Morris v. State

• Decision Date: 16 January 2003
• Docket Number: No. CR 02-662.,CR 02-662.
• Citation: 94 S.W.3d 913,351 Ark. 426
• Parties: Calvin MORRIS v. STATE of Arkansas.
• Court: Arkansas Supreme Court

94 S.W.3d 913

351 Ark. 426

Calvin MORRIS v. STATE of Arkansas.

No. CR 02-662.

Supreme Court of Arkansas.

January 16, 2003.

James Law Firm, by: William Owen James, Jr., and Clay Buchanan, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

Appellant Calvin Morris was convicted of first-degree murder and sentenced to forty years in prison. He appeals on the basis that the circuit court erroneously refused to instruct the jury on second-degree murder and manslaughter. We agree that the circuit court erred in not giving an instruction on second-degree murder, but we affirm the court's refusal to instruct on manslaughter.

During the evening hours of November 26, 1999, Morris and a friend, Daniel Fells, were leaving a nightclub in Little Rock called Elevations and walking towards Morris's car when a second car driven by Chris Sharp entered the parking lot. In the car driven by Sharp were his wife, Sonya, and Leonard Jackson and Johnny Jackson. According to Morris's testimony, the Sharp car approached him "real fast," and he had to jump away to avoid being hit.

An argument ensued between the occupants of the Sharp vehicle and Morris. The Sharp vehicle drove up a hill, turned around, and came down the hill where there was a second encounter between the occupants of the Sharp vehicle and Morris and Daniel Fells, who were now in a car which was also occupied by Courtney Grandy and Kevin Brown. Insults were exchanged, and Kevin Brown fired his pistol.

The Sharp vehicle left the parking lot and proceeded down Asher Avenue. At the intersection of Asher and University Avenues, Morris's car pulled up beside the Sharp car. There was another vehicular accident at the intersection involving other people, which police officers were investigating. When the light turned green, Morris testified that the window in the back seat of Sharp's car was halfway down, and he thought he saw a gun.

He further testified that he was scared and panicked. According to witnesses, he fired two or three shots at the Sharp vehicle. One shot passed through the backseat window and struck Chris Sharp in the back of the head, killing him.

Morris was charged with first-degree murder and committing a terroristic act and was tried before a jury. His defense attorney offered instructions on second-degree murder and manslaughter as lesser included offenses, but the circuit court refused to give them. The jury was instructed on justification as a defense. The jury found Morris guilty of first-degree murder and committing a terroristic act but was unable to arrive at a sentence. The circuit court sentenced Morris to forty years on each offense, with the sentences to be served concurrently.

Morris appealed his first-degree murder conviction to the court of appeals on grounds that it was error for the circuit court not to instruct on the lesser included offenses of second-degree murder and manslaughter. The court of appeals agreed that it was error not to give these instructions and, in an unpublished opinion, reversed the murder conviction and remanded for further proceedings. Morris v. State, CA CR01-1056, 2002 WL 1204413 (June 5, 2002). The State petitioned this court for a review of the court of appeals decision, and we granted review. When we grant review, we consider the matter as if the appeal had been originally filed in this court. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002).

I: Second-Degree Murder

Morris first contends that it was error for the circuit court not to instruct on second-degree murder. We agree.

Morris's counsel proffered the following instructions, relating to second-degree murder, which are based on Ark.Code Ann. § 5-10-103(a)(1) and § 5-2-202(2) (Repl.1997), after the circuit court refused to give them:

AMCI 2d 1003

SECOND DEGREE MURDER

Calvin Morris is charged with the offense of murder in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that:

Calvin Morris knowingly caused the death of Christopher Sharp under circumstances manifesting extreme indifference to the value of human life.

DEFINITIONS

"Knowingly" — A person acts knowingly (or with knowledge) with respect to his conduct or the circumstances that exist at the time of his act when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

This court has frequently stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. See, e.g., Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). We have further made it clear that we will affirm a trial court's decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra.

The question before us, then, is, whether a rational basis exists for giving the second-degree murder instruction. Stated differently, was there evidence, however slight, that supported giving the instruction. We believe that there was.

We have recently said that for a defendant to be entitled to an instruction for the lesser-included offense of second-degree murder, he "must be able to point to evidence in the record that supports a finding that he acted with a `knowing' mental state rather than a `purposeful' mental state." Britt v. State, 344 Ark. 13, 23, 38 S.W.3d 363, 370 (2001). In the case before us, it is beyond dispute that Morris shot his pistol. On direct examination, he testified:

DEFENSE COUNSEL: IS your window down?

MORRIS: Yes, sir.

DEFENSE COUNSEL: Is his [Kenneth Jackson's] window down all the way?

MORRIS: No, sir. It's like halfway.

DEFENSE COUNSEL: Okay.

MORRIS: And so I believed the light turned green because it had to turn green for us to continue on. And right when the light had turned green, I thought I seen — I thought I seen him reach for a gun and I was scared. I freaked out and I shot. I didn't aim or nothing, I just reacted to the situation.

Based on the fact that Morris testified that he knowingly shot at the Sharp vehicle without aiming at Chris Sharp, the victim, the jury could have believed that there was evidence to support a knowing mental state as opposed to a purposeful mental state to kill Chris Sharp. See Britt v. State, supra. Moreover, he testified that it was Kenneth Jackson that he believed had a gun, not Chris Sharp.

The circuit court erred in refusing to give the second-degree murder instruction.

II: Manslaughter

We turn next to Morris's contention that he was entitled to an instruction on the lesser-included offense of manslaughter, and, specifically, an instruction on reckless manslaughter. The circuit court refused to so instruct, and Morris's counsel proffered the following instructions based on Ark.Code Ann. § 5-10-104(a) and 5-2-202(3) (Repl.1997):

AMCI 2d 1004

MANSLAUGHTER

Calvin Morris is charged with the offense of manslaughter. To sustain this charge, the State must prove beyond a reasonable doubt that:

(A) Calvin Morris caused the death of Christopher Sharp under circumstances that would be murder, except that he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. You should determine the reasonableness of the excuse from the viewpoint of a person in Calvin Morris's situation under the circumstances as he believed them to be: or

(B) Calvin Morris recklessly caused the death of Christopher Sharp.

DEFINITIONS

"Recklessly." — A person acts recklessly with respect to the results of her conduct when she consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.

Again, the test for whether an instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra. In reviewing whether slight evidence or a rational basis exists for giving the manslaughter instruction, we first consider what evidence Morris could conceivably have relied on for recklessly forming a belief that he needed to use deadly force against the Sharp vehicle. We come up with the following:

I. In an earlier incident in a nightclub parking lot, the Sharp car almost hit Morris.

II. Occupants in the Sharp car and Morris's car began arguing after that.

III. Later in the evening while Morris's car and Sharp's car were side-byside at a stop light, an occupant in the victim's car either started to roll down his window or had partially done so already. Morris thought he saw a gun, panicked, and shot Chris Sharp.

IV. Only one person, Daniel Fells, other than Morris testified that threats came from Sharp's car, but Fells admitted on cross-examination that he probably had told the police officers following the shooting that no threats were made.

Morris relies on the case of Harshaw v. State, supra, as precedent for reversing the circuit court. But in Harshaw, there was evidence to the effect that the victim had a gun and intended to use it. We wrote in Harshaw:

According to Mr. Harshaw's testimony and that of other eyewitnesses, Mr. Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun:

V. "Oh, that's all right. I'll just go get my gun and shoot it up."

VI. "It'll be some pistol play out here."

VII. "I'll get my nine and shoot this MF up."

VIII. "If there was a problem, I'd have a gun."

IX. "Well, you...