Brown v. State

Andree Layton Roaf, Justice, dissenting. The majority states that it “defies common sense” to give the jury instruction on the lesser included offense where defendant’s proof established she was elsewhere and innocent of participation in the cocaine transaction, in other words, where an alibi defense was put forth. It defies neither common sense nor does it defy a most basic premise of our system of criminal justice — that the state must prove beyond a reasonable doubt, every element of its case. The discrepancy in the testimony of the state’s only two witnesses to the drug transaction in question can be said to have injected at least the element of doubt in this case — unless it also defies common sense that policemen can be untruthful or in error, or that drug informants — most often recruited from the seamier elements of our society — can be the same. In this case, one or the other, or perhaps both of these witnesses either fabricated or were mistaken about an aspect of the drug transaction. In any case, the requested instruction should have been given and the jury allowed to weigh all the evidence including the issue of credibility presented by this conflict in testimony.

As to the line of cases cited by the majority in general, and Doby v. State, 290 Ark. 408 , 720 S.W.2d 695 (1986), in particular, if they stood only for the proposition that a lesser included instruction should not be given absent a rational basis, I would be in complete agreement. However, the majority interprets Doby as holding that a defendant who presents a complete denial or an alibi defense is in an “all or nothing” situation, and can never receive a lesser included instruction, regardless of any weakness in the evidence or in the credibility of the witnesses in the state’s presentation of its case. It is “never” that makes this interpretation illogical because an unsuccessful alibi defense in no way establishes the credibility of the state’s witnesses or the elements of the greater offense charged. Even so sacrosanct a concept as stare decisis should not stand in the way of correcting such a clear mistake.

I respectfully dissent.