Fred Minor, Jr. v. State of Arkansas

ar02-672

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

FRED MINOR JR.,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-672

MARCH 19, 2003

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT,

NO. CR2000-204-1,

HON. BERLIN C. JONES, JUDGE

REVERSED AND REMANDED

Appellant Fred Minor, Jr., was convicted by a Jefferson County jury of murder in the first degree of Jeffery Morehead. Appellant was sentenced to fifteen years in prison. He does not challenge the sufficiency of the evidence. He argues that two instructions should have been given to the jury, self defense and manslaughter. We disagree with appellant's contention that the self defense jury instruction was appropriate, but we agree that the manslaughter jury instruction was erroneously rejected by the trial judge. Thus, we reverse and remand for a new trial.

Before explaining the reasoning behind our decision, we feel obligated to first note that we agree with the State that Minor's abstract does not comply with Arkansas Supreme Court Rule 4-2. For example, the discussion between the court and counsel in which jury instructions were discussed and the trial court's rulings rejecting the instructions were notabstracted; this is a violation of Supreme Court Rule 4-2(a)(5).

Furthermore, we believe that the argument portion of Minor's brief fails to meet Supreme Court Rule 4-2(a)(7), which requires that "reference in the argument portion of the parties' briefs to material found in the abstract and addendum shall be followed by a reference to the page number of the abstract or addendum at which such material may be found." For example, in the argument section of his brief, Minor refers to the pages in the trial transcript instead of referring to pages in the abstract as is required by Supreme Court Rule 4-2(a)(7). Additionally, on page 24 of his argument, Minor states that "[t]here was ample testimony from defense witnesses at trial that appellant was persistent in attempting to visit with his child by Felicia Willis. (T. 252, 253, 254)." The problem with this, other than it cites to the transcript rather than to the abstract, is that the only citation to any of these transcript pages in the abstract is to page 252, which states that "Jeffrey had made threats against the baby. (T. 252)." There is no evidence whatsoever in this sentence that supports Minor's claim that he was persistent in attempting to visit with his child.

Yet another example of Minor's non-compliance is found on page 22 of his argument. On that page Minor states, "The decedent made many threats to appellant by calling his home, going to appellant's place of employment, and confronting him whenever possible. Testimony would show that appellant was afraid of decedent. (T. 222)." Again, while Minor cites to the transcript rather than the abstract, the more serious problem is that there is no reference to page 222 of the transcript in the abstract. Nonetheless, we find that there is sufficient evidence in the abstract and the argument to decide this case.

The evidence is essentially undisputed. The deceased, Jeffrey Morehead, had three children with Felicia Willis. Morehead and Willis had lived together for ten years but were seeing other people when Willis became pregnant with appellant's child. Morehead moved out. Willis testified that Morehead continued to be very angry that she had become pregnant with appellant's child and had beat her over her relationship with him and the pending pregnancy in an attempt to cause a miscarriage. Willis testified that she attempted to keep Morehead and appellant apart because she feared that Morehead would hurt appellant. Willis said she had heard threats made by Morehead against appellant more than ten times and that Morehead went to appellant's place of employment more than once looking for appellant. Willis also said that she knew Morehead to have a knife, which he threatened her with on more than one occasion.

On February 21, 2000, Willis was home with a girl friend and invited appellant over to see his 1 ½ month old son. Morehead subsequently arrived at the residence, banged on the door, and challenged appellant to come outside. Willis said that Morehead did not want appellant to see the baby. Morehead then broke out the window of appellant's car with a brick and left in his vehicle. Willis told her friend to keep appellant from going outside, but appellant left the house anyway, got in his car, drove off in search of Morehead, and found Morehead at a paint store.

Once at the paint store, appellant broke out the window of Morehead's vehicle with a brick. Morehead came out of the store, and appellant said that Morehead "came at me, he was digging in his pocket" yelling, "You little mother f***er, I'll kill you. I'm going to killyou." Appellant testified that he was so scared he did not know what to do, he ran at first, but he pulled out his gun, and he started shooting at Morehead. Morehead died inside the paint shop.

Appellant explained at trial that he was scared for his life because Morehead had threatened him numerous times in the past, had come to his place of employment, had made threatening telephone calls to him where he lived, had vandalized his car prior to throwing the brick, and had shown him a gun at least twice before. Appellant said that he purchased a gun for protection after the second time that Morehead had pulled a gun on him.

Appellant's counsel proffered jury instructions on self defense (based upon A.M.I. Crim. 704), and manslaughter (based upon A.M.I. Crim. 1004), which were rejected. Appellant was convicted of first-degree murder, and this appeal followed.

Self Defense

A trial court's ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. See Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). There must be a rational basis in the evidence to warrant the giving of an instruction. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). A party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense; however, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support thegiving of the instruction. Id. Appellant's proffered jury instruction on self defense was based upon A.M.I. Crim. 704 and recited that appellant bore the burden to prove that he was justified in his actions because he reasonably believed that unlawful physical force was about to be inflicted upon him.

The law in Arkansas provides that a person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. See Ark. Code Ann. § 5-2-607(b)(1) (Repl.1997). Additionally, this defense is not applicable when one arms himself and goes to a place in anticipation that another will attack him. See Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002); Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985).

In Girtman, appellant Girtman was provoked into a fight by the deceased, Jasper, who was intoxicated. Bystanders broke up the fight, but Girtman took a comment by Jasper to be a death threat. Girtman went home, retrieved a gun, returned to the same location for another reason, and was cut off by Jasper. Girtman said Jasper "went for" his pocket, and Girtman shot him in the face and back. The supreme court affirmed Girtman's conviction and explained:

We have held that a condition precedent to a plea of self-defense is an assault upon the defendant "of such a character that it is with murderous intent, or places the defendant in fear of his life, or great bodily harm. A mere assault is not sufficient to justify the plea of self-defense." Blaylock v. State, 236 Ark. 924, 370 S.W.2d 615 (1963).

Nor have we found a plea of self-defense justified where the evidence showed the defendant armed himself and went to a bar in anticipation that the decedent would be there and would attack him; or that the defendant provoked an attack upon himself by the decedent with the intention of killing the decedent. Burton v. State,254 Ark. 673, 495 S.W.2d 841 (1973). The jury in this case would have been justified in finding that Girtman took the gun and left his home with the intention of killing Jasper.

Even if Jasper were the original aggressor, once he withdrew from the encounter and the danger to Girtman was no longer "immediate, urgent and pressing," Girtman was not justified in pursuing him to continue the fight. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).

Girtman v. State, 285 Ark. at 16, 684 S.W.2d at 807-808.

The following testimony is presented because it is relevant only to the self-defense instruction that we hold was properly refused. The appellate court can go to the record to affirm. See, e.g., McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). The owner of the paint store, Mr. DeMoss, testified that Morehead came to his store that day. Shortly thereafter, DeMoss heard glass break outside and then saw appellant being chased out the door by Morehead. DeMoss followed. When he caught up with the men outside and around the corner of the store, appellant was raising up a gun. Appellant then fired; DeMoss saw Morehead running away from appellant at that time. As DeMoss and Morehead were running back into the store, appellant fired the gun again. They ran further, and Morehead "hunkered down" behind DeMoss, who had crouched down. Appellant came within three or four feet and shot over DeMoss and into Morehead three times. Morehead slumped to the ground. DeMoss sustained gunpowder burns to his ear and forehead. Minor drove away but was apprehended minutes later. The medical examiner stated that the cause of death was two shots from a .38 caliber weapon, one in the upper back and one in the head. The medical examiner stated that either shot was a fatal wound.

We hold that the trial judge did not abuse his discretion in rejecting the self defensejury instruction. Appellant's testimony was that the victim had been harassing him, had broken the window in his car, and left the scene. Appellant, who was armed with a gun, went in pursuit of Morehead, found him at the store, broke out the window of Morehead's vehicle, and provoked a response. Granted, appellant claimed that the victim reached for his pocket and threatened to kill him. However, the shots that were fired were in a pursuit of the victim, chasing him down and and continuing to shoot at close range inside the paint store. The law does not support a claim of self defense in such circumstances, and we hold the trial judge did not abuse his discretion.

Manslaughter

No right has been more zealously protected by the supreme court than the right of an accused to have the jury instructed on lesser-included offenses. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). Refusal to give an instruction on a lesser-included offense is reversible error if the instruction is supported by even the slightest evidence. Harshaw v. State, 344 Ark. 129, 132, 39 S.W.3d 753, 755 (2001). We will affirm the trial court's decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). See also Ark. Code Ann. § 5-1-110(c) (Supp. 1999).

The model jury instruction proffered in this case recites that one is guilty of manslaughter if the defendant causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotionaldisturbance for which there is reasonable excuse. A.M.I. Crim. 1004. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant's situation under the circumstances as he believes them to be. Id.; see also Ark. Code Ann. § 5-10-104(a)(1) (Repl. 1997).

[P]assion springing from anger, resentment, fear, or terror will not alone reduce a homicide from murder to manslaughter; there must be a provocation inducing the passion such as physical fighting, a threat, or a brandished weapon which makes the passion irresistible.

Spann v. State, 328 Ark. 509, 514-15, 944 S.W.2d 537, 540 (1997), quoting Rainey v. State, 310 Ark. at 423, 837 S.W.2d at 455; Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960).

Examples illustrate the principle. In Spann, there was justifiable anger but not to the extent to warrant a manslaughter instruction. The victim 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. In Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992), 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), there was no rational basis for the manslaughter instruction where the proof was that the victim had teased the appellant for urinating on himself. Frazier said that he was tired of the victim's "messing" with him, so Frazier shot the victim and continued to shoot at the victim as he ran away, proving a lost temper but not an emotional disturbance under the law.

On the other hand, in Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), the manslaughter instruction was warranted. Rainey shot his lover during a heated argument inwhich the victim threatened to divulge their relationship to Rainey's wife and family. Rainey 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. The supreme court distinguished Rainey's situation from that in Frazier by saying:

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.

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 appeal, we must view the reasonableness of appellant's excuse from the viewpoint of a person in appellant's situation under the circumstances as appellant believed them to be. Ark. Code Ann. § 5-10-104(a)(1). Appellant took the stand and alleged that Morehead had previously threatened him numerous times, twice with a gun, that Morehead that day reached into his pocket, and ran after him while cursing and threatening to kill him. There was "the slightest evidence" to support the giving of a manslaughter instruction, and we must protect appellant's right to have the jury instructed on this lesser-included offense. See McCoy v. State, supra.

Reversed and remanded.

Robbins and Griffen, JJ., agree.