Fincham v. State

• Decision Date: 16 May 2013
• Docket Number: No. CR 12–638.,CR 12–638.
• Parties: Sean FINCHAM, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 204

427 S.W.3d 643

Sean FINCHAM, Appellant

v.STATE of Arkansas, Appellee.

No. CR 12–638.

Supreme Court of Arkansas.

May 16, 2013.

Dan Hancock, Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

CLIFF HOOFMAN, Justice.

A Pulaski County jury found appellant Sean Fincham guilty of first-degree murder and abuse of a corpse in connection with the death of his grandfather, Dennie Gregory. Because he was sentenced to life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2012). For his sole argument on appeal, Fincham asserts that the circuit court erred in refusing his proffered alternative instruction to AMI Crim.2d 301, which he maintains would have allowed the jury to consider the lesser charge of extreme-emotional-disturbance manslaughter without first “acquitting” him of murder. We find merit in Fincham's argument and reverse and remand.

The relevant facts are these. Prior to submission of the case to the jury, the parties and the court took up jury instructions. It was agreed that the jury would be instructed on the charged offense of first-degree murder, as well as the lesser offenses of second-degree murder and extreme-emotional-disturbance manslaughter. The State submitted the standard AMI Crim.2d 301 instruction (hereinafter referred to as “AMCI 301”), the introductory instruction on lesser-included offenses, which reads as follows:

Sean Fincham is charged with Murder in the First Degree. This charge includes the lesser offenses of Murder in the Second Degree and Manslaughter. You may find the defendant guilty of one of these offenses or you may acquit him outright.

If you have a reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant's guilt of all offenses, you must find him not guilty.

Fincham's defense counsel proffered an alternative instruction for AMCI 301 and asserted that it was error for the circuit court to give the standard instruction because it would require the jury to “acquit” Fincham of first-degree and second-degree murder prior to considering whether Fincham was guilty of manslaughter. He argued that because extreme-emotional-disturbance manslaughter required a finding that the defendant had committed a murder,the jury would never consider the offense of manslaughter if it was instructed to move to manslaughter only if it found reasonable doubt on the greater offense. The instruction proffered by Fincham eliminated the second paragraph of the standard instruction.

The jury in this case was also given transitional instructions between each offense that stated, “If you have reasonable doubt of the defendant's guilt on the charge of Murder in the First Degree, you will then consider the charge of Murder in the Second Degree” and “[i]f you have reasonable doubt of the defendant's guilt on the charge of Murder in the Second Degree, you will then consider the charge of Manslaughter.” AMI Crim.2d 302 (hereinafter referred to as “AMCI 302”).

Thereafter, the jury returned a verdict of guilty on both first-degree murder and abuse of a corpse. The sentencing order was entered on March 19, 2012, and Fincham filed a timely notice of appeal.

On appeal, Fincham argues that the circuit court should have granted his request for the jury to be instructed with his proffered instruction because the standard instruction did not accurately state the law. Specifically, Fincham claims that the “acquit first” jury instructions for lesser-included offenses prohibited the jury from considering whether he was guilty of manslaughter if they found him guilty of having committed either first-degree or second-degree murder. Fincham maintains that because extreme-emotional-disturbance manslaughter is not a true lesser-included offense of murder—rather, the jury must find guilt as to murder to find a defendant guilty of manslaughter—the way the jury was instructed in this case prevented it from properly considering manslaughter.

In response, the State contends that Fincham failed to preserve his argument on appeal because defense counsel objected and made a proffer only as to AMCI 301 and failed to object or proffer as to the transitional instructions in AMCI 302. Alternatively, the State argues that this court should reject Fincham's argument on the merits because the instructions as given did not prevent the jury from considering all of the law and all of the facts presented. Specifically, the State cites Blueford v. Arkansas, ––– U.S. ––––, 132 S.Ct. 2044, 182 L.Ed.2d 937 (2012), for the proposition that a jury may reconsider a greater offense even after considering a lesser offense and that neither AMCI 301 nor AMCI 302 requires the jury to acquit a defendant before considering a lesser. The State also argues that Fincham's defense counsel explained to the jury during closing argument that it could consider manslaughter. Finally, the State maintains that if this court finds merit to Fincham's contention, any error was harmless because the facts of this case did not support a rational basis for giving the manslaughter instruction.

Turning first to the issue of preservation, it is true that an appellant is bound by the scope and nature of his arguments made at trial. See Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69. This court has repeatedly stated that it is the appellant's duty to present to this court a record sufficient to show that the circuit judge erred below. See, e.g., Stevenson v. State, 375 Ark. 318, 290 S.W.3d 5 (2008). To preserve an objection to the circuit court's failure to give an instruction, the appellant must make a proffer of the proposed instruction to the judge. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). That proffered instruction must then be included in the record to enable the appellate court to consider it. Id.

Although the State is correct that Fincham failed to make a specific objection below to AMCI 302, we are satisfied that he did properly preserve his argument as it relates to AMCI 301. It is clear from the record that the circuit court was fully apprised of the argument Fincham makes on appeal—that instructing the jury pursuant to the standard introductory instruction on lesser-included offenses provided by AMCI 301 would prohibit the jury from considering manslaughter unless it were to find that there was reasonable doubt on the greater offense of first-degree murder—and that the circuit court rejected that argument. Moreover, Fincham proffered an alternative instruction for AMCI 301, and that proffer is part of the record on appeal. Therefore, we consider the merits of his contention.¹

Our case law is clear that a party is entitled to a jury instruction when it is a correct statement of law and when there is some basis in the evidence to support giving the instruction. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006). Moreover, a trial court is required to give a jury instruction if there is some evidence to support it. Id. A trial court should not use a non-model instruction unless it finds that the model instruction does not accurately reflect the law. Id. In determining if the circuit court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70;Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002).

In this case, the circuit court gave the standard AMCI 301 instruction over Fincham's objection and proffer. Thus, we are faced with the question of whether, as Fincham submits, AMCI 301 forecloses a jury from considering extreme-emotional-disturbance manslaughter unless the jury has reasonable doubt on first-degree murder. We conclude that it does.

To prove first-degree murder, the State had to show that Fincham purposely caused the death of Gregory. Ark.Code Ann. § 5–10–102(a)(2) (Repl.2006). Second-degree murder required proof that Fincham knowingly caused the death of Gregory under circumstances manifesting extreme indifference to the value of human life. Ark.Code Ann. § 5–10–103(a)(1) (Repl.2006). To prove manslaughter, the State had to establish that Fincham caused Gregory's death under circumstances that would be murder except that he caused the death under the influence of an extreme emotional disturbance for which there was a reasonable cause.Ark.Code Ann. § 5–10–104(a)(1)(A) (Supp.2011) (emphasis added).

As we explained in Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), manslaughter adds another element to first-degree and second-degree murder—the requirement that the defendant be acting under an extreme emotional disturbance. “One can kill purposely or knowingly, as in first and second degree murders, and yet be guilty only of manslaughter because of extreme emotional disturbance for which there is a reasonable excuse.” Id. at 425, 837 S.W.2d at 457. In Rainey, the jury found the defendant guilty of first-degree murder, and Rainey appealed, arguing that the circuit court abused its discretion in not giving a manslaughter instruction. We agreed and declined to apply the “skip rule” ² because of the unique properties of the offense of extreme-emotional-disturbance manslaughter—the jury could decide that the defendant killed purposefully but did so under the influence of an extreme emotional disturbance. We acknowledged that extreme-emotional-disturbance manslaughter was not a traditional lesser-included offense because, instead of having a less-culpable mental state, it adds an element. We held that the failure to give the jury the opportunity to consider the manslaughter instruction, which was justified by the evidence, was prejudicial.

The introductory...