The opinion
Robert L. Brown, Justice, dissenting. The majority holds today that Byrd was not entitled to an instruction for second-degree murder because the instruction he offered contained the language “under circumstances manifesting extreme indifference to the value of human life.” See Ark. Code Ann. § 5-10-103 (a)(1) (Repl. 1997). According to the majority, the first-degree murder provision under which Byrd was charged is for knowingly causing the death of a person age fourteen or younger. See Ark. Code Ann. § 5-10-102 (a)(3) (Repl. 1997). Because this first-degree murder statute does not include the “extreme indifference” clause, the majority concludes the second-degree murder instruction could not be given.
The first fallacy in the majority’s reasoning is that the first-degree murder subsection for purposeful murder also does not contain the “extreme indifference” clause. See Ark. Code Ann. § 5-10-102 (a)(2) (Repl. 1997). Does this mean that the second-degree murder instruction with the “extreme indifference” language also cannot be used as a lesser included offense for purposeful first-degree murder? Surely not. In fact, we recently held that a jury was appropriately instructed with the second-degree murder offense containing the “extreme indifference” language as a lesser-included offense of purposeful first-degree murder. See Green v. State, 330 Ark. 458 , 956 S.W.2d 849 (1997). The Court of Appeals appears to have held similarly. See Lanes v. State, 53 Ark. App. 266 , 922 S.W.2d 349 (1996). Now with today’s decision, this second-degree murder instruction has been invalidated for both purposeful first-degree murder and knowingly killing a person age fourteen or younger. This unquestionably, was not the intent of the General Assembly, and our circuit courts will now, understandably, be in a quandary about what to do.
The second fallacy in the majority’s reasoning is that it disregards the fact that the “extreme indifference” language relates to the perpetrator’s degree of intent. The definition of “knowingly” in the Criminal Code makes the connection between “knowledge” and “circumstances” abundantly clear:
(2) “Knowingly.” A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that 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;
Ark. Code Ann. § 5-2-202 (2) (Repl. 1997). The Original Commentary to the second-degree murder statute underscores the point:
An actor “knowingly” causes a result when he engages in conduct with an awareness that “it is practically certain that his conduct will cause such a result.” See § 5-2-202(2). The requirement of “knowledge” with regard to attendant circumstances manifesting extreme indifference is satisfied if the actor “is aware . . . that such circumstances exist.” See, § 5-2-202(2).
Ark. Code Ann. Original Commentary, Vol. B, p. 169 (Repl. 1995).
The identical “extreme indifference” language is used in our first-degree battery statute. See Ark. Code Ann. § 5-13-201 (a)(3) (Repl. 1997). We have held on two occasions that the “extreme indifference” clause for first-degree battery relates to proof of the intent or mental state of the accused. See Tigue v. State, 319 Ark. 147 , 889 S.W.2d 760 (1994); Martin v. State, 261 Ark. 80 , 547 S.W.2d 81 (1997). The commentary to the battery statutes emphasizes this point. Ark. Code Ann. Commentaries, Vol. B, pp. 185-187 (Repl. 1995). Hence, for the majority to hold that the clause does not relate to intent flies in the face of prior precedent.
The majority illogically concludes that because the General Assembly ehminated the “extreme indifference” language from the first-degree murder statute for those age fourteen or younger, it intended to wipe out the second-degree instruction with comparable language. Why does that necessarily follow? I do not believe it does. Remember, at that same legislative session the General Assembly added the “extreme indifference” language as part of the capital-murder statute for murdering a person age fourteen or younger. See Ark. Code Ann. § 5-10-101 (a)(9) (Repl. 1997) (Act 683 of 1991).
The majority also cites Brown v. State, 325 Ark. 504 , 929 S.W.2d 146 (1996), to bolster its argument, but that case is clearly inapposite. In Brown, the defendant was charged with capital felony murder and convicted of first-degree felony murder. He asserted as error the failure of the trial court to instruct the jury on the same second-degree murder instruction at issue in this case. We drew the obvious distinction between felony murder and intentional murder and held that the second-degree murder instruction offered related to intentional murder. Thus, it did not qualify as a lesser-included offense.
Again, I worry about the ramifications of what we do today. We abolish a second-degree murder instruction for a whole panoply of purposeful first-degree murder offenses. It is reversible error not to instruct on a lesser included offense when an instruction is warranted. See Moore v. State, 280 Ark. 222 , 656 S.W.2d 698 (1983); Brewer v. State, 271 Ark. 254 , 608 S.W.2d 363 (1980). I would hold, as we have in the past, that it was error not to give the second-degree murder instruction, and I would reverse and remand for a new trial.