Hutchinson v. State
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Cite as 2010 Ark. App. 235
ARKANSAS COURT OF APPEALS
DIVISION III
CACR09-596
No.
DENNIS HUTCHINSON
Opinion Delivered MARCH 10, 2010
APPELLANT
V.
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[CR-2008-983]
STATE OF ARKANSAS
HONORABLE MARION A.
HUMPHREY, JUDGE
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
Richard Ivey was fatally shot when he entered appellant Dennis Hutchinson’s home
on January 15, 2008. Hutchinson and accomplice Brenda Ivey, the victim’s wife, were
subsequently charged with capital murder subject to sentence enhancement for using a firearm
while committing the felony. Hutchinson was convicted by a jury of second-degree murder
and was sentenced to prison under the enhancement provision for a total of 540 months.
Hutchinson contends on appeal that the circuit court erred by refusing the jury instruction
he proffered on self-defense, a non-model jury instruction reflecting language of Ark. Code
Ann. § 5-2-620 (Repl. 2006). He acknowledges that this issue has been addressed in previous
appellate decisions in Arkansas, but he asks that the issue be revisited. Under the precedent
of those prior decisions, we affirm.1
This case was assigned to our court despite Hutchinson’s asserting in his informational
statement that jurisdiction lies with the supreme court because the appeal involves substantial
1
Cite as 2010 Ark. App. 235
At trial the jury was instructed on justification and the use of deadly force in defense
of a person under AMI Crim. 2d 705, our model instruction that reflects the following
language of Ark. Code Ann. § 5-2-607:
(a) A person is justified in using deadly physical force upon another person if the
person reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or violence;
(2) Using or about to use unlawful deadly physical force; or
(3)(A) Imminently endangering the person’s life or imminently about to
victimize the person as described in § 9-15-103 from the continuation of a
pattern of domestic abuse.
(b) A person may not use deadly physical force in self-defense if the person knows that
he or she can avoid the necessity of using deadly physical force with complete safety:
(1)(A) By retreating.
(B) However, a person is not required to retreat if the person is:
(i) In the person’s dwelling and was not the original aggressor[.]
Ark. Code Ann. § 5-2-607 (Repl. 2006).
Hutchinson asserts that an instruction tracking the language of Ark. Code Ann. § 5-2620 is necessary to fully instruct a jury in a criminal case on the law of this state. The statute
sets forth a legal presumption that force used to defend oneself and the lives of persons or
property in one’s home is justified unless overcome by clear and convincing evidence:
(a) The right of an individual to defend himself or herself and the life of a person or
public interest and a significant issue needing clarification or development of the law, or
overruling of precedent.
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Cite as 2010 Ark. App. 235
property in the individual’s home against harm, injury, or loss by a person unlawfully
entering or attempting to enter or intrude into the home is reaffirmed as a fundamental
right to be preserved and promoted as a public policy in this state.
(b) There is a legal presumption that any force or means used to accomplish a purpose
described in subsection (a) of this section was exercised in a lawful and necessary
manner, unless the presumption is overcome by clear and convincing evidence to the
contrary.
(c) The public policy stated in subsection (a) of this section shall be strictly complied
with by the court and an appropriate instruction of this public policy shall be given to
a jury sitting in trial of criminal charges brought in connection with this public policy.
Ark. Code Ann. § 5-2-620 (Repl. 2006).
This court and the Arkansas Supreme Court have addressed Hutchinson’s argument
that the jury should have been instructed on the existence of a presumption that a person may
use force to defend himself in his home unless that presumption was overcome by clear and
convincing evidence. The supreme court has ruled that the presumption in the statute has
no real effect in a case such as this because the State must prove guilt beyond a reasonable
doubt and the clear-and-convincing-evidence standard for overcoming the presumption adds
nothing to the State’s burden. In Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988), as in
the present case, the trial court refused to give a proffered jury instruction reflecting the
language of Ark. Code Ann. § 5-2-620. Our supreme court rejected Hopes’s assertion that
our self-defense statute should be interpreted to say his actions were justified, explaining:
In Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983), we discussed § 5-2-620
and concluded that there is a legal presumption that deadly force used in self-defense
in one’s own home is justified unless overcome by clear and convincing evidence.
The comment to AMCI 4105 [now AMI Crim. 2d 705] discusses the statute and
points out that it has no real effect, as the state must prove guilt beyond a reasonable
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Cite as 2010 Ark. App. 235
doubt and that the “clear and convincing evidence” standard for overcoming the
presumption adds nothing to the state’s burden. See also Clark v. State, 15 Ark. App.
393, 695 S.W.2d 396 (1985).
294 Ark. at 323, 742 S.W.2d at 564. See, e.g., Doles, supra; Clark, supra; see also Comment,
AMI Crim. 2d 705.
The legislature is presumed to be familiar with the appellate courts’ interpretation of
its statutes, and it can amend a statute if it disagrees with those interpretations; absent such an
amendment, the interpretation of the statute remains the law. Sawyer v. State, 327 Ark. 421,
424, 938 S.W.2d 843, 845 (1997). Furthermore, it is well-settled that this court must follow
the precedent of our supreme court. Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999).
We find no merit to Hutchinson’s argument that mere technical changes to Ark. Code Ann.
§ 5-2-620 and its reaffirmation of the statute’s public policy somehow translate into legislative
intent that juries in criminal cases “be instructed as to an individual’s right to defend himself
or herself against a person intruding into his or her home.”
Here, the jury was instructed pursuant to AMI Crim. 2d 705, which required the State
to overcome appellant’s reliance on self-defense of his person by a standard of beyond a
reasonable doubt. Based upon the commentary to the predecessor to AMI Crim. 2d 705 and
existing case law, the court did not err in refusing to give Hutchinson’s proffered jury
instruction under Ark. Code Ann. § 5-2-620.
Affirmed.
VAUGHT, C.J., and KINARD, J., agree.
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CACR09-596
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