Brown v. State

Robert H. Dudley, Justice, concurring. I concur in the result of the majority opinion. In Doby v. State, 290 Ark. 408 , 720 S.W.2d 694 (1986), this court held that when a defendant asserts that he is entirely innocent of any crime, no rational basis exists to instruct the jury on a lesser included offense, as the only issue for the jury is whether the defendant is guilty as charged. In so holding, this court overruled Holloway v. State, 18 Ark. App. 136 , 711 S.W.2d 484 (1986), and Flurry v. State, 18 Ark. App. 64 , 711 S.W.2d 163 (1986). We also discussed, but did not overrule, Fike v. State, 255 Ark. 956 , 504 S.W.2d 363 (1974), where the defendant was convicted of assault with intent to rape after the trial court refused to instruct the jury on the lesser included offense of assault. Reversing in Fike, we said:

In the case at bar, it is not questioned that the prosecutrix’s testimony is sufficient to sustain. The verdict of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as trier of facts, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him.

255 Ark. at 959 , 504 S.W.2d at 365 (emphasis added).

I joined the dissenting opinion in Doby, but it was just that, a dissenting opinion. The law became that set out in the majority opinion in Doby. Since that time we have had a number of cases that are best described as perplexing.

In Fladung v. State, 292 Ark. 510 , 730 S.W.2d 901 (1987), the trial court denied appellant’s motion that the jury be instructed on the lesser included offenses of aggravated assault and first degree assault. Id. at 511 . 730 S.W.2d at 902 . On appeal we agreed with appellant and reversed, holding that the testimony of appellant and the Trooper were much the same until appellant turned in the seat with the pistol, after which their stories diverged. Id. at 515 , 730 S.W.2d at 903 . We held that the jury could have believed all of either version of the events or parts of each version. Id. at 513-14 , 730 S.W.2d at 903 . Justice Hickman dissented without opinion. Id. at 515 , 730 S.W.2d at 904 .

We distinguished the circumstances of Fladung from those of Doby by pointing out that in Fladung the appellant never denied that he produced a pistol and that his defense was based upon his purpose in producing the pistol. Id. at 513 , 730 S.W.2d at 903 . Nonetheless, if appellant’s purpose is a question of fact the same as possession of a pistol or drugs, then it is difficult to distinguish Fladung from Doby in principle. See 1983 Supplementary Comments to Ark. Code Ann. § 5-1-110 (1993 Commentaries).

The most recent decision in this perplexing line of cases was Henson v. State, 296 Ark. 472 , 757 S.W.2d 560 (1988), where the we reversed appellant’s conviction of aggravated robbery on grounds that the trial court erred by not giving the requested instruction on the lesser included offense of robbery. Appellant pleaded not guilty and did not testify. The evidence showed that he put his hand in his pocket after he was surprised in the act of emptying a safe. The victim retreated, thinking appellant was reaching for a gun. Holding that the facts were susceptible to more than one interpretation, we held that the trial court should have instructed on robbery as a lesser included offense. Id. at 473 , 757 S.W.2d at 560-61 .

Doby has now been our interpretation of Ark. Code Ann. § 5-1-110 (c) for nine yeai», and the statute has not been amended. We struggled to decide the case, and then expressly overruled two cases to make the holding. The trial court in this case followed the reasoning of Doby and refused to give AMCI 2d 301 and 302. Thus, the trial court correctly followed our law. Under these conditions, it seems wrong to again reverse ourselves, and to again change directions by overruling Doby without a clear warning to the bench and bar. At the same time, our holdings under the rationale of Doby have been perplexing, and the reasoning expressed in the dissenting is unassailable. Thus, I concur in the majority opinion in this case, but in cases tried after this date, I will join the reasoning expressed in today’s dissenting opinion.