concurring. One of the over-arching principles in criminal jurisprudence is that if evidence, albeit slight, and a rational basis warrant that an instruction of law be given to the jury, it must be given. See, e.g., Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). This principle is sacrosanct.
The majority, however, stands this principle on its head and relies solely on a harmless-error analysis to justify the failure to give the second-degree murder instruction. Because I do not believe that harmless error, by itself, can support the failure to give an instruction that the evidence supports, I dissent from this reasoning.
The majority invokes the “skip rule” for its harmless-error analysis. What that rule means in this context is that because the jury found Boyle guilty of capital murder, it was not prejudicial to refuse to give a second-degree murder instruction. In other words, because the jury found Boyle guilty of an offense two degrees higher than second-degree murder and “skipped” first-degree murder, for which an instruction was given, no prejudice to Boyle resulted.
Of course, this is artificial, post-verdict rationalization. What the “skip rule” does not acknowledge is that the failure to instruct on an offense supported by the evidence and forbidding defense counsel to argue that offense to the jury deprives the defendant of an argument to which he is entitled. That is because an instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). It is only when there is no rational basis for giving the instruction that this court will affirm a circuit court’s exclusion of an instruction on a lesser-included offense. See Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Had the jury been instructed on second-degree murder and had defense counsel been allowed to argue it to the jury, the jury’s verdict may have been altogether different.
This court cited the “skip rule” as an alternative ground for affirmance in recent cases, where we also said there was no evidence to support giving the instruction and, thus, no rational basis for it. See Flowers v. State, supra; Fudge v. State, 341 Ark. 759, 205 S.W.3d 315 (2000). That is certainly the way the State of Kansas has proceeded. See Kansas v. Robertson, 279 Kan. 291, 109 P.3d 1174 (2005). In the instant case, however, the majority hinges its opinion entirely on the “skip rule.” That is wrong, in my opinion.
In sum, I dissent from this reasoning. But because I believe the evidence does not support a second-degree murder instruction, I concur in the result.