battung. was Battung filed a no-merit brief on the The revocation. court of Appellant’s attorney appeals declined to reach the issue because counsel had not the entire initially record for provided rehearing, review. On however, the court of reversed itself and affirmed the trial appeals ruling revoking court’s See 423-A, Appellant’s probation. McCoy App. S.W.3d (supplemental grant reh’g). on Neither seeks review of that opinion party of of the hence, we do not it. decision; review part As a result bullets, in her chest and one in her back. one two hit by incident, with was attempted charged of the Appellant Ann. 5-3-201 and 5-10-102(a)(2) Ark. Code murder under §§ addition, residential In charged 1997). Appellant (Repl. Ann. 5-39-201 (a)(1) in violation of Code (Repl. burglary, § entered or remained on Wilson’s unlawfully for 1997), having premises. evidence, all the of requested At the conclusion Appellant murder, under Ark. Code on second-degree
instruction attempted Ann. on The State 1997). 5-10-103(a)(l) objected (Repl. statute, 5-3-201, that a that the requires attempt ground 5- while murder under section act purposely, The con- that a act State 10-103(a)(l) knowingly. requires it was not knowing tended that possible purposely attempt to instruct on second- The trial court and refused offense. agreed of first- murder. The convicted attempted jury degree murder and burglary. degree conviction in the challenged attempted-murder He that the trial court had erred refusing argued appeals. murder, it is a on because
to instruct
attempted second-degree
murder.
In
lesser-included offense of attempted first-degree
abandoned its trial
and submitted
the State
argument
response,
First,
alternative reasons to affirm the trial court’s
three
ruling.
murder is not a
State
knowing
argued
attempted second-degree
murder,
lesser-included offense of attempted first-degree purposeful
the additional
that the
because second-degree
requires
proof
extreme
crime was committed “under circumstances manifesting
the value of human life.” Seesection 5-10-103(a)(l).
indifference to
Second,
that the trial court’s refusal to
the State argued
give
the instruction
instruction is correct because
lant,
proffered by Appel-
instruction,
2d
did not
state the
a standard AMCI
accurately
Third,
that there was no rational basis for
law.
the State argued
murder. The court
instructing
attempted
of these
and it
was not
any
persuaded by
arguments,
appeals
conviction and remanded for new trial. The
reversed Appellant’s
decision,
for review of this
and we
it for
State
granted
petitioned
this issue.
the law on
clarifying
purpose
*5
issue, we must address a
Before we reach the merits of this
test for
issue
determining
concerning
appropriate
preliminary
State,
In
v.
an
is included
another offense. Goodwin
when
offense
161,
this court observed in a
Ark.
McBride v.
There,
of a
where both offences
belong
the same generic
class,where the commission of the higher may involve the com-
offence,
mission of the lower
and where the indictment for the
higher offence contains all the substantive allegations necessary to
let in
of the
proof
misdemeanor.
This court adhered to this
test for over one
three-part
hundred
See,
State,
years.
e.g.,
220 Ark.
Sharpensteen
919 S.W.2d 407 (1968), 426 In Gaskin more succinct test: and for a its decisions altered opted prior offense, the lesser offense all the elements of “To be an included — offense containing in the greater must be contained greater Id. at in the lesser.” elements not contained certain 210, 213, N.E.2d 238 Ind. Beck v. at 409 (quoting However, S.W.2d in Caton 697 (1958)). from the one-dimensional test this court retreated 537 (1972), test estab and reaffirmed the in Gaskin prior three-prong adopted for lesser-included This remained the test lished in Cameron. Act of 1975. offenses until General Assembly passed Criminal Code. Act created our current comprehensive Reform, is reflected in its tide: “AN ACT to The Act’s purpose Revise, Law of the State of the Substantive Criminal Codify of the Act was codified as Section 105 originally Arkansas[.]” Ann. at section 5-1-110. That 41-105 and is now found Stat. in part: provides pertinent A be convicted of one offense included (b) defendant may which he An offenseis so included another offensewith is charged. if: all It is established of the same or less than by proof the commission of the
the elements
to establish
required
or
charged;
the offense
(2) It consists of an
to commit
attempt
otherwise included within
or to commit an offense
charged
it; or
(3) It differsfrom the offense
charged only
respect
the same
that a less serious
or risk of
injury
injury
person,
mental
or
interest or a lesserkind of culpable
property,
public
state
to establishits commission.
suffices
written in the
connected with
This statute is clearly
disjunctive,
“or,”
term
three distinct
in which an offense may
provides
ways
a lesser-included offense. As if the statute itself
not
as
qualify
to this
clear
the Official Commentary
plainly
enough,
provision
intent in
to deter-
reflects the
ways
legislature’s
establishing multiple
an
included in another:
mine whether
offense is
offense,
two
(b)
included
subsection
serves
By defining
authorize conviction of
functions. Its
is to
primary purpose
information,
offensesnot
named in the indictment or
but
expressly
it also
the exact
(a)(l)’s
delineates
of subsection
scope
prohibition
*7
on
convictions.
in either context
multiple
Application
turns on the
offense,
Code
meaning of included
which the
definesby establish-
three
tests.
ing
alternative
[Emphasis
[Citation omitted.]
added.]
This court
that three
initially
tests were
recognized
separate
State,
established
statute.
in
For
Lowe v.
foregoing
example,
205,
264 Ark.
(1978),
that the
appellant argued
trial court erred in
homicide
instructing
at his
jury
negligent
for
trial
This court held
under
that
the third
manslaughter.
test
now section
41-105(2)(c),
5-1-110(b)(3),
homi
negligent
was a
cide
lesser-included offense of
because the
manslaughter
only
difference between
two
offenses was that
homicide
negligent
a lesser
kind
mental
than
required
state
culpable
manslaughter.
State,
342,
also
See
v.
262 Ark.
557
386
King
S.W.2d
Harmon
(1977);
State,
665,
v.
260 Ark.
Id. at Thompson, no mention of three criteria with little or those applied repeatedly *8 751; Hill, 216, See, law. 344 Ark. 40 S.W.3d the statutory e.g., 413, 161, 397; State, Goodwin, Ark. Ark. S.W.3d v. 337 342 27 Byrd State, 261, v. 329 Ark. 948 759 McElhanon (1999); 992 S.W.2d State, 504, Ark. S.W.2d 146 89 Brown v. 325 929 (1997); S.W.2d 20, State, Ark. S.W.2d 410 Hender- (1989); Tackettv. 298 766 (1996); State, 4, But see Ark. 734 Sullivan (1985). son v. 286 688 S.W.2d State, 323, on the earlier Ark. S.W.2d 469 (1986) 289 711 (relying 541, 407, Gaskin, in 426 S.W.2d that to test established 244 offense, the of the lesser offense constitute an included all elements offense which contains certain must be contained in the greater offense). elements not in the lesser and its successors is in direct The in holding Thompson of section 5-1-110. conflict with language Accordingly, plain extent that conflict with we retreat from those to the they holdings our decision law. We wish to make clear from today statutory is included in another that the determination of when offense whether it meets one of the three tests set out in on depends mind, this we review section With 5-1-110(b) holding merits of the issue in this case.
I. Lesser-includedOffense with first- attempted Although actually charged on second- murder and an instruction degree sought attempted murder, of us to initially our resolution degree appeal requires is a lesser-included determine whether murder second-degree murder. was charged offense of first-degree which under 5-10-102(a)(2), murder attempted first-degree 922 that a murder if a commits provides person first-degree “[w]ith of death of another causes the death
purpose
causing
person,
of another
He
an instruction under section
sought
5-10-
person.”
that a
commits
103(a)(1),
provides
second-degree
murder if
another
causes
death of
under
knowingly
“[h]e
circumstances
extreme indifference to the value
manifesting
of
human life.”
that the
of
He asserts
“extreme indiffer-
requirement
Thus,
ence” is
of
mental state of
culpable
part
perpetrator.
he asserts that
of
murder
this version
differs from
to the
that it
extent
purposeful
lesser
only
requires
state,
mental
as
in section
culpable
provided
5-1-110(b)(3).
State,
hand,
The
other
on the
“under
argues
phrase
circumstances
extreme indifference to the
manifesting
value of
human life” is an additional element of the
crime
murder, not
the mental state. It contends that the
merely part
413,
759,
337 Ark.
is
holding Byrd,
directly
point.
We disagree.
The
“under circumstances
extreme
phrase
manifesting
indifference to the value of human life” is found in numerous
criminal offenses
or death
involving
injury
persons. Regardless
however,
the offense in which it
this court has
appears,
consistently
viewed that
as
of the
of the actor’s mental
phrase
part
state.
proof
See,
State,
62,
Branstetterv.
346
S.W.3d 105. But for the of required age capital- murder statute at issue in Branstettermirrors the version of second- murder at issue here. degree The State’s reliance on this court’s in holding Byrd, There, is the defendant was misplaced. with murder under
charged
first-degree
5-10-102(a)(3),
that the defendant
requires proof
“knowingly caus[es]
death of a
fourteen (14)
of
or
person
at the time
years
age
younger”
425-26,
trial,
of the crime. Id. at
first-degree the accused act know- requires indifference, with extreme ingly as This opposed just knowingly. is as far as the It extends. does not extend holding Byrd to the here, murder at type issue the accused requiring Thus, cause the death of another. purposely does not control Byrd the issue in this case. *10 Here, was with charged attempted first-degree murder, that, with the the death of another purpose causing The the death of his to cause ex-girlfriend. attempted person, murder is commit mental state to first-degree “purposely.” requisite “A 1997) Annotated 5-2-202(1) provides: Arkansas Code (Repl. § a thereof to his conduct or result acts with respect person purposely in conduct of that nature when it is his conscious object engage includes a The mental state or to cause such result.” “purposely” 5-2-203(c) Ark. Code Ann. that of See (Repl. “knowingly.” is defined as follows: 1997). “Knowingly” conduct or the with to his knowingly respect A acts of that when he is aware that his conduct is attendant circumstances circumstances exist. A acts knowingly nature or that such when he is aware that it is with to a result of his conduct respect certain that his conduct will cause such result. practically with the court of that the We 5-2-202(2). Section agree appeals mental state of definition of encompasses culpable “purposely” indifference, extreme delib- requires acting knowingly are with a or awareness that one’s actions erate conduct knowledge result. The combi- certain to about bring prohibited practically extreme indifference that nation of knowledge requires proof than mere but less than the defendant acted with more knowledge, Thus, murder under section 5- intent. purposeful is a lesser-included offense of 10-103(a)(l) as it differs from the under section 5-10-102(a)(2), greater mental to the extent that it lesser kind of only requires culpable it was error for the state. See section 5-l-110(b)(3). Accordingly, trial court to refuse to instruct attempted murder.
II.
Instruction
Jury
Proffered
the State
that we
affirm the con
Alternatively,
urges
may
viction in this case on the
the instruction
ground
proffered
did
state the law. The
admits that the
not
State
accurately
instruction was taken
from AMCI 2d 501. The
directly
proffered
it did
make
to the form of
State also admits that
not
any objection
the instruction in the trial court.
the State asks us
Notwithstanding,
result,
the trial
reached the
for a
to affirm because
right
only
trial court’s
different reason. We
that this court
affirm the
agree
may
result,
if it
even
the trial court
though
ruling
right
See,
reason.
Williamsv.
announced
wrong
e.g.,
Bell v.
925 However, this affirmance rule that a on the issue presupposes ruling made the trial court.
Here, the record
that
reflects
asked the trial court
to instruct the
on the lesser-included offense of
jury
attempted
murder. The
on the
objected
prosecution
ground
act,
criminal
is
while
mur
attempt
purposeful
act,
der is a
and that one cannot
commit a
knowing
purposely
offense. The trial court
and refused to instruct the
knowing
agreed
the
on
lesser-included offense. The issue of the
jury
sufficiency
instruction was not
of the trial court’s
proffered
part
ruling.
Indeed, there is
to indicate that the trial court was even
nothing
concerned with the
of the
remotely
instruction itself.
language
Thus, the affirmance rule is not
This is not a case where
applicable.
the trial court found the instruction insufficient because it misstated
the first
element and the State asked us to affirm the
required
ruling
that the instruction misstated the
ground
second element.
Here,
The affirmance rule could be
in that situation.
there
applied
was no
whatsoever on the
of the
ruling
instruction. With
language
issue,
out a
on this
there is
for us to
ruling
review.
nothing
Moreover, we cannot review this
issue because
particular
the trial court did not make
any findings regarding
sufficiency
of the
instruction. The instruction
proffered
this case is
proffered
instruction,
a model
taken
from AMCI 2d 501. When
directly
this
the second edition of the model
promulgated
instruc
cases,
tions for criminal
it entered an order on their proper usage.
Instructions,
See In Re: ArkansasModel Criminal
264 Ark.
Appx.
This order
curiam).
directed that “the
{per
AMCI instruction
be
shall
used unless the trial
finds that it does not
judge
accurately
state the law. In that event he will state his reasons for
refusing
State,
AMCI instruction.”
191,
Id. See also
v.
336 Ark.
Jones
State,
190,
S.W02d432
Smith v.
(1999);
334 Ark.
Additionally, argument case, we would be in a unfair placing particularly below, Had this been raised defense counsel position. argument would have been alter undoubtedly given opportunity of the instruction to the State’s It language satisfy disagreement. *12 conviction, affirm would be harsh to the that unduly knowing was not an to revise inac given any alleged Appellant opportunity in the we will not reach the curacies instruction. Accordingly, merits of the State’s on this argument point.
III. Rational Basis the that we affirm State the trial Lastly, may argues court’s refusal to instruct on the lesser-included offense of murder because there was no rational attempted second-degree basis for instruction. We set out standard for giving recently on lesser-included offenses: jury instructing
No
been
right has
more
this court than
zealouslyprotected by
anof
accused to have the
instructed on
right
lesser-
State,
419,
included offenses.
Thereafter, sister, Trineka who was one of McCoy, Appellant’s five or six in Wilson’s went out onto the persons present apartment, and discovered there in a chair. Trineka balcony Appellant sitting described as She warned him not to looking pretty upset. instruction, inside the his sister’s go apartment. Disregarding Appel- lant entered the with two apartment began arguing fighting men. He also accused with one of the men. Battung sleeping from the kitchen couch when she saw Battung walking *13 enter the She then sat down on the couch and Appellant apartment. dial to 911. asked her if she was the began Appellant calling police, and she stated that she was. then at her. Appellant began shooting
We view as at least the proof providing slightest evidence that acted with extreme indifference Appellant knowingly to the value of human life. We with the dissent that the disagree that shows acted with the proof unquestionably Appellant purpose to kill did threaten to kill Battung. Although Appellant Battung just before the he also to her thereaf shooting, apologized immediately ter and told her that he had made the threat because he was mad. Moreover, there was evidence that shot at Bat showing Appellant in an to her from not for the tung attempt stop calling police, of her. The demonstrates that purpose killing testimony fired his after told him that she only gun Battung calling evidence, Based on this could have found that police. jury fired at that his conduct was Battung knowing practically death, certain to her cause but indifferent to the being extremely value of human life. it was error for the trial court to Accordingly, refuse to instruct on the lesser-included offense of jury murder. We thus reverse the of attempted second-degree judgment conviction and remand for a new trial. remanded;
Circuit Court reversed and Court Appeals affirmed.
Arnold, Glaze, dissent. J., C.J., T Glaze, 'OM I dissent on Justice, dissenting. respectfully to instruct
basis no rational basis existed on which as murder. To I turn to the to statutory second-degree explain, our law defining history leading
murder.
In enacted Act General Assembly reformed, revised, and criminal codified Arkansas’s substantive law. 549-560, of Act in the Section 1502 defined murder first pp. as follows: degree
A(1) commits murder in the first if: degree alone or with one
(a) or more other he acting persons, commits or to commit a and in the course of attempts felony, and in the furtherance of the inor the immediate felony, therefrom, he flight or causes the death of accomplice any under circumstances extreme indifference manifesting life, value of human or
(b) with the and deliberated premeditated purpose the death of another the death causing person, causes any person. 600-601,
Section 1503 of Act defined pp.
murder as follows:
(1) A murder in person commits the second if: degree
(a) with the of the death of another purpose causing he causes the death of person, any or person; (b) he causes the knowingly death of another person under circumstances extreme indifference manifesting life; value of human or
(c) with the of serious purpose causing physical injury another he causes the death of person, any person. 1987, the In the First Session of General Assem- Extraordinary 52, which the above enacted Act revised definitions of first- bly murder a new to read as subsection follows: adding (c) degree under
(c) circumstances cruel or malicious manifesting life, indifference to the value of human he causes knowingly the death of a fourteen of or person years age younger. This new subsection was the General Assembly’s response, dissatisfaction with this court’s decision in reflecting split Midgett where the court found (1987), no evidence of and deliberation to premeditation first-degree prove murder where a child’s death was caused from a at the hands beating father; of his drunken this court reduced the father’s Midgett conviction to murder.
And the General in 1989 enacted Act finally, Assembly revised the homicide statutes as follows: basically (1) It moved the murder “with the first-degree provision, and deliberated of premeditated the death of purpose causing another he causes the person, death of to be included any person,” as an element of the offense of murder. SeeArk. Code Ann. capital 5-10-101(a)(4). § offense, It
(2) revised murder removing “with a of the death provision, purpose of another causing person, he causes the death of another person,” placing provision in the statute defining murder. See Ark. Code Ann. first-degree 5-10-102(a)(2). And
(3) as out in Act pointed (2), 856 reduced the second- One, statute to two degree elements mur- only: commits der in the second if he degree causes death of knowingly another under circumstances extreme manifesting indiffer- life; or, two, ence to the value of human purpose serious causing to another he physical injury causes the person, death any person. After made aas result of Acts 52 and noting changes 856 set above, out the two are to the following changes especially pertinent statute, case before us: section 5-10- element, now embodies the 102(a), “with a purpose the death of another causing causes death of another person, *15 statute, 5-10- the murder section second-degree person,” no includes that offense element. 103(a), longer These in elements are foregoing changes particularly significant Here, at Mr. trial. his in of the evidence offered McCoy’s light victim, that, told her Sarah testified by McCoy Battung, telephone, her. went to that he was to kill Sarah’s McCoy going subsequently her looked where some of friends were present. McCoy apartment, friends, and like he was to Sarah’s Sarah started to dial trying fight asked, the “What are Are 911 on McCoy you you phone. doing? said, the “Yes.” then a Sarah calling McCoy pointed gun police?” succession, in her at Sarah and started directly once in her side and another time in her back. She testified that shooting rapid hitting there was no one between her and him. evidence,
In the foregoing McCoy attempted unquestionably to cause death as in section Sarah’s 5-10- purposely provided as amended Act 856 of 1989.1 Prior to 102(c)(2), by 5-10-103, murder statute and its “purposely” element, us; however, would to the offense before have applied since true. is no McCoy longer argues murder statute under still because section 5-10-103(a)(l), applies, he to cause death circumstances Sarah’s under knowingly attempted However, extreme to value of human life. manifesting indifference to read section in this there is 5-10-103(a)(l) no way suggests difference in between used language words, In other 5-10-102(a)(2) -103(a). General provisions did a act when it revised those two statutes so Assembly meaningless was removed from section to 5-10-103(a) “purposely” provision I cannot 5-10-102(a)(2). agree.
This court has
“circumstances mani
distinguished
phrase
extreme indifference to the value of human life” to mean
festing
that the attendant circumstances themselves must be such as to
demonstrate the
mental state of the
accused. Martin
culpable
see also
Tigue
147,
931 her, her, it at and unloading and at firing his directly gun pointing her body. in vital times parts her two hitting to demon had which the State in a situation case is not This of extreme an additional showing mental state by McCoy’s strate Here, his attendant circumstances. life human by to indifference kill intended to his Sarah evident by telling was object conscious to act on objective. her, he immediately proceeded actions. For his sole obvious made state was mental McCoy’s statute, the the second-degree acts to fall within McCoy’s circumstances that the attendant shown must have evidence manifested fife. For of human example, to the value extreme indifference a defendant when circumstances such attendant has found 992; crowd, v. see into a his fires gun Johnson son who beat his frail a father repeatedly when (1980); S.W.2d S.W.3d 105 Ark. result, v. see Branstetter as a died of his accom when, any knowledge although denying or victim, the defendant accomplices joined to kill plans plices’ death, seeHutts the victim’s resulted in robbery case, do not finding the facts simply support In present — for been different Had the facts circumstances. such attendant where the the room fired into had randomly McCoy example, — with the I could agree then perhaps taking place party evidence to giving that there was the slightest support majority However, and fired directly aimed instruction. McCoy of the lesser kill her. This is Sarah, he was to after he said going at shortly state, of an awareness not evidence of a mental evidence purposeful circumstances. of attendant it is conclusion, states that correctly
In the majority opinion on a lesser-included refuse to an instruction error to give reversible evidence. is slightest when the instruction supported by offense However, 259 (2002). Atkinson an included refuse to offer a instruction trial court may a verdict no rational basis for acquitting when there is offense him of the convicting of the defendant charged above, because McCoy alluded offense. Id. As already included Sarah, failed to to kill but present in his acted attempt purposely that resulted circumstances there were attendant evidence showing shot, conviction. affirm her be I would McCoy’s causing Arnold, C.J., joins this dissent.