Spann v. State

David SPANN v. STATE of Arkansas

CR 96-733                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 12, 1997


1.   Criminal law -- sentencing controlled by statute since enactment of
     criminal code. -- Since the enactment of the criminal code,
     sentencing is controlled by statute.    

2.   Criminal law -- sentencing -- parole and transfer eligibility --
     appellant's argument on asserted conflict between holding in case and
     subsequent act was without merit. -- Because of the deference the
     supreme court has given to the General Assembly in the matter
     of sentencing, and because appellant made no constitutional
     argument about the separation of powers but, instead, centered
     his claim only on the asserted conflict between Andrews v.
     State, 251 Ark. 279, 472 S.W.2d 86 (1971), which held it
     improper to inform a jury about transfer and parole
     eligibility, a matter handled entirely by the executive
     department of government, and Ark. Code Ann.  16-97-103(1)
     (Repl. 1995), which permitted the same, the supreme court held
     that appellant's argument that Ark. Code Ann.  16-97-103(1)
     (Supp. 1995) must bow to the mixed rule of evidence and
     procedure announced in the Andrews decision was without merit.

3.   Criminal law -- instruction on lesser included offense -- rational-basis
     standard. -- It is reversible error to refuse to give an
     instruction on a lesser included offense when the instruction
     is supported by even the slightest evidence; a trial court's
     decision to exclude an instruction on a lesser included
     offense will be affirmed only if there is no rational basis
     for giving the instruction.

4.   Criminal law -- instruction on manslaughter -- not error to refuse without
     evidence of extreme emotional disturbance. -- It is not error to
     refuse to give an instruction on manslaughter where there is
     no evidence of extreme emotional disturbance.

5.   Criminal law -- homicide -- reduction of grade from murder to manslaughter.
     -- The passion that will reduce a homicide from murder to
     manslaughter may consist of anger or sudden resentment, or of
     fear or terror; but the passion springing from any of these
     causes will not alone reduce the grade of the homicide; there
     must also be a provocation that induced the passion and that
     the law deems adequate to make the passion irresistible; an
     assault with violence upon another who acts under the
     influence thereof may be sufficient to arouse such passion.

6.   Criminal law -- instruction on manslaughter -- anger alone is insufficient
     to support element of extreme emotional disturbance -- trial court
     correctly refused instruction. -- Anger alone is not enough to
     support the element of extreme emotional disturbance; where
     there was proof of intense anger on appellant's part after the
     victim, who purportedly had been drinking, accused appellant's
     son of theft and demanded retribution from appellant, but no
     proof of provocation in the form of physical fighting, a
     threat, or a brandished weapon; and where it was undisputed
     that appellant had placed a pocketknife in the victim's hand
     after the shooting, the trial court correctly refused to
     instruct on manslaughter.


     Appeal from Perry Circuit Court; Chris Piazza, Judge;
affirmed.
     William R. Simpson, Jr., Public Defender, by:  Jeffrey A.
Weber, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant David Spann was convicted of first-degree murder and
sentenced to life imprisonment.  He raises two points on appeal:
(1) the trial court erred by allowing the prosecutor to inform the
jury about parole eligibility in the penalty phase; and (2) the
trial court erred in refusing to give an instruction on voluntary
manslaughter.  Both points are meritless, and we affirm.
     The facts of this case were developed at trial.  On February
21, 1995, Spann shot and killed Carl Ahrens in Spann's house in
Perry County.  According to Barbara Wilcutt, who lived with Spann
at the time of the shooting, she heard Spann arguing with another
man about whether one of Spann's sons, Jacob Spann, had stolen
equipment from the man.  She testified that she went downstairs and
watched the argument.  Spann, she stated, was mad and turned white. 
There was no physical fighting, and the man did not threaten Spann. 
Spann, though, got a shotgun from the gun rack and shot the man. 
After shooting him, Spann placed a pocketknife in the victim's
hand.  Sarah Lucker, Wilcutt's 12-year-old daughter, confirmed the
fact that Ahrens had nothing in his hands when Spann shot him.
     Following the killing, Chief Deputy Ed Johnson of the Perry
County Sheriff's Department responded to a call at 6:20 p.m. at the
Spann residence.  He collected the .410 single shot shotgun and
found the opened pocketknife in the victim's hand.  The victim also
had a larger knife attached to his belt.  According to a witness
from the State Crime Lab, Ann Hoff, Ahrens was in close proximity
to the shotgun when he was killed.  Perry County Coroner Hank
Bergen testified that the gunshot wound was to Ahrens's head and
neck.  Dr. William Sturner, chief medical examiner for the State,
testified that both marijuana and alcohol were found in Ahrens's
system.  
     Spann did not testify at his trial, but a second son, David
Spann, Jr., testified about seeing Ahrens in an agitated condition
and stated that Ahrens was drunk.  David Spann, Jr., stated that he
called the sheriff's department at his father's direction after the
shooting.  In closing argument, Spann's counsel contended before
the jury that Spann lacked the purpose to kill Ahrens and that the
murder was the result of a passionate argument.  The jury returned
a verdict of guilty of first-degree murder and after the sentencing
phase, sentenced Spann to life in prison.
     Spann first complains that the trial court erred in permitting
a jury instruction relating to parole and transfer when either a
sentence of life imprisonment or a term of years is meted out by
the jury.  Prior to trial, Spann moved the trial court to exclude
jury instructions, evidence, and argument relating to parole and
transfer eligibility.  The motion was denied at an omnibus hearing. 
During the sentencing phase, the trial court instructed the jury on
meritorious good time and transfer to community supervision and
then answered "No" to the jury's question about the possibility of
parole after a life sentence.
     The crux of Spann's argument on appeal is that this court
announced a rule of evidence in 1971 when we held that it was
improper for the trial court to inform the jury about transfer and
parole eligibility.  See Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971).  Spann argues that the subsequent Act of the General
Assembly permitting the same (Ark. Code Ann.  16-97-103(1) (Supp.
1995)) must bow to the mixed rule of evidence and procedure
announced in Andrews v. State, supra.  We disagree.
     We have recently answered this precise question against
Spann's position in the case of Travis v. State, 328 Ark. ___, ___
S.W.2d ___ (May 5, 1997).  In Travis, we concluded:
          Since the enactment of the criminal code, we have
     said that sentencing is controlled by statute.  See Cody
     v. State, 326 Ark. 85, 929 S.W.2d 159 (1996); Easley v.
     State, 274 Ark. 215, 623 S.W.2d 189 (1981). Ark. Code
     Ann.  16-97-103(1) was enacted as part of Act 535 of
     1993, where the General Assembly made changes in
     procedures governing jury trials by providing for
     separate consideration of guilt and sentencing.  Among
     other things, Act 535 defines what is "evidence relevant
     to sentencing," part of which includes parole
     eligibility.
          Simply put, Travis fails to cite to any express rule
     of this court with which Ark. Code Ann.  16-97-103(1)
     conflicts.  Our holdings to which Travis cites were
     handed down prior to the enactment of Act 535 of 1993. 
     Because of the deference this court has given to the
     General Assembly in matters pertaining to sentencing, see
     Cody, supra, and because Travis fails to cite an express
     rule of this court which conflicts with Ark. Code Ann. 
     16-97-103(1), we affirm as to this point.
Travis v. State, 328 Ark. at ___, ___ S.W.2d at ___.
     Spann does quote the following language from our opinion in
Andrews v. State, supra:
     The subject matter [parole eligibility] is entirely alien
     to a judicial proceeding since it is handled entirely by
     another department of government, the executive.
Andrews v. State, 251 Ark. at 289, 472 S.W.2d  at 92.  Yet, he makes
no constitutional argument about separation of powers but, rather,
centers his claim only on the asserted conflict between  16-97-
103(1) and the Andrews decision.  This court resolved the latter
issue in Travis v. State, supra.  The point is without merit.
     For his second point, Spann claims that the heated argument
that ensued in the minutes prior to the shooting justified the
proffered voluntary manslaughter instruction.  The State counters
that there was no rational basis for the instruction.
     It is reversible error to refuse to give an instruction on a
lesser included offense when the instruction is supported by even
the slightest evidence.  Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992);
Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980).  We will
affirm a trial court's decision to exclude an instruction on a
lesser included offense only if there is no rational basis for
giving the instruction.  Brown v. State, supra; Sanders v. State,
305 Ark. 112, 805 S.W.2d 953 (1991).  Henson v. State, 296 Ark.
472, 757 S.W.2d 560 (1988).
     The elements of manslaughter set out in Spann's proffered
instruction are that the defendant caused the death of another
while "under the influence of extreme emotional disturbance of
which there was a reasonable excuse."  See also Ark. Code Ann.  5-
10-104(a)(1) (Repl. 1993).  We have held that it is not error to
refuse to give an instruction on manslaughter where there is no
evidence of extreme emotional disturbance.  Hill v. State, 325 Ark.
419, 931 S.W.2d 64 (1996); see also Cooper v. State, 324 Ark. 135,
919 S.W.2d 205 (1996).  For example, in Allen v. State, 310 Ark.
384, 838 S.W.2d 346 (1992), we held that there was no rational
basis for giving the manslaughter instruction where the appellant
chased down the victim after the victim hit the car of the
appellant's friend.
     Similarly, in Frazier v. State, 309 Ark. 228, 828 S.W.2d 838
(1992), this court held that there was no rational basis for the
manslaughter instruction where the proof was that the victim had
teased the appellant for urinating on himself.  The appellant had
said that he was tired of the victim's "messing" with him and that
he was going to kill him.  The appellant later shot the victim and
continued to shoot at the victim as he ran away.  Again, while
there was proof of a lost temper, there was no proof of emotional
disturbance.
     On the other hand, in Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), we reversed the appellant's conviction due to
the failure of the trial court to give the requested manslaughter
instruction.  In Rainey, the appellant shot his lover during a
heated argument in which the victim threatened to divulge their
relationship to the appellant's wife and family.  The appellant
testified that he was hysterical and that he shot the victim out of
anger after she reached for his gun and caused it to discharge.  We
concluded that this evidence was enough to warrant the manslaughter
instruction.  We stated:
          The Frazier case is readily distinguishable from
     this one.  Here, evidence indicated that Rainey had been
     threatened with a gun before the killing occurred which,
     combined with the ongoing argument and the threat to ruin
     his family relationship, could well have been considered
     by the jury to have caused him to suffer extreme
     emotional distress, especially when viewed from his
     perspective as the statute requires.  There is a
     substantial difference between the emotional effect of
     being teased and being threatened with a gun.
Rainey v. State, 310 Ark. 423, 837 S.W.2d 455.  We then quoted the
following from an earlier decision:
     The passion that will reduce a homicide from murder to
     manslaughter may consist of anger or sudden resentment,
     or of fear or terror; but the passion springing from any
     of these causes will not alone reduce the grade of the
     homicide.  There must also be a provocation which induced
     the passion, and which the law deems adequate to make the
     passion irresistible.  An assault with violence upon
     another who acts under the influence thereof may be
     sufficient to arouse such passion.
Rainey v. State, 310 Ark. at 423, 837 S.W.2d  at 455, quoting
Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960).
     In the present case, there was proof of intense anger on the
part of Spann after the victim, who purportedly had been drinking,
accused Spann's son of theft and demanded retribution from Spann. 
But there was no proof of provocation in the form of physical
fighting, a threat, or a brandished weapon.  Indeed, Spann's
counsel at oral argument did not dispute the fact that Spann placed
the pocketknife in Ahrens's hand after the shooting.  Anger alone
is not enough to support the element of extreme emotional
disturbance.  The trial court correctly refused to instruct on
manslaughter under these facts.
     The record has been reviewed for reversible error in
accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found.
     Affirmed.