Michael Eugene Bradshaw v. State of Arkansas

Annotate this Case
ar04-510

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHAEL EUGENE BRADSHAW,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-510

DECEMBER 15, 2004

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

(NO. CR2003-152IV),

HON. EDWARD T. SMITHERMAN, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Michael Bradshaw was convicted by a jury of criminal attempt to commit first-degree murder and possession of a firearm by certain persons, each in connection with the shooting of Bradshaw's friend Chance Worley. The jury found that Bradshaw used a firearm in connection with the offense of attempted murder, and he was sentenced as an habitual offender to a total of eighty years in prison. On appeal, Bradshaw contends that, because sufficient evidence was presented to allow the jury to find that Bradshaw was under extreme emotional distress at the time the act was committed, the trial court erred in refusing to instruct the jury that it could consider criminal attempt to commit manslaughter as a lesser-included offense of criminal attempt to commit first-degree murder. We do not agree with Bradshaw's argument; thus, we affirm.

At trial, Chance Worley testified that he and Bradshaw had started school together and were friends, but that he had not seen Bradshaw much since high school. Worley said that Bradshaw started coming by a few months before the shooting incident and that Worley would loan him money and vehicles. According to Worley, Bradshaw would attend parties at Worley's house. Worley also said that he had, in the past, seen Bradshaw armed with a gun.

Worley stated that, on March 25, 2003, Bradshaw attended a party at Worley's house. The next day, Worley discovered that two of his cars, a Porsche and a Ford Explorer, were missing. Worley testified that he believed that Bradshaw took the vehicles without permission.

Worley said that he went to work and, around lunchtime, went to look for his vehicles. He drove to Tom Brock's house, where he had dropped Bradshaw off on other occasions. Worley stated that he saw Brock, Bradshaw, and the vehicles at Brock's house; and that he got out of his truck, walked toward the vehicles, and saw Bradshaw pull a gun out of his overalls as he walked past. Worley testified that, at that point, Bradshaw shot him. Worley also said that his spinal cord is severed and that he has been told that he will not walk again.

On cross examination, Worley admitted that he owned a shotgun and a pistol, which he carried with him often. Worley also testified that Bradshaw knew about these weapons.

Bradshaw fled the scene after the shooting. Deputy Sheriff John Greathouse, Detective Sarah Love, and Investigator Ron Martineau of the Garland County Sheriff's Department each testified that when Bradshaw was apprehended at a nearby cabin following the shooting, he was emotional and crying. Deputy Greathouse and Detective Love said that Bradshaw was crying, saying he was sorry, and that "this shouldn't have happened." Investigator Martineau also testified that Bradshaw appeared to be under the influence of some substance later that day at the sheriff's office. Specifically, Martineau said that Bradshaw was "emotional, alternately crying" and that Martineau was concerned that Bradshaw was under the influence of some sort of substance, as he had mood swings where he would start to cry and then stop. Martineau also stated that he investigated the scene of the shooting and that no weapons were found there.

Garland County Sheriff's Detective Ray Shoptaw then testified that he gave Investigator Martineau a note that was addressed to Shoptaw from Bradshaw. The note stated in part that "I am wanting to talk to you ... [because] there [are] some [really] sick minded people out there doing very bad things to girls and women ... they started following me all the time and messing with my head ...."

Debra Brock, Bradshaw's mother, testified that Bradshaw had lived with her for almost his entire life until several months before the shooting. She said that he had recently been staying at Chance Worley's house; that Bradshaw's attitude and state of mind started to change when he broke up with his girlfriend, the mother of his two children; and that he then "got bad and on drugs." According to Debra Brock, Bradshaw also changed after the death of Chris Brock, a close friend of Bradshaw's who apparently committed suicide. Debra Brock said that after Chris Brock's death, Bradshaw was scared all the time, got on drugs, and was "full of fear and always looking over his shoulder." She testified that when Bradshaw started using drugs, he started carrying a gun because he was paranoid and thought people were after him. According to her testimony, when she talked to Bradshaw a couple of days after the shooting, he was crying, distraught, and uncertain as to who he had shot and why.

Both Debra Brock and Melvin Brock, Bradshaw's stepfather, said that a few days before the shooting, they saw Chance Worley placing a gun into a truck being driven by Bradshaw. Melvin Brock also said that during the past couple of years, he had seen drastic changes in Bradshaw's demeanor.

Chuck Bradshaw, Michael Bradshaw's uncle, testified that Michael's demeanor andstate of mind were deteriorating during the year prior to the shooting. According to his testimony, Chuck Bradshaw picked Michael Bradshaw up on the morning of the shooting and took him to Tom Brock's house to work on a car, a Porsche that they had towed over to Brock's property. Chuck Bradshaw said that Michael was "kinda wigging out" that morning and that he engaged in behavior that "wasn't normal."

Tom Brock, father of Chris Brock, also testified on Michael Bradshaw's behalf, stating that Bradshaw had been more cautious since Chris's death and that Bradshaw said that he was afraid of people and that people were after him. Brock said that Bradshaw was at Brock's residence on the morning of the shooting. According to Brock's testimony, Bradshaw went inside Brock's camper and fired a shot, and then came out to say that it was an accident. Brock said that, at that point, he was outside talking to Chance Worley. Brock also testified that as he, Worley, and Bradshaw started walking towards a truck, Worley asked a question about some plastic skulls left over from Halloween. Thereafter, according to Brock, Bradshaw shot Worley and said something to the effect of "Well, wasn't that what I was supposed to do?" Brock stated that Worley and Bradshaw were not arguing or fighting.

On cross examination, Tom Brock admitted that he told Investigator Martineau that Bradshaw appeared to be "high" and had a gun in his pocket on the day of the shooting. He also said that he did not hear Worley say anything to provoke Bradshaw.

Michael Bradshaw then testified in his own defense, stating that after Chris Brock's death, he began to believe that nothing was fair. Bradshaw said that he did not think that Brock's death was a suicide; and that he thought that the people who killed Brock had discovered that Bradshaw thought they had done it, and they were out to get him. Bradshaw also said that he was afraid that people were trying to get to his sons so that he would not bring up a pornography ring that he thought was going on. According to his testimony, Bradshaw became scared of the people he thought were involved in the pornography ring and thought they were following him so they could kill him. He stated that he was afraid of these people, so he started carrying a gun.

Bradshaw said that the night before the shooting, he believed Chance Worley was involved in the pornography ring. He also said that he was staying with Worley at that time and was not allowed to leave Worley's house because people were cooking methamphetamine inside. He stated that he thought they were going to kill him or that they might call the police, and that he would probably get shot.

Bradshaw testified that on one occasion, he had run out of gas while driving one of Worley's cars and that Worley appeared on the scene with a shotgun. According to Bradshaw, it was not unusual for Worley to carry a shotgun, and there was always a shotgun at Worley's house.

During his testimony, Bradshaw admitted that he had a bad methamphetamine problem. He said that he had spent approximately eighty days in jail at some point prior to the shooting, and had not had access to drugs during that time. He also said that his feelings about people trying to get him "weren't so bad" when he was in jail, but when he got out, it was the "same thing," even before he started using drugs again.

According to Bradshaw, on the day of the shooting, he helped his Uncle Chuck tow a Porsche over to Tom Brock's house. He said that he thought people were trying to sneak up on him while he worked on the Porsche, so he decided to quit and read the Bible to calm himself down. When Tom Brock woke up and came outside, Bradshaw fired a shot into Brock's camper because he believed that Chevy Brock, one of Tom Brock's sons, was insidethe camper and was going to kill him. Bradshaw testified that he then saw Chance Worley's truck drive up, and he went behind the camper to hide from Worley because he was afraid that Worley would be upset over his use of Worley's Porsche. According to Bradshaw's testimony, Worley got out of his truck and asked if Bradshaw was all right, and when Bradshaw said no, Worley handed him a "weed pipe." Bradshaw said that he took four or five hits. Bradshaw also said that Worley kept asking him to go into town to get a new fan belt for the Porsche, but Bradshaw did not want to because he thought that people were going to kill him and that Worley was on their side.

A few minutes after Worley arrived, Bradshaw was walking with Worley, and according to Bradshaw, Worley asked if "he could have that skull." Bradshaw said that he thought Worley was talking about him, and that he then shot Worley. Bradshaw also said that he did not want to kill Worley, as Worley was his best friend.

On cross-examination, Bradshaw admitted that he had carried a gun for the last two to three months and that prior to the shooting, he had been up for two days because of methamphetamine. He also said that he did not know whether Worley was armed on the day of the shooting and that Worley did not point a weapon at him prior to the shooting. Bradshaw further testified that he tried to kill Worley because he thought Worley was going to kill him and that there were no harsh words, but he still shot Worley.

The State then produced rebuttal witness Dr. Paul Deyoub, a forensic psychologist. Dr. Deyoub testified that he performed a forensic evaluation of Bradshaw in June 2003, that he found Bradshaw to be competent to stand trial, and that, at the time of the offense, there was no mental disease or defect as defined by Arkansas law. Bradshaw was, however, diagnosed with antisocial personality disorder and drug dependence. Dr. Deyoub specifically concluded that Bradshaw's thoughts that people were out to kill him and about a pornography ring were most likely a drug-induced psychosis and were perceptions secondary to his substance abuse.

At the close of all of the evidence, the trial court instructed the jury on the elements of attempted first-degree murder. During a hearing outside the jury's presence, Bradshaw sought an instruction on the lesser-included offense of attempted manslaughter. Specifically, Bradshaw proposed instructing the jury that it could convict him of attempted manslaughter if the State proved beyond a reasonable doubt that he attempted to cause the death of Chance Worley under circumstances that would be murder, except that he attempted to cause the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. The trial court denied the instruction, stating that "any emotional disturbance, according to the evidence, was as a result of voluntary use of drugs or intoxicants" by Bradshaw, and that voluntary intoxication is not a defense. The jury found Bradshaw guilty of criminal attempt to commit murder in the first-degree and of possession of a firearm by certain persons.

On appeal, Bradshaw claims that the trial court erroneously refused to allow his proffered instruction on the lesser-included offense of criminal attempt to commit manslaughter based on extreme emotional disturbance. The test for whether a lesser-included offense instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003). We will affirm a trial court's decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Ellis v. State, 345 Ark. 415, 47 S.W.2d 259 (2001).

Arkansas Code Annotated section 5-10-104(a)(1) (Supp. 2003) states that a person commits manslaughter if he causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. Here, Bradshaw asserts that, while Arkansas courts have identified manslaughter as a lesser-included offense of murder, there are no Arkansas cases which specifically address whether a defendant may be found guilty of criminal attempt to commit manslaughter as a lesser-included offense of criminal attempt to commit murder. To support his contention that he was entitled to receive an instruction on the lesser-included offense of criminal attempt to commit manslaughter based on extreme emotional distress in this case, Bradshaw cites authority from other states, including Texas and Indiana.

The State, however, argues that the decision of the Arkansas Supreme Court in Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000), should govern this case.1 In Kail, the Arkansas Supreme Court said that, to be entitled to a manslaughter instruction based on extreme emotional disturbance, there must be a basis in fact indicating that the appellant killed the victim in the moment following "provocation in the form of physical fighting, a threat, or a brandished weapon." Id. at 94, 14 S.W.3d at 880-81. Notably, the court in Kail said that feelings of frustration, anger, and resentment resulting from general marital discord fail to constitute a rational basis for giving an instruction on voluntary manslaughter. Id. The State also cites Morris v. State, supra, for the proposition that a trial court, in making its determination as to whether a rational basis exists to mandate a jury instruction, may discount the accused's self-serving testimony.

We agree with the State that Kail and other authorities governing the propriety of giving an instruction on the lesser-included offense of manslaughter committed under an extreme emotional disturbance also apply to the case at bar; thus, we hold that there was no rational basis to require the court to instruct the jury on attempted manslaughter in this case. The evidence presented at trial did not constitute a rational basis for giving an instruction on attempted manslaughter because there was no indication that Bradshaw was provoked by physical fighting, a threat, or a brandished weapon, as required under Kail v. State, supra.

According to Investigator Martineau, no weapons were found at the scene. Although Chance Worley admitted that he frequently carried a weapon and that Bradshaw was aware of this, there is no evidence to show that Worley had a weapon at the time he was shot. In addition, Tom Brock specifically stated that Bradshaw appeared to be "high" on the day of the shooting, and that there was no arguing or fighting between Worley and Bradshaw prior to the shooting nor was there any provocation by Worley.

Although Bradshaw testified that he suffered from a paranoid belief that people were going to kill him and that Worley was on their side, Dr. Paul Deyoub, the forensic psychologist, opined that such thoughts were most likely a drug-induced psychosis and were perceptions secondary to his substance abuse. Bradshaw himself admitted that he had been up for two days prior to the shooting because of methamphetamine, that he had taken a few hits from a weed pipe immediately prior to the shooting, that he did not know whether Worley was armed on the day of the shooting, and that there were no harsh words exchanged. As the State points out, voluntary intoxication is not a defense to any criminal prosecution. See White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Furthermore, the trial judge was free to discount Bradshaw's self-serving testimony in determining whether to allow the attempted manslaughter instruction.

We hold that there was no rational basis in this case to require an instruction on attempted manslaughter; therefore, the trial judge did not err in excluding the proffered instruction.

Affirmed.

Griffen and Neal, JJ., agree.

1 The State asserts that in McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), the Arkansas Supreme Court made it clear that when an accused is charged with an attempt to commit an offense and seeks an instruction on an attempt to commit a lesser-included offense, the inquiry focuses on the elements of the completed, and not the inchoate, offense. Thus, the State reasons that authorities governing the propriety of giving an instruction on the lesser-included offense of manslaughter committed under an extreme emotional disturbance should govern this case as well.