Brown v. State

• Court: Arkansas Supreme Court
• Writing for the Court: ROAF
• Citation: Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (Ark. 1996)
• Decision Date: 16 September 1996
• Docket Number: No. CR,CR
• Parties: Damion Jemon BROWN, Appellant, v. STATE of Arkansas, Appellee. 96-73.

Page 146

929 S.W.2d 146

325 Ark. 504

Damion Jemon BROWN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-73.

Supreme Court of Arkansas.

Sept. 16, 1996.

Chris Tarver, Little Rock, for Appellant.

Clint Miller, Assistant Attorney General, Little Rock, for Appellee.

ROAF, Justice.

Appellant Damion Jemon Brown was charged with capital felony murder for the killing of Jess Brown during an attempted robbery. He was convicted of the lesser-included offense of first-degree felony murder and sentenced to life imprisonment. For his sole point on appeal, he contends that the trial court erred in refusing to instruct the jury on the lesser-included offense of second-degree murder. We find no merit to the argument and affirm the conviction.

On February 22, 1994, Jess Brown was shot while he was working at Rocky's One Stop convenience store in Little Rock. Subsequently, two men were seen running from the convenience store. Jess Brown died as a result of a single gunshot wound to the chest and abdomen.

At trial, the State introduced a taped statement made by Damion Brown in which he stated that he and Greg Hogue were standing outside of Rocky's One Stop. The plan was for Brown to stand in the doorway to watch for people while Hogue robbed the store. According to the statement, Damion Brown entered the store first, the store owner pulled a gun, and Damion Brown dropped to the floor. Damion Brown stated that Greg Hogue fired the shot that killed Jess Brown.

Marcus Hall, an employee of Rocky's One Stop, testified that he went to the store on the evening of the shooting to purchase batteries. Hall testified that when he arrived at the store, he observed two men behaving suspiciously at a washeteria next door and warned Jess Brown about them. He stated that Jess Brown had several guns positioned around the convenience store, including one hidden beneath some paper on the counter beside the cash register. Hall further testified that Jess Brown was standing behind the cash register, and Hall was bent over behind Brown searching for batteries when he heard a gunshot and saw that Brown had been shot.

The defense presented the testimony of Mark Poindexter, a co-defendant in the case who had testified in a prior proceeding, for the purpose of showing that the robbery was not Damion Brown's idea. Poindexter's entire testimony was read to the jury. Poindexter testified that he, Damion Brown, Greg Hogue, and two others drove in Poindexter's car to a park down the street from Rocky's One Stop in order to commit a robbery. He stated that Damion Brown and Greg Hogue left the car, covered their faces with ski masks or bandannas and, armed with guns, walked to the store. He further testified that he heard a gunshot, and Hogue and Brown ran back to the car.

After the conclusion of all the evidence, the jury was instructed on capital felony murder, the lesser-included offense of first-degree felony murder, aggravated robbery, accomplice liability, and the affirmative defense to capital felony murder that Brown did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. The jury found Brown guilty of first-degree felony murder and aggravated robbery. The aggravated robbery verdict was merged in the first-degree murder conviction, and Brown was sentenced by the jury to life imprisonment.

On appeal, Brown asserts that the trial court erred in refusing to instruct the jury on the lesser-included offense of second-degree murder. Brown was charged by information with capital murder and aggravated robbery. The capital murder count alleged that Brown, acting alone or with one or more persons, committed or attempted to commit aggravated robbery and, in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice caused the death of Jess Brown under circumstances manifesting extreme indifference to the value of human life. Prior to submission of the case to the jury, Brown requested that the jury be instructed on the offense of second-degree murder on the basis that it was a lesser-included offense of capital felony murder. Brown proffered an instruction on second-degree murder, and the trial court refused to give the instruction. On appeal, Brown contends that a rational basis existed for the jury to conclude that he, through the transferred intent of Hogue, knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life.

This court has held that where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should give the lesser-included offense instruction, and it is reversible error not to do so. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Error occurs when the trial court refuses to give the lesser-included instruction where there is the slightest evidence to warrant it. Id. Consequently, we must determine whether second-degree murder is a lesser-included offense of capital felony murder and, if so, whether there was sufficient evidence to warrant the instruction on second-degree murder.

Before an offense will be considered a lesser-included offense of a greater one, three basic requirements must be met: (1) the lesser offense must be established by proof of the same or less than all the elements of the greater offense; (2) the lesser offense must be of the same generic class as the greater offense; and (3) the differences between the two offenses must be based upon the degree of risk or injury to person or property or upon grades of intent or degrees of culpability. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). Arkansas Code Annotated § 5-10-101 (Supp.1995), Capital murder, provides in part:

(a) A person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation...