# McCoy v. State > Supreme Court of Arkansas · March 14, 2002 · 347 Ark. 913 URL: https://www.frixlaw.com/law-library/cases/9748839 ## Case - **Full name:** Cartrell Lewan McCOY v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** March 14, 2002 - **Citations:** 347 Ark. 913; 69 S.W.3d 430; 2002 Ark. LEXIS 166 - **Precedential status:** Published - **Opinion:** Dissent by Glaze - **Judges:** Donald L. Corbin - **Cited by:** 44 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748839 ## How later opinions describe it (automated extraction) - holding that it was error for the trial court to refuse to instruct the jury on attempted second-degree murder because second-degree murder under section 5-10-103(a)(l) is a lesser-included offense of first-degree murder under section 5-10-102(a)(2), as it differs from the gre… ## Opinion text T 'OM Glaze, Justice, dissenting. I respectfully dissent on the basis that no rational basis existed on which to instruct the jury as to second-degree murder. To explain, I turn to the statutory history leading to our law defining first-degree and second-degree murder. In 1975, the General Assembly enacted Act 280, which reformed, revised, and codified Arkansas’s substantive criminal law. Section 1502 of Act 280, pp. 549-560, defined murder in the first degree as follows: (1) A person commits murder in the first degree if: (a) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony, or in the immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life, or (b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Section 1503 of Act 280, pp. 600-601, defined second-degree murder as follows: (1) A person commits murder in the second degree if: (a) with the purpose of causing the death of another person, he causes the death of any person; or (b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or (c) with the purpose of causing serious physical injury to another person, he causes the death of any person. In the First Extraordinary Session of 1987, the General Assembly enacted Act 52, which revised the above definitions of first-degree murder by adding a new subsection (c) to read as follows: (c) under circumstances manifesting cruel or malicious indifference to the value of human life, he knowingly causes the death of a person fourteen years of age or younger. This new subsection was the General Assembly’s response, reflecting dissatisfaction with this court’s split decision in Midgett v. State, 292 Ark. 278 , 729 S.W.2d 410 (1987), where the court found no evidence of premeditation and deliberation to prove first-degree murder where a child’s death was caused from a beating at the hands of his drunken father; in Midgett this court reduced the father’s conviction to second-degree murder. And finally, the General Assembly in 1989 enacted Act 856, which basically revised the homicide statutes as follows: (1) It moved the first-degree murder provision, “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person,” to be included as an element of the offense of capital murder. See Ark. Code Ann. § 5-10-101 (a)(4). (2) It revised the second-degree murder offense, removing the provision, “with a purpose of causing the death of another person, he causes the death of another person,” and placing that provision in the statute defining first-degree murder. See Ark. Code Ann. § 5-10-102 (a)(2). (3) And as pointed out in (2), Act 856 reduced the second-degree statute to two elements only: One, a person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or, two, with the purpose of causing serious physical injury to another person, he causes the death of any person. After noting the changes made as a result of Acts 52 and 856 set out above, the two following changes are especially pertinent to the case before us: (1) the first-degree murder statute, section 5-10-102(a), now embodies the offense element, “with a purpose of causing the death of another person, he causes the death of another person,” and (2) the second-degree murder statute, section 5-10-103(a), no longer includes that offense element. These foregoing changes in elements are particularly significant in light of the evidence offered at Mr. McCoy’s trial. Here, his victim, Sarah Battung, testified that, by telephone, McCoy told her that he was going to kill her. McCoy subsequently went to Sarah’s apartment, where some of her friends were present. McCoy looked like he was trying to fight Sarah’s friends, and Sarah started to dial 911 on the phone. McCoy asked, “What are you doing? Are you calling the police?” Sarah said, “Yes.” McCoy then pointed a gun directly at Sarah and started shooting in rapid succession, hitting her once in her side and another time in her back. She testified that there was no one between her and him. In the foregoing evidence, McCoy unquestionably attempted to purposely cause Sarah’s death as provided in section 5-10-102(c)(2), as amended by Act 856 of 1989. 1 Prior to 1989, section 5-10-103, the second-degree murder statute and its “purposely” element, would have applied to the offense before us; however, since 1989, that is no longer true. McCoy argues the second-degree murder statute still applies, because under section 5-10-103(a)(l), he knowingly attempted to cause Sarah’s death under circumstances manifesting extreme indifference to the value of human life. However, to read section 5-10-103(a)(l) in this way suggests there is no difference between the language used in the first-degree murder provisions 5-10-102(a)(2) and -103(a). In other words, the General Assembly did a meaningless act when it revised those two statutes so the “purposely” provision was removed from section 5-10-103(a) to 5-10-102(a)(2). I cannot agree. This court has distinguished the phrase “circumstances manifesting extreme indifference to the value of human life” to mean that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. Martin v. State, 262 Ark. 80 , 547 S.W.2d 81 (1977); see also Tigue v. State, 319 Ark. 147 , 889 S.W.2d 760 (1994). To act “purposely,” on the other hand, is when a person acts with the conscious object to engage in conduct to cause such a result — in this case, when McCoy acted with the purpose to cause Sarah’s death. McCoy told Sarah he was going to kill her, and he acted on that by going to her apartment, pointing his gun directly at her, and firing and unloading it at her, hitting her two times in vital parts of her body. This case is not a situation in which the State had to demonstrate McCoy’s mental state by an additional showing of extreme indifference to human life by attendant circumstances. Here, his conscious object was evident by his telling Sarah he intended to kill her, and he immediately proceeded to act on that objective. McCoy’s mental state was made obvious by his sole actions. For McCoy’s acts to fall within the second-degree murder statute, the evidence must have shown that the attendant circumstances manifested extreme indifference to the value of human fife. For example, this court has found such attendant circumstances when a defendant fires his gun into a crowd, see Johnson v. State, 270 Ark. 992 ; 606 S.W.2d 752 (1980); when a father repeatedly beat his frail son who died as a result, see Branstetter v. State, 346 Ark. 62 , 57 S.W.3d 105 (2001); or when, although denying any knowledge of his accomplices’ plans to kill the victim, the defendant joined accomplices in a robbery which resulted in the victim’s death, see Hutts v. State, 342 Ark. 278 , 28 S.W.3d 265 (2000). In the present case, the facts simply do not support a finding of such attendant circumstances. Had the facts been different — for example, had McCoy fired randomly into the room where the party was taking place — then perhaps I could agree with the majority that there was the slightest evidence to support the giving of the lesser instruction. However, McCoy aimed and fired directly at Sarah, shortly after he said he was going to kill her. This is evidence of a purposeful mental state, not evidence of an awareness of attendant circumstances. In conclusion, the majority opinion correctly states that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Atkinson v. State, 347 Ark. 336 , 64 S.W.3d 259 (2002). However, the trial court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. Id. As already alluded to above, because McCoy acted purposely in his attempt to kill Sarah, but failed to present evidence showing there were attendant circumstances that resulted in causing her to be shot, I would affirm McCoy’s conviction. Arnold, C.J., joins this dissent. Purposely is defined by the criminal code as when a person acts purposely with respect to his conduct as a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202 (1) (Repl. 1997). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748839. Public record. Not legal advice.