McCoy v. State

• Decision Date: 14 March 2002
• Docket Number: No. CR 01-762.,CR 01-762.
• Citation: 69 S.W.3d 430,347 Ark. 913
• Parties: Cartrell Lewan McCOY v. STATE of Arkansas.
• Court: Arkansas Supreme Court

69 S.W.3d 430

347 Ark. 913

Cartrell Lewan McCOY v. STATE of Arkansas.

No. CR 01-762.

Supreme Court of Arkansas.

March 14, 2002.

William R. Simpson, Jr., Public Defender; Brett Qualls and Steve Abed, Deputy Public Defenders, by: Deborah R. Sallings, Deputy Public Defender, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by Lauren Elizabeth Heil, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Cartrell Lewan McCoy was convicted of attempted first-degree murder and burglary in the Pulaski County Circuit Court. He was sentenced to thirty years' and five years' imprisonment, respectively, and ordered to pay a fine of $5,000. Additionally, the trial court revoked his probation for a prior conviction of possession of cocaine with intent to deliver and sentenced him to a concurrent term of fifteen years' imprisonment. Appellant appealed to the Arkansas Court of Appeals, arguing that the trial court erred in denying his motion to instruct the jury on the crime of attempted second-degree murder.¹ The court of appeals agreed with Appellant and reversed. See McCoy v. State, 74 Ark.App. 414, 49 S.W.3d 154 (2001). The State filed a petition for review of that decision, and we granted it, pursuant to Ark. Sup.Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001); Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). We reverse the trial court and affirm the court of appeals.

The facts of this case are not in dispute. On August 11, 1999, Appellant entered the apartment of Rodney Wilson and began firing a gun toward his ex-girlfriend, Sarah Battung. Battung was hit by two bullets, one in her chest and one in her back. As a result of the incident, Appellant was charged with attempted first-degree murder under Ark.Code Ann. §§ 5-3-201 and 5-10-102(a)(2) (Repl.1997). In addition, Appellant was charged with residential burglary, in violation of Ark.Code Ann. § 5-39-201(a)(1) (Repl.1997), for having entered or remained unlawfully on Wilson's premises.

At the conclusion of all the evidence, Appellant requested an instruction on attempted second-degree murder, under Ark.Code Ann. § 5-10-103(a)(1) (Repl. 1997). The State objected on the ground that the attempt statute, section 5-3-201, requires that a person act purposely, while second-degree murder under section 5-10-103(a)(1) requires that a person act knowingly.

The State contended that it was not possible to purposely attempt a knowing offense. The trial court agreed and refused to instruct on second-degree murder. The jury convicted Appellant of attempted first-degree murder and burglary.

Appellant challenged the attempted-murder conviction in the court of appeals. He argued that the trial court had erred in refusing to instruct on attempted second-degree murder, because it is a lesser-included offense of attempted first-degree murder. In response, the State abandoned its trial argument and submitted three alternative reasons to affirm the trial court's ruling. First, the State argued that attempted second-degree knowing murder is not a lesser-included offense of attempted first-degree purposeful murder, because second-degree murder requires the additional proof that the crime was committed "under circumstances manifesting extreme indifference to the value of human life." See section 5-10-103(a)(1). Second, the State argued that the trial court's refusal to give the instruction is correct because the instruction proffered by Appellant, a standard AMCI 2d instruction, did not accurately state the law. Third, the State argued that there was no rational basis for instructing the jury on attempted second-degree murder. The court of appeals was not persuaded by any of these arguments, and it reversed Appellant's conviction and remanded for new trial. The State petitioned for review of this decision, and we granted it for the purpose of clarifying the law on this issue.

Before we reach the merits of this issue, we must address a preliminary issue concerning the appropriate test for determining when an offense is included in another offense. In Goodwin v. State, 342 Ark. 161, 27 S.W.3d 397 (2000), this court observed in a footnote that there were possible inconsistencies between our case law and Ark.Code Ann. § 5-1-110 (Repl.1997), regarding the requirements for a lesser-included offense. See also Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). Our case law has generally required that three criteria be met before an offense will be considered a lesser-included offense. Section 5-1-110(b), on the other hand, provides three alternative ways in which an offense may be included in another offense. This inconsistency was not directly addressed in Goodwin because both parties had relied solely on this court's case law and had not otherwise briefed the issue. This court made it clear, however, that it would be inclined to address this issue in the future, once it was properly before us.

In the present case, the State relies on this court's case law, while Appellant relies on one of the alternative tests set out in section 5-1-110(b). Particularly, he relies on subsection (b)(3), which provides, in part, that an offense is a lesser-included offense if it differs from the offense charged only in the respect that a lesser kind of culpable mental state suffices to establish its commission. Thus, because Appellant relies on section 5-1-110, we will address the inconsistencies between our cases and that statute.

Section 5-1-110 was originally enacted in Act 280 of 1975 and became effective January 1, 1976. Prior to the passage of Act 280, the requirements for determining when an offense was included in another offense were established at common law, beginning with McBride v. State, 7 Ark. 374 (1847). There, this court held: "A party indicted of one offence may be convicted of a lesser, provided it be of the same class with that which he is charged." Id. at 375. This holding was expanded on in Cameron v. State, 13 Ark. 712, 714 (1853), wherein this court held:

[U]pon an indictment for a felony, the accused may be convicted of a misdemeanor, where both offences belong to the same generic class, where the commission of the higher may involve the commission of the lower offence, and where the indictment for the higher offence contains all the substantive allegations necessary to let in proof of the misdemeanor.

This court adhered to this three-part test for over one hundred years. See, e.g., Sharpensteen v. State, 220 Ark. 839, 250 S.W.2d 334 (1952); Bailey v. State, 215 Ark. 53, 219 S.W.2d 424 (1949); Moreland v. State, 125 Ark. 24, 188 S.W. 1 (1916); Monk v. State, 105 Ark. 12, 150 S.W. 133 (1912); State v. Nichols, 38 Ark. 550 (1882); Guest v. State, 19 Ark. 405 (1858); Strawn v. State, 14 Ark. 549 (1854).

In Gaskin v. State, 244 Ark. 541, 426 S.W.2d 407 (1968), this court altered its prior decisions and opted for a more succinct test: "To be an included offense, all the elements of the lesser offense must be contained in the greater offense—the greater containing certain elements not contained in the lesser." Id. at 543, 426 S.W.2d at 409 (quoting Beck v. State, 238 Ind. 210, 213, 149 N.E.2d 695, 697 (1958)). However, in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), this court retreated from the one-dimensional test adopted in Gaskin and reaffirmed the prior three-prong test established in Cameron. This remained the test for lesser-included offenses until the General Assembly passed Act 280 of 1975.

Act 280 created our current comprehensive Criminal Code. The Act's purpose is reflected in its title: "AN ACT to Reform, Revise, and Codify the Substantive Criminal Law of the State of Arkansas[.]" Section 105 of the Act was originally codified as Ark. Stat. Ann. § 41-105 and is now found at section 5-1-110. That section provides in pertinent part:

(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:

(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or

(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

This statute is clearly written in the disjunctive, connected with the term "or," and provides three distinct ways in which an offense may qualify as a lesser-included offense. As if the statute itself was not clear enough, the Official Commentary to this provision plainly reflects the legislature's intent in establishing multiple ways to determine whether an offense is included in another:

By defining an included offense, subsection (b) serves two functions. Its primary purpose is to authorize conviction of offenses not expressly named in the indictment or information, but it also delineates the exact scope of subsection (a)(1)'s prohibition on multiple convictions. Application in either context turns on the meaning of included offense, which the Code defines by establishing three alternative tests. [Citation omitted.] [Emphasis added.]

This court initially recognized that three separate tests were established by the foregoing statute. For example, in Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978), the appellant argued that the trial court erred in instructing the jury on negligent homicide at his trial for manslaughter. This court held that under the third test in section 41-105(2)(c), now section 5-1-110(b)(3), negligent homicide was a lesser-included offense of manslaughter because the only difference between...