dissenting. I respectfully dissent because I believe that the trial court committed reversible error in failing to give the requested jury instruction on second-degree murder. I am concerned that the majority is establishing a new test for determining whether an instruction on a lesser-included offense is warranted without bothering to explain why the old “rational basis” test is not applicable.
The majority has concluded that when instructing on lesser-included offenses, a trial court must choose between alternate versions of an offense, even though, arguably, each version may be applicable to the facts in evidence. To my knowledge, that has never been the law in this State. The long-established test for instructing on lesser-included offenses is provided in Ark. Code Ann. § 5-1-110(c) (Supp. 1995):
The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. [Emphasis added.]
This court has repeatedly held that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). This court will affirm a trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Spann, 328 Ark. 509, 944 S.W.2d 537. Stated another way, where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should instruct on the lesser offense, and it is reversible error not to do so. Brown, 325 Ark. 504, 929 S.W.2d 146. Notwithstanding the fact that the defendant claims to have acted in self-defense, the decision to give an instruction on a lesser offense still turns on a determination of whether there is a rational basis for the instruction. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).
The majority attempts to distinguish this case by analyzing the issue in terms of which alternative paragraph of the second-degree-murder instruction should have been given. Why should the trial court have to make such a choice? I can see no reason why we are not reviewing this issue in terms of whether there was a rational basis for giving the proffered instruction. Clearly, there are situations in which more than one alternative version of a lesser-included offense is supported by the facts in evidence. In other words, a rational basis may exist for instructing on more than one version of an offense. This is one of those cases. Applying the “rational basis” test to the facts of this case, I. cannot escape the conclusion that the trial court committed reversible error in refusing to give the proffered instruction.
Appellant contended below that the evidence warranted an instruction on second-degree murder on the theory that Appellant acted with the purpose of causing serious physical injury to another person in causing the death of Officer Fisher. The trial court rejected that instruction, electing instead to instruct the jury that in order to convict Appellant of second-degree murder, the State must prove beyond a reasonable doubt that Appellant knowingly caused the officer’s death under circumstances manifesting extreme indifference to the value of human life. Appellant argues that it was reversible error for the trial court to refuse the proffered instruction. I agree.
The State argues that there was no rational basis for giving the proffered instruction on second-degree murder because Appellant denied any intent in firing at the officers. That argument is inconsistent with the fact that Appellant was convicted of the first-degree murder of Officer Fisher, on a theory that he had acted with the purpose of causing the death of another person. Clearly, if there was a rational basis for instructing the jury on Appellant’s purpose in causing the death of another person, then'there was an equally rational basis for instructing the jury on Appellant’s purpose in causing serious physical injury to another person. The State cannot contend on the one hand that the proof will not support a finding that Appellant acted with the purpose of seriously injuring someone and, on the other hand, assert that the proof supports the greater finding that Appellant acted with the purpose of killing someone.
In accordance with the State’s argument, the majority states that it is inherently inconsistent for Appellant to testify that he did not shoot at anyone and then request the instruction that with the purpose of causing serious physical injury to another person, he caused the death of Officer Fisher. That, however, is not the correct test. Since when has the determination of whether the proof supports a particular jury instruction depended upon only that evidence produced or claimed by the defendant? The proof either warrants the instruction or it does not. In State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995), the State appealed the trial court’s refusal to instruct on the lesser-included offenses of second-degree murder and manslaughter, based on the trial court’s rationale that if the defendant wanted to gamble between being convicted of the offense charged or being acquitted outright, it was his choice. This court declared error, holding that section 5-1-110(c) does not delegate the decision regarding the propriety of a lesser-included-offense instruction to the defendant, but, requires the trial court to determine whether the proffered instruction concerns a lesser-included offense and; if so, whether a rational basis exists for a verdict acquitting the defendant of the greater offense and convicting him of the lesser. Thus, the majority’s reasoning that the evidence presented by the defense did not support the giving of the proffered instruction is flawed, because it is not for the defense to determine whether there exists a rational basis for an instruction on a lesser-included offense.
Here, the proof presented by both parties would have supported the jury’s conclusion that Appellant acted with the purpose of causing serious physical injury to the persons entering his home. This is evident from the testimony by Appellant and his girlfriend, as well as some of the State’s witnesses, that Appellant had been robbed one month earlier by a group of persons wearing dark clothing, who broke down his door and proceeded to rob him and his guests at gunpoint; that Appellant believed that the officers, who were wearing dark clothing instead of police uniforms, were the same or similar persons who had robbed him one month ago; that Appellant grabbed his gun and began firing in the direction of the door when he heard the door being broken down; that Appellant fired until his gun was empty; and that one officer was dead and another wounded by Appellant’s actions in firing the gun. From that evidence, the jury could reasonably have concluded that Appellant was shooting at the intruders, believing them to be robbers, in an attempt to injure them.
Because I believe that there was evidence presented by both sides from which the jury could have determined that Appellant killed Officer Fisher having the intent to cause serious physical injury to another person, I would reverse the conviction and remand for a new trial.
Newbern and Imber, JJ., join in this dissent.