dissenting. The majority correctly
asserts that a defendant may be convicted on a theory of accomplice liability even if he was not charged as such. In Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991), the supreme court affirmed the appellant’s murder and battery convictions on an accomplice liability theory, even though the information did not charge the appellant as an accomplice. However, in that case the proof at trial showed that the victims’ wounds were inflicted by the gunshots fired by the appellant’s accomplice, and thus the proof varied from the charging instrument. Moreover, consistent with the proof, the jury was instructed on accomplice liability, apparently before the jury retired to deliberate. The circumstances of the present case are distinguishable, and I would hold that the trial court erred in giving the belated accomplice liability instruction over Mr. McMurray’s objection.
The following events occurred after the jury had retired to deliberate during the guilty phase. Three hours passed, and the trial court called the jury back into the courtroom to check on their progress toward a verdict. The foreman stated that the jury was still discussing whether the State had made its case, and that the current vote was 7 to 5. When asked whether with more deliberation they would be able to reach a verdict, the foreman replied, “I think it is going to be hard sir.” After a short recess, the trial court advised the jury to resume deliberations.
Sometime later, the jury handed the trial court a handwritten note saying:
1. We believe McMurray was at the scene of the beating
2. We believe the beating occurred while McMurray was there
3. We have some credible witnesses
Question: Can we convict of battery 2nd by circumstantial evidence when none of the credible witness (es) observed the actual beating? If our question is out of order, can we have complicity (or being an accomplice) explained to help us make a decision?
The prosecutor then proposed that the jury be given an instruction on accomplice liability, but Mr. McMurray objected on the basis that he was not charged as an accomplice, but rather as a principal actor in a gang. The prosecutor acknowledged that Mr. McMurray was not tried as an accomplice under the State’s theory, stating, “Not that he was an accomplice, but that he had accomplices.” Mr. McMurray argued that he was never put on notice that he was going to be tried as an accomplice, but only that there was going to be enhancement if he were to be found guilty of second-degree battery. Mr. McMurray complained that such an instruction would be prejudicial and violate due process. Appellant contended, “There was never a State theory that he actually was an accomplice. He was charged as actually doing the beating.” Appellant argued that not only does the information not say anything about accomplice liability, but the theory was also not supported by the evidence. Appellant further stated, “I am objecting to all these jury instructions all of a sudden. After three and a half hours of the jury deliberation, the State has been sitting back, having already given their instructions, [and] now after they get some notes from the jury they want to add new instructions.” In my view, appellant’s objections were of sufficient specificity to preserve his argument on appeal that submission of the jury instruction at that late time in the proceedings was erroneous.
This case is similar to our supreme court’s decision in Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965). In that case the appellant was tried for first-degree murder and the jury was instructed to convict him of that crime or acquit him altogether. After many hours of being unable to convict him of that crime, over the defendant’s objection, the jury was given a lesser-included instruction on second-degree murder. The defendant’s counsel said:
I am going to object to the giving of such instructions at this time; to the Court’s instruction on second degree murder, on the ground that this lawsuit has been tried solely upon the theory that it was murder in the first degree, or that the man was innocent; and at this late stage, after the evidence has been adduced, instructions given, arguments made, and the jury has been out better than 26 hours and deliberated a great deal of time ....
239 Ark. at 884, 395 S.W.2d at 7. The jury convicted the appellant of second-degree murder, and the supreme court held that that was error. The supreme court reasoned:
We cannot put the stamp of approval on the action of the Court in first ascertaining that the jury was hopelessly deadlocked on first degree murder. It was almost the same as “bargaining” with the jury. It is not a question of whether the Court should have given the instruction on second degree murder at the time the other instructions were given: the question, here, is the challenge to the Court’s action, in waiting 28 hours and ascertaining that the jury was deadlocked, and then charging the jury on a lesser degree of the offense.
Id.
In the present case the jury was hung 7-5 after three hours, and the foreman stated it would be “hard” to come to a unanimous conclusion on whether McMurray was guilty of second-degree battery. Then, after inquiring about and receiving an instruction on accomplice liability, the jury convicted McMurray of that crime. This is similar to Rush in that the jury appeared unable to convict on the theory advanced by the State, and was thereafter erroneously permitted to convict on some other basis. The jury indicated in its note that there were no credible witnesses who actually saw Mr. McMurray beat the victim, and thus the jury asked if it could proceed on a theory not advanced by the State — that Mr. McMurray was there and aided in the crime but was not himself a principal. I would hold that the trial court violated Mr. McMurray’s rights in giving the instruction where it was evident that the jury was unable to reach a verdict from the instructions given. See Rush, supra. This would have been error whether the instruction was requested by the jury, the prosecution, or given on the trial court’s own accord.
For the foregoing reasons, I respectfully dissent from the majority’s decision and would reverse and remand this case for a new trial.
Gladwin, Glover, and Marshall, JJ., join in this dissent.