Evote Humphrey v. State of Arkansas

Evote HUMPHREY v. STATE of Arkansas

CR 97-525                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 26, 1998


1.   Criminal law -- self-defense -- condition precedent to plea. -- 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. 

2.   Criminal law -- justification -- reasonableness of apprehension. -- A
     critical issue with respect to self-defense is the
     reasonableness of the appellant's apprehension that he was in
     danger of losing his life or receiving great bodily injury; to
     justify the assault, it must have appeared that the
     circumstances were such as to excite the fears of a reasonable
     person; a person is not entitled to act upon his belief that
     he was in danger unless it is an honest belief, arrived at
     without fault or carelessness, and acted upon with due
     circumspection.

3.   Criminal law -- justification -- State's burden to negate defense --
     question of fact. -- Because justification is not an affirmative
     defense, the State has the burden of negating the defense once
     it is put in issue; the defense of justification is a matter
     of intent and a question of fact for the jury.

4.   Criminal law -- self-defense -- what accused must show. -- One who
     claims self-defense must show not only that the person killed
     was the aggressor, but that the accused used all reasonable
     means within his power and consistent with his safety to avoid
     the killing.

5.   Criminal law -- self-defense -- evidence of specific acts of violence
     relevant to plea. -- Evidence of specific acts of violence that
     were directed at an accused or were within his knowledge are
     probative of what the accused reasonably believed at the time
     and thus relevant to his plea of self-defense.

6.   Jury -- instructions -- no error in refusing to give where there is no
     basis in evidence. -- 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; 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 evidence to
     support the giving of the instruction.

7.   Jury -- instructions -- justification -- standard of review. -- The
     appellate court's role is not to weigh the evidence to
     determine whether a justification instruction should have been
     given; instead, the standard requires that the court limit its
     consideration to whether there was any evidence tending to
     support the existence of a defense; if there is such evidence,
     then the justification instruction must be submitted to the
     jury so that it can make a factual determination concerning
     whether the charged conduct was committed in self-defense.

8.   Criminal law -- justification -- evidence showed appellant reasonably
     believed victim was going to shoot him. -- The supreme court
     concluded that, based on the testimony of appellant and
     eyewitnesses, there was clearly some evidence that appellant
     reasonably believed that the victim was going to shoot him
     when appellant fired at victim; there was evidence to support
     a finding that the victim had shot at appellant on a previous
     occasion and had acted menacingly toward him on other
     occasions; there was also evidence that the victim had a gun
     in his possession minutes before he encountered appellant;
     there was at least some evidence that the victim was reaching
     for a gun in his waistband when appellant shot him and that a
     third party retrieved the gun from the victim's body after the
     shooting.

9.   Criminal law -- justification -- retreating requirement -- evidence showed
     appellant did not know he could safely retreat. -- Arkansas Code
     Annotated section 5-2-607(b) (Repl. 1997), which governs the
     use of deadly physical force in defense of a person, requires
     retreat only if a person knows that avoidance of the use of
     deadly physical force can be accomplished with "complete
     safety"; considering appellant's experience with the victim,
     the supreme court concluded that there was some evidence that
     appellant did not know that he could retreat with complete
     safety either when he initially saw the victim or when the
     confrontation began.  

10.  Criminal law -- justification -- State's burden to show excessive force
     caused victim's death -- victim sustained one fatal shot before appellant's
     use of excessive force. -- The State had the burden of
     establishing that any excessive portion of the force used by
     appellant, as opposed to the alleged initial self-defense
     response, caused the victim's death; although there was
     evidence that appellant continued to fire at the victim when,
     arguably, any danger to appellant had passed, there was also
     evidence that the victim sustained at least one fatal shot
     prior to the alleged use of excessive force so that any use of
     excessive force would not be relevant.

11.  Appeal & error -- trial court's refusal of instruction on justification was
     prejudicial error. -- Given the conflicting evidence on
     justification and the fact that the State had the burden of
     showing that it was the alleged excessive force, rather than
     the initial self-defense response, that resulted in the death
     of the victim, the supreme court held that it was prejudicial
     error for the trial court to have refused the instruction on
     justification; the matter was reversed and remanded.


     Appeal from Lafayette Circuit Court; Jim Gunter, Judge;
reversed and remanded.
     Edwin A. Keaton, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice. 
     Evote Humphrey was convicted of capital murder for shooting
Tyrone Cook.  He was sentenced to life imprisonment without parole. 
Mr. Humphrey's sole point on appeal is that the Trial Court erred
in refusing to instruct the jury on justification.  We agree with
Mr. Humphrey that the Trial Court's failure to give that
instruction was error; thus we reverse and remand.
     Mr. Humphrey gave the following testimony.  He met Tyrone Cook
in 1993, and they occasionally engaged in recreational activities
together in Stamps, which was their home town.  In 1994, Mr. Cook
had an altercation with Meiko McKenzie while others, including Mr.
Humphrey, were present.  Mr. Cook was shot in the thigh, and he
thought that Mr. Humphrey had shot him.  Shortly thereafter, Mr.
Humphrey, who was with Vernis Mitchell, saw Mr. Cook, who was with
Dyran Easter, using a crutch and holding a pistol.  They walked
past each other.  Mr. Cook turned around and accused Mr. Humphrey
of shooting him.  Mr. Cook then began shooting at Mr. Humphrey who
began running away from him down the street.  Horace Lowe, Lacedra
Featherston, and two others saw Mr. Humphrey and Mr. Mitchell as
they ran. 
     Mr. Humphrey moved from Stamps to Detroit, Michigan, for a
time but returned to Stamps in early April 1995.  He observed Mr.
Cook drive past his house.  He again saw Mr. Cook approximately a
week before the April 21, 1995 shooting.  Mr. Humphrey and Corey
Cheatam were walking down the street when they saw Mr. Cook driving
his mother's car.  As they passed by the car, Mr. Cook glanced at
them and then he quickly drove off and turned the corner.  As Mr.
Cook's car turned the corner, the trunk opened, and Mr. Cook jumped
out.  Because Mr. Humphrey believed that Mr. Cook was about to
retrieve a gun from the trunk and shoot him, he and Mr. Cheatam ran
away.  On that day, Mr. Humphrey had with him a pistol he had
obtained in Detroit for his protection.
     Days later, Mr. Humphrey was standing with several other
people, including Dyran Easter, when Mr. Cook drove up in Mr.
Cook's mother's car.  Mr. Cook asked Mr. Easter if he had seen
"him" several times and then he drove off.  Mr. Humphrey assumed
that Mr. Cook had seen him because he was standing near the car,
and Mr. Cook looked in his direction.  Mr. Humphrey also had his
pistol with him that day.
     On April 21, 1995, Mr. Humphrey was at his mother's house with
Patrick Stevens and Lamont Reynolds.  Mr. Humphrey decided to go to
the "dairy" to get something to eat.  As they walked, the subject
of Mr. Cook did not arise.  At some point along the way, Mr.
Humphrey saw Mr. Cook who was with James "Bo" Mack on the opposite
side of the street.  Mr. Cook was wearing a "big" coat even though
it was warm outside.  When Mr. Humphrey saw Mr. Cook, he became
nervous and worried that Mr. Cook was going to shoot him because of
the previous encounters, including the one in which Mr. Cook had
shot at him.  Mr. Humphrey did not see Mr. Cook with a gun, but he
thought that he was armed.  Mr. Humphrey did not turn around and
walk away, as he was afraid to turn his back to Mr. Cook because of
the incident in which Mr. Cook shot at him.  As Mr. Humphrey walked
past Mr. Cook, he watched him to be certain that Mr. Cook did not
pull out a gun.  Mr. Cook was also watching Mr. Humphrey.  As they
passed each other, Mr. Cook asked Mr. Humphrey if he had a problem
with him.  
     Each turned around to face the other.  Mr. Cook became angry
and asked Mr. Humphrey why he was looking at him.  When Mr. Cook
reached for something which Mr. Humphrey believed to be a gun, Mr.
Humphrey began shooting at him.  Mr. Humphrey continued firing his
gun, he testified, because Mr. Cook seemed to continue to come at
him while reaching for something.  He had fourteen rounds in the
clip and one round in the chamber.  Mr. Humphrey was afraid of Mr.
Cook and believed that if he had not shot Mr. Cook, Mr. Cook would
have shot him. 
     Mr. Humphrey's testimony regarding the incidents with Mr. Cook
prior to the shooting were corroborated by the testimony of several
witnesses.  Two witnesses testified as to the incident in which Mr.
Cook shot at Mr. Humphrey.  Horace Lowe testified that, in the fall
of 1994, he walked outside his house and heard a gun shot.  He then
saw Mr. Humphrey and another young man running.  He assumed that
the shooter was going to shoot at them again because they were
ducking and swerving as they ran.  He testified that neither of the
two men that ran past his house was carrying a gun.  
     Lacedra Featherston testified that she saw Mr. Cook, who was
using crutches and carrying a pistol, and Dyran Easter walking in
front of her home in 1994.  Mr. Humphrey and Vernis Mitchell were
walking from Mr. Humphrey's home and were further down the street. 
Mr. Cook, who was standing in front of her house, asked Mr.
Humphrey, who was standing down the street, why he shot him.  She
further testified that she could not hear Mr. Humphrey's response,
but that Mr. Cook then pointed his gun at him and said that he was
going to kill him.  She stated that Mr. Cook then began shooting at
Mr. Humphrey, and Mr. Humphrey ran away.  She testified that
several shots hit a stop sign as Mr. Humphrey ran down the road,
that a shot hit the side of a building when Mr. Humphrey ran behind
the building, and that Mr. Cook fired at least five or six shots. 
She stated that Mr. Mitchell did not run away because Mr. Cook was
only shooting at Mr. Humphrey.
     Corey Cheatham corroborated Mr. Humphrey's testimony regarding
the incident in which Mr. Cook allegedly opened his trunk to get
what Mr. Humphrey believed was a gun.  He testified that Mr. Cook
shut the trunk and got back in the car when they ran away.
     Zenolia Hilliard, a rebuttal witness for the State, testified
that Mr. Cook was her nephew.  She stated that she did not remember
him getting shot in 1994 or being on crutches, and she would have
known if he had gotten shot.  Ms. Hilliard, who lives in Pine
Bluff, also stated that if Mr. Cook had seen a doctor or stayed in
the hospital, she would have been the one to pay the bill.
     Several witnesses of the April 21 shooting testified for the
State.  There is testimony that Mr. Cook had a gun in his
possession several minutes before the confrontation began between
him and Mr. Humphrey.  There is also testimony that Mr. Cook seemed
to be reaching for a gun before Mr. Humphrey shot him and that he
did not fall after Mr. Humphrey fired the first shot at him.
     Monroe Moore testified that on the night of April 21, as he
stopped his van at his brother-in-law's house, he saw Mr. Cook and
another person shoving each other.  He did not see Mr. Cook with a
gun, and Mr. Humphrey was the only person that he saw holding a
gun.  He did not see whether Mr. Cook reached to his pockets or his
pants for a gun, and he did not see Mr. Humphrey reach for his gun. 
He stated that after Mr. Humphrey shot Mr. Cook one time, Mr. Cook
fell to the ground and Mr. Humphrey kept shooting.  After the first
shot, Mr. Cook attempted to get up and was holding his stomach but
that after Mr. Humphrey shot at him four or five times, Mr. Cook
stopped moving.  Mr. Moore testified that Mr. Humphrey hesitated
after the fourth shot and then started shooting again so that Mr.
Moore believed that Mr. Humphrey was putting another clip in the
gun.  Mr. Moore read from an earlier statement that he gave in
which he said that after the first shot, Mr. Humphrey said, "I told
you mother fucker, I was not playing this time."  Mr. Moore stated
that after the shooting, Mr. Humphrey ran away.
     Lamont Reynolds testified that on April 21, he and Patrick
Stevens were walking with Mr. Humphrey to get something to eat when
they saw Mr. Cook.  James "Bo" Mack and Dyran Easter were with Mr.
Cook.  It was a hot day, and Mr. Cook was wearing a coat.  He
testified that Mr. Cook asked Mr. Humphrey if he had "some beef"
with him, and that they began arguing.  Mr. Cook began pushing Mr.
Humphrey.  Mr. Cook then reached for something at his waist under
his coat as if he had a gun, but he never saw anything that
resembled a gun.  He testified that then Mr. Humphrey shot at Mr.
Cook fifteen or sixteen times from five to ten feet away, and that
he did not remember Mr. Humphrey stopping shooting and then
beginning again.  He stated that Mr. Humphrey was the only person
doing the shooting.  Mr. Cook fell after about the fourth shot, and
Mr. Humphrey kept shooting after Mr. Cook was lying on the
pavement.  He testified that Mr. Humphrey was never in close
proximity to the body while he was shooting, and that he did not
walk around Mr. Cook as he shot at him.  After the shooting was
over, he saw Mr. Mack walk up to Mr. Cook's body, take something
from the body, and put it in his pants.  He left the area after the
shooting.
     Patrick Stevens, Mr. Humphrey's uncle, testified that he was
visiting Mr. Humphrey at his house when Mr. Reynolds came over.  He
stated that he told them that he was going to take a walk across
the tracks, and that Mr. Humphrey and Mr. Reynolds went with him. 
They were walking down the street when they saw Mr. Cook, Dyran
Easter, and James "Bo" Mack walking toward them on the opposite
side of the street.  While Mr. Cook was walking down the street in
their direction, Mr. Cook's mother stopped her car to talk to Mr.
Cook.  She seemed to ask him something, and he pulled his shirt up. 
She then drove off.
     Mr. Stevens stated that about twenty to thirty seconds later,
the confrontation between Mr. Cook and Mr. Humphrey began.  His
testimony as to the subsequent events, which is somewhat confusing,
was abstracted as follows:  

     [Tyrone] asked Evote did he have a problem with him and
     Evote told him no, he reached down there and by that time
     there just heard some shooting going on.  When I say
     reach down there I'm talking about Tyrone.  He was like
     walking down the street then him and Evote he like
     flinched right here, (Indicating and demonstrating to the
     jury) he put his hands inside his pants like something
     like right there (Indicating) but he had on like a coat. 
     I could see his hand his hand went inside his pants like
     something like something like that.  You know I couldn't
     you know as he was walking down the street hollering. 
     After he said something to him Evote started shooting.

He stated that he did not see Mr. Humphrey walking around Mr. Cook
as he shot at him.  Once Mr. Humphrey began shooting, he did not
stop and he did not change clips.  He testified that after the
shooting, Mr. Mack took something from the body of Mr. Cook and
told him that it was a pager; however, he did not see what the item
was.
     Alicia Rodgers, a student nurse, testified that after the
shooting, she checked Mr. Cook's pulse and raised his shirt to see
if he had a heartbeat.  She stated that she did not see a pager or
a gun.  
     James "Bo" Mack testified that on April 21, Mr. Cook gave him
a gun a couple of minutes before Mr. Cook's mother, who was driving
down the street, stopped and asked him if he had a gun with him;
however, Mr. Mack admitted that he told the police that he had
never seen Mr. Cook with a gun.  He testified that Mr. Cook opened
up his jacket to show his mother that he did not have a gun.  He
stated that several minutes after Mr. Cook's mother asked him about
the gun, the confrontation between Mr. Cook and Mr. Humphrey
occurred.  He testified that Mr. Cook did not have the pistol with
him at the time that he was shot.
     Mr. Mack testified that he and Mr. Cook met Mr. Humphrey and
his friends on the street.  He stated that Dyran Easter was not
with him and Mr. Cook, but that he was standing nearby.  He heard
the first gunshot before he saw anyone with a gun, and that he then
saw Mr. Humphrey as he was shooting at Mr. Cook.  He stated that he
saw Mr. Humphrey shooting Mr. Cook after he fell to the ground.  He
stated that the shots were fired quickly and that he was not
certain if the shots stopped before fourteen rounds had been
discharged.  He testified that they did not say anything to each
other or push each other prior to the shooting.  Mr. Mack testified
that after the shooting, he went to his sister's house, and then he
came back to the scene.  He testified that he removed the pager
from the side of Mr. Cook's jeans pocket after the shooting because
it was his.  He offered contradicting testimony as to whether he
took the pager from Mr. Cook's body before or after he went to his
sister's house.  He stated that he did not take a gun from Mr.
Cook's body after the shooting.  He stated that after the shooting,
Dyran Easter asked him for the gun that Mr. Cook had given him
prior to the shooting, and that he gave it to Mr. Easter.   
     Several police officers also testified.  There was some
evidence that Mr. Humphrey may have walked around Mr. Cook's body
as he fired some of the shots.  There was also some evidence that
at least three shots were fired at close range which can be from
one foot to ten feet.  There was evidence that Mr. Cook was shot
five times in the head and neck from above while he was lying in
the street.  One police officer testified that fourteen nine
millimeter spent cartridges were found at the scene.  
     Peter Briggs, Chief Deputy and Criminal Investigator in
Lafayette County, testified that Mr. Humphrey took investigators to
a location where they found the nine-millimeter Smith and Wesson
pistol that was used in the shooting.  He stated that Mr. Humphrey
told the investigators that he used the gun in the shooting.  There
was a fifteen round clip in the weapon and one live round in the
barrel.  He also stated that none of the evidence supports Mr.
Moore's statement that there was a second clip.  
     Deputy Briggs testified that when he interviewed Lamont
Reynolds and Patrick Stevens on either April 21 or 22, 1995,
neither of them said that Mr. Cook tried to reach in his waist band
for a weapon, and only one of them said that it looked as if Mr.
Cook were reaching for something.  He also testified, however, that
several people told him that it looked as if Tyrone Cook had a gun. 
He also testified that the witnesses did not see anything that
resembled a gun, and that nothing had surfaced in the investigation
that led him to believe that Tyrone Cook had a gun in his
possession at the time of the shooting.  
     Gary Lawrence, an employee at the State Crime Lab in the trace
evidence section, testified as an expert on gunshot residue.  Based
on testing of Mr. Cook's hands, Mr. Lawrence testified that Mr.
Cook either fired a gun or his hands were in close proximity of the
firearm.  He stated that, based on the extraordinary high levels of
gunshot residue on the hands, he concluded that the residues were
more consistent with the hands being in front of the muzzle end of
the firearm than from having discharged a firearm.  He also stated
that Mr. Cook's hands had to be exposed to have that level of
residue.  
     Dr. Frank Peretti, a forensic pathologist and medical examiner
for the State of Arkansas, did an autopsy on the body of Tyrone
Cook.  He testified that Mr. Cook sustained fourteen gunshot
wounds.  Seven gunshot wounds were to the right side of the head,
and two gunshot wounds were to the right side of the neck.  He
stated that any one of the seven gunshot wounds to the head would
have been fatal, and any one of the two gunshot wounds to the neck
would have been fatal.  There were two gunshot wounds to the chest,
one of which was situated on top of the right shoulder.  The
shoulder wound was superficial, but the other chest wound would
have been fatal.  There was a gunshot wound to the abdomen on the
left lower quadrant which only involved fatty tissue.  There was
also a fatal gunshot wound on the left side of the abdomen.  There
was a wound in the right buttock that would not have been fatal. 
He testified that, all wounds, even the superficial ones,
contributed to death by blood loss.  Mr. Cook died of the injuries
to the skull and brain and the left side of the chest.  He also
stated that Mr. Cook bled to death in his chest and abdominal
cavities.  The only entrance wound to the back of Mr. Cook's body
was the wound on his right buttock.  He stated that it is very
difficult to determine a sequence of shots in a case like this, and
that he was unable to determine where a person receiving such
wounds was shot first.  The superficial wounds are not
incapacitating, and one could probably get up and move around.  The
head wounds could result in some twitching and jerking of the
extremities, but the recipient could not get up and walk around. 
The neck wound resulted in incapacity, but not immediately.  The
chest wound would cause rapid bleeding so that "you wouldn't be
able to do much with that injury either."  He stated that Mr. Cook
might have been able to get up and walk around with the abdominal
injury alone.
     This extensive recitation of the testimony given in this case
shows that the primary, if not the only, issue addressed by both
the defendant's and the State's evidence was whether Mr. Humphrey
shot Mr. Cook with justification.  At the close of the evidence,
defense counsel proffered a written instruction on justification to
be given to the jury.  The Trial Court refused to give the
instruction.  
     Arkansas Code Ann.  5-2-607 (Repl. 1997) provides, in part,
as follows:

     (a) A person is justified in using deadly physical force
     upon another person if he 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) [Added in 1997, and thus not included here.]...
     (b) 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:
     (1) By retreating, except that a person is not required
     to retreat if he is in his dwelling and was not the
     original aggressor, or if he is a law enforcement officer
     or a person assisting at the direction of a law
     enforcement officer; or
     (2) By surrendering possession of property to a person
     claiming a lawful right thereto. [Emphasis supplied.]

     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." Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992) (citing Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985)).  A critical issue is the reasonableness of the
appellantþs apprehension that he was in danger of losing his life
or receiving great bodily injury. Turner v. State, 258 Ark. 425,
527 S.W.2d 580 (1975).  To justify the assault, it must have
appeared that the circumstances were such as to excite the fears of
a reasonable person. Id.  A person is not entitled to act upon his
belief that he was in danger, unless it is an honest belief,
arrived at without fault or carelessness, and acted upon with due
circumspection. Id.  
     Because justification is not an affirmative defense, the State
has the burden of negating the defense once it is put in issue. 
Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).  The defense of
justification is a matter of intent and a question of fact for the
jury.  Johnison v. State, 317 Ark. 431, 878 S.W.2d 727 (1994).  One
who claims self-defense must show not only that the person killed
was the aggressor, but that the accused used all reasonable means
within his power and consistent with his safety to avoid the
killing.  Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). 
Evidence of specific acts of violence that were directed at an
accused or were within his knowledge are probative of what the
accused reasonably believed at the time and thus relevant to his
plea of self-defense.  Simpkins v. State, 48 Ark. App. 14, 889 S.W.2d 37 (1994).
     The law is clear that 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 evidence to support the giving of the instruction. Id. 
See Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982)
("Justification is not an affirmative defense which must be pled,
but becomes a defense when any evidence tending to support its
existence is offered to support it. [Emphasis supplied.]"). 
     The dissent's description of Mr. Cook as an "unarmed man" is
a factual determination that must be made by a jury.  That
description, as well as the dissent's reference to evidence that
Mr. Cook was not reaching for his gun and that Mr. Humphrey did not
use all reasonable means within his power and consistent with his
safety to avoid killing Mr. Cook, strongly suggests that the
dissenters have overlooked the standard for determining when a
justification instruction must be given.  Our role is not to weigh
the evidence to determine if the justification instruction should
have been given.  Instead, the standard requires that we limit our
consideration to whether there is any evidence tending to support
the existence of a defense.  If there is such evidence, then the
justification instruction must be submitted to the jury so that it
can make a factual determination as to whether the charged conduct
was committed in self-defense.
     Based on the testimony of Mr. Humphrey as well as the
testimony of eyewitnesses, there is clearly some evidence that Mr.
Humphrey reasonably believed that Mr. Cook was about to shoot him
when he fired at Mr. Cook.  There is evidence to support a finding
that Mr. Cook shot at Mr. Humphrey on a prior occasion and had
acted menacingly toward him on other occasions.  There is also
evidence that Mr. Cook had a gun in his possession minutes before
he encountered Mr. Humphrey.  Mr. Cook was wearing a large, black
coat on a warm day.  Mr. Humphrey as well as other witnesses
testified that prior to the shooting, Mr. Cook looked as if he were
reaching for a gun in his waistband.  Additionally, the
investigator testified that other witnesses to the charged crime
told him that Mr. Cook looked as if he were reaching for a gun.  We
recognize that a gun was not found on Mr. Cook's body after the
shooting.  It is, however, undisputed that Mr. Mack removed
something from Mr. Cook's waistband after the shooting and that he
was in possession of Mr. Cook's gun after the shooting.  Mr. Mack
testified that Mr. Cook gave him the gun prior to the shooting and
that the item that he retrieved from Mr. Cook's body was a beeper;
however, Mr. Mack initially told police that he had never seen Mr.
Cook with a gun, and other witnesses testified that they did not
see what the retrieved item was.  Therefore, there is at least some
evidence that Mr. Cook was reaching for a gun in his waistband when
Mr. Humphrey shot him, and that Mr. Mack retrieved the gun from Mr.
Cook's body after the shooting.
     The State argues that the Trial Court correctly withheld the
instruction because Mr. Humphrey did not use all reasonable means
within his power and consistent with his safety to avoid killing
Mr. Cook because Mr. Humphrey could have turned around when he saw
Mr. Cook walking down the street toward him.  To the contrary, Mr.
Humphrey testified that he was afraid to turn his back to Mr. Cook
and walk away because he believed that Mr. Cook would have shot him
if he had done so based on the prior incident in which Mr. Cook
fired at Mr. Humphrey as he ran from Mr. Cook.  There clearly was
evidence tending to show that, after the confrontation began, Mr.
Humphrey did not know that he could retreat with complete safety
because he believed that Mr. Cook was reaching for his gun and was
going to shoot at him as he had done in the past.  The
reasonableness of Mr. Humphrey's belief is supported by the
testimony of eyewitnesses who stated that it looked as if Mr. Cook
were reaching for a gun as well as the testimony of Mr. Cook's
friend, James Mack, that several minutes before the confrontation
began, Mr. Cook was in possession of a gun.       
     Arkansas Code Ann.  5-2-607(b) only requires retreat if a
person knows that avoidance of the use of deadly physical force can
be accomplished with "complete safety."  Clearly, based on Mr.
Humphrey's experience with Mr. Cook, there is some evidence that
Mr. Humphrey did not know that he could retreat with complete
safety either when he initially saw Mr. Cook or when the
confrontation began.  
     The State also argues that there was no evidence of self-
defense because the force was excessive.  In McCarley v. State, 257
Ark. 119, 514 S.W.2d 391 (1974), we held that the Trial Court erred
in admitting evidence of specific wrongful acts allegedly done by
the appellant prior to the incident for which he was tried.  In
determining whether the error was prejudicial we considered whether
other, uncontroverted testimony proved McCarley guilty.  One of the
issues was self-defense.  
     Mr. McCarley had testified that the victim was reputed to be
a bully and always armed.  The State asserted that the theory of
self-defense was "merely colorable" because the appellant never saw
a gun during the encounter and because any defense of his own
person was abandoned when, after having fired at and shot the
deceased, the appellant struck him twice with the butt of a rifle
and twice again fired at deceased from behind a tree at the scene. 
We held that we could not "say with absolute assurance, when all
inferences were drawn in favor of McCarley and the situation viewed
as it appeared to [him], acting as a reasonable person, his plea of
self-defense was totally foreclosed as a matter of law."  McCarley
v. State, 257 Ark. at 124, 514 S.W.2d  at 393.  
     In People v. Hill, 642 N.Y.S.2d 222 (A.D. 1 Dept. 1996),  the
issue was whether a trial court's refusal to instruct the jury as
to justifiable homicide was manifest when the People argued that
the autopsy testimony of the medical examiner noted six shots to
the decedent's head.  The court, rejecting the People's argument,
stated:
     This contention ignores controlling precedent that when
     evidence is proffered in support of the defense, "the
     defendant is entitled to the most favorable view of
     [that] evidence, a standard which was met in the record
     before us.  Even if the jury were to find that defendant
     employed excessive force after gaining some control of
     the gun and repelling the decedent's attack, the People
     still had the burden of establishing that it was the
     excessive portion of the force that caused the death.  No
     such showing was made here.

People v. Hill, 642 N.Y.S.2d  at 223 (citations omitted).
     The State has the burden of establishing that any excessive
portion of the force used by Mr. Humphrey, as opposed to the
alleged initial self-defense response, caused Mr. Cook's death. 
Although there is evidence that Mr. Humphrey continued to fire at
Mr. Cook when arguably any danger to Mr. Humphrey had passed, there
is also evidence that Mr. Cook sustained at least one fatal shot
prior to the alleged use of excessive force such that any use of
excessive force would not be relevant.
     The State quotes Hughes v. State, 260 Ark. 399-A, 540 S.W.2d 592 (1976) in which we said: þNeedless to say, one who engages in
an argument with another person is not entitled to kill his
adversary merely because he thinks him to have a gun.þ  The
testimony in the Hughes case was only that the appellant, in an
out-of-court statement, told witnesses that þhe thought [the
victim] had a gun.þ  There is no indication in the Hughes case that
there was any testimony that the appellant believed that the victim
was reaching for a weapon when he shot him.  That contrasts
markedly with the testimony given here by Mr. Humphrey and others
that it looked like Mr. Cook was reaching for a weapon. 
Additionally, unlike the evidence in this case, there is no
reference to a prior history of life-threatening violence on the
part of the victim toward the appellant in the Hughes case.
     The State also compares the facts in this case to those in
Burton v. State, 254 Ark. 673, 495 S.W.2d 841 (1973).  In the
Burton case, this Court, affirming the voluntary manslaughter
conviction, stated that if the jury believed that the appellant
armed himself and went to a bar in anticipation that the victim
would be there and would attack him, or by acts and demonstrations
provoked an attack upon himself by the victim, with the intent of
killing the victim, or that the appellant voluntarily entered into
a contest or duel with the victim, the appellant would be guilty of
first degree murder.  Burton v. State, 254 Ark. at 678, 495 S.W.2d 
at 844.  We said that if those were the circumstances, the homicide
would not be justified in self-defense unless the appellant had
done everything within his power consistent with his safety to
avoid the danger and avert the necessity of the killing. Id. 
     The State argues that the facts in the Burton case are similar
to the facts in this case because Mr. Humphrey did not report the
alleged prior incidents of violence by Mr. Cook.  He instead
carried a loaded gun when  he did not believe that anyone, other
than the victim, posed a threat to him.  Mr. Humphrey also
testified that he was carrying the gun for his protection "against
no particular person."  This case is distinguishable from the
Burton case because there is no evidence that Mr. Humphrey walked
down the streets of Stamps in anticipation that he would see Mr.
Cook so that he could kill him.  Even after having been fired upon
by Mr. Cook, Mr. Humphrey had foregone several opportunities to
shoot Mr. Cook prior to the ultimate confrontation.       
     Given the conflicting evidence on justification and the fact
that the State had the burden of showing that it was the alleged
excessive force, rather than the initial response, that resulted in
the death of the victim, we hold it was prejudicial error to have
refused the instruction on justification.
     Reversed and remanded.
     Arnold, C.J., and Glaze and Thornton, JJ., dissent.

     W.H. "Dub" Arnold, Chief Justice, dissenting.  Evote Humphrey
shot an unarmed man to death on a city street, shooting him
fourteen times in the head, neck, chest, abdomen, and buttocks, and
the majority believes he is entitled to a jury instruction on
justification as a defense.  Humphrey was charged with and
convicted of the capital murder of Tyrone Cook and sentenced by a
jury to life imprisonment without parole.
     Most importantly, the forensic pathology and trace evidence
dictate against a justification instruction.  Dr. Frank Peretti,
the forensic pathologist and medical examiner for the State of
Arkansas, testified that Cook sustained a total of fourteen gunshot
wounds: seven right-side head wounds; two right-side neck wounds;
two chest wounds; one abdominal wound involving fatty tissue; one
left-side abdominal wound; and one right buttock wound.  Any one of
the seven head wounds was fatal.  Any one of the two neck wounds
was fatal.  One of the two chest wounds was fatal.  One of the two
abdominal wounds was fatal.  Moreover, all the wounds, even the
superficial wounds, contributed to Cook's death by blood loss.  In
all, standing alone, eleven of the fourteen gunshot wounds would
have been fatal.
     Gary Lawrence, an employee of the State Crime Lab Trace
Evidence Section, offers the most compelling testimony mandating
against the justification instruction.  Mr. Lawrence testified that
according to the extraordinarily high levels of gunshot residue on
the victim's hands and the fact that the residues were more
consistent with Cook's hands being in front of the muzzle end of a
firearm -- Cook's hands had to have been exposed to have that level
of residue.  Consequently, the physical evidence demonstrates that
Humphrey could see Cook's hands directly in front of him and not,
as Humphrey suggests, reaching for a gun.  Recall that Cook was
unarmed at the time of the shooting but that Humphrey alleges that
Cook was continuing to come at him while reaching for something. 
The forensic evidence suggests a conclusion to the contrary, that
Cook's hands were exposed and visible to Humphrey, negating the
basis for a self-defense instruction.
     The majority also places great weight on the prior history of
Humphrey and his victim, specifically on an incident where Cook
shot at Humphrey and Humphrey fled to safety.  Again, on the day of
the killing, the majority suggests that these two men's paths
somehow unavoidably crossed and resulted in Cook's death.  However,
this meeting was not inevitable.  In fact, the victim was walking
on the opposite side of the city street with "Bo" Mack, while
Humphrey walked with friends on the other side of the street.  If
the prior incident proves anything, it demonstrates Humphrey's
knowledge of the necessity of retreat.
     Moreover, during a second encounter with Cook, Cook allegedly
drove past Humphrey on the street, stopped his car, and Humphrey
believed that Cook was going to retrieve a weapon from his trunk. 
Humphrey ran away in retreat.  I fail to see what distinguishes the
fatal incident on April 21, 1995, from either of these prior
encounters where Humphrey retreated to safety.  In fact, with
respect to the first incident, Cook actually had a gun whereas on
the day of the fatal shooting Cook was unarmed.
     Although Ark. Code Ann.  5-2-607(a)(3) would permit Humphrey
to use deadly physical force upon Cook if Humphrey reasonably
believed that Cook was about to use unlawful deadly physical force,
Humphrey was prohibited, pursuant to section 607(b), from using
deadly physical force in self-defense if he knew that he could
avoid the necessity of using that force with complete safety. 
Humphrey's prior encounters with Cook only strengthen Humphrey's
awareness of the advisability and duty to retreat from another
meeting.
     Additionally, Humphrey was armed in anticipation of a possible
conflict, and he voluntarily crossed paths with Cook, rejecting the
alternative of retreating from the fatal encounter.  See Burton v.
State, 254 Ark. 673, 495 S.W.2d 841 (1973).  Even after the two men
met on the street, Humphrey's duty to retreat did not diminish.  As
the majority concedes, Humphrey was bound to do everything in his
power, consistent with his safety, to avoid danger and avert the
necessity of killing.  Moreover, to assert a claim of self-defense,
Humphrey must prove that (1) Cook was the aggressor, and (2)
Humphrey used all reasonable means within his power and consistent
with his safety to avoid the killing, including retreat, where
retreat can safely be effected.  Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986).  Further, there must be some rational basis for
submitting a justification instruction to the jury.  Where the use
of force was avoidable with complete safety, Humphrey is not
entitled to a justification instruction.  See id. at 296-97.
     Moreover, the eyewitness testimony of Monroe Moore confirms
that Humphrey kept shooting at Cook, even after Cook was on the
ground.  Humphrey shot Cook fourteen times, and no witnesses
testified that they saw Cook with a gun during the shooting, and
police investigation revealed no such gun.  Although the medical
examiner could not conclude which gunshot wound Cook first
received, eyewitness testimony indicates that it may have been an
abdominal wound. Monroe Moore testified that after the first shot,
Cook fell to the ground, holding his stomach.  In any event,
Humphrey's duty to retreat endured, even after he fired the first
gunshot into Cook.  Rather than retreat, Humphrey fired again,
again, again, again, again, again, again, again, again, again,
again, again, and again.  The trial court correctly held that there
was no rational basis in evidence supporting a justification
instruction, and I respectfully dissent.
     Glaze and Thornton, JJ., join this dissent.