dissenting. In State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995), which is being released this date, the State argued eloquently, correctly, and effectively that the function of a jury in our society is to ascertain the truth. Therefore, the State argued, a criminal defendant should not be allowed to gamble by having a jury instructed only on the offense charged without instructions on lesser included offenses in the hope that the jury will find the proof lacking and acquit. The point so well made was that, if the State’s evidence supports a finding that a lesser offense was committed by the defendant, the jury should be allowed to convict of that offense and not be limited to acquittal or conviction of the offense charged, so long as the lesser offense is, by definition, included in the offense charged. In State v. Jones we declare error because the Trial Court declined to instruct on lesser offenses included in the murder offense charged.
In this case, the shoe is on the other foot. Elizabeth Gammon Brown was charged with delivery of cocaine. To prove the offense, the State was required to prove “the actual, construetive, or attempted transfer from one person to another of a controlled substance or counterfeit substance in exchange for money or anything of value whether or not there is an agency relationship.” Ark. Code Ann. § 5-64-101(f) (Repl. 1993). Possession of a controlled substance is a lesser offense included in the offense of delivery. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992). Ms. Brown was not allowed to have the jury instructed on the lesser included offense of possession because she had presented an alibi defense. She thus was placed in an “all or nothing” position just as was the State at the trial in the Jones case.
Having agreed that the State should not have been placed in that position, the majority of the members of this Court turn on Ms. Brown and say her request for instruction on a lesser included offense was properly denied because she presented an alibi defense. That illogically and improperly ignores the fact that the State’s evidence presents a rational basis for instructing on possession as well as sale. It places Ms. Brown in the “all or nothing” position we say today was incorrect when applied to the State in the Jones case. The decision is unfair and nonsensical. If there was a rational basis for the jury to be instructed on the lesser included offense of possession, Ark. Code Ann. § 5-1-110(c) (Repl. 1993), then the jury should have been allowed to consider a lesser included offense so that it could fulfill its function as the finder of truth.
The evidence affecting the decision not to instruct on the lesser included offense was as follows. A drug transaction was arranged between Ms. Brown and Barbara Williams, a confidential police informant. Ms. Williams drove her car to the location where she was to meet Ms. Brown. Officer Lee of the State Police sat on the passenger side of the car, and Officers Robinson and Marshall were nearby in a separate vehicle listening and recording what was said through a body microphone worn by Ms. Williams. Officer Lee testified he gave Ms. Williams $60 in the form of three $20 bills which she carried in her hand as she drove the car without putting the money in her pocket or purse.
Officer Lee testified that Ms. Williams parked her car in front of a residence in Osceola, which was allegedly the home of one of Ms. Brown’s friends. Ms. Williams knocked on the door. A woman answered and allowed Ms. Williams to step inside the house. Officer Lee testified that, although they were inside, only the screen door had been shut, and the larger, wooden door had been left open. A porch light was on. He testified he could see the transaction as it was taking place. Officer Lee stated he saw Ms. Williams hand the other woman money in exchange for something. Ms. Williams then returned directly to the car and handed Officer Lee two rocks of crack cocaine.
Barbara Williams’ version was consistent with Officer Lee’s testimony except she first said she put the money in her pocket, and then that she was not certain of that. She also testified, “I don’t think the door was open where Officer Lee could see this. I can’t say.” She testified she gave the money to Ms. Brown. No testimony was offered to show that Officer Lee or anyone else ascertained that Ms. Williams was not in possession of the money when she returned to the car.
On these facts, it is apparent that the jury, assessing the State’s evidence could easily have decided that the State had not proved beyond a reasonable doubt that Ms. Williams gave Ms. Brown money. Yet the majority of this Court says that, because Ms. Brown presented alibi evidence, the jury has to believe all of the State’s evidence or none of it. It is wrong to say that Ms. Brown’s alibi evidence is in any way relevant to the State’s burden of proof.
Our position on the matter of instructing on lesser included offenses was thoroughly exposed in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), as follows:
This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. Walker v. State, 239 Ark. 172, 388 S.W.2d 13; Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010; Smith v. State, 150 Ark. 193, 233 S.W. 1081; Allison v. State, 74 Ark. 444, 86 S.W. 409; Davis v. State, 72 Ark. 569, 82 S.W. 167. We have been so careful to see that a jury has an opportunity to pass upon lesser offenses as well as the greater one charged that we have held that it is not prejudicial error to give an instruction which permits the jury to find a defendant guilty of a lower offense than that charged, even when the defendant objects, because the evidence shows him to be guilty of the higher offense or of nothing at all. Kurck v. State, 235 Ark. 688, 362 S.W.2d 713, cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412. Still, it is not error for the court to fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Gilchrist v. State, 241 Ark. 561, 409 S.W.2d 329; Sims v. State, 203 Ark. 976, 159 S.W.2d 753; Clark v. State, 169 Ark. 717, 276 S.W. 849; Rogers v. State, 136 Ark. 161, 206 S.W. 152. And we have held that where the higher offense charged included a lower offense and there was evidence sufficient to present a question of fact as to the defendant’s guilt of either, the trial judge’s instruction over defendant’s objection, that the defendant could not under the testimony be convicted of a lower offense than that charged in the indictment, was reversible error. Bryant v. State, 41 Ark. 359.
In Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980), we stated, “We have held that where there is the slightest evidence to warrant such [a lesser included offense] instruction, it was error to refuse to give it.”
In a subsequent decision in which we were sharply divided (4-3), Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), we said there is no basis for any lesser included offense instruction when the defendant simply denies the offense charged occurred. Doby was charged with possession of a controlled substance with intent to deliver. He denied the offense and testified it simply did not occur, thus contradicting the testimony of an officer who said Doby orally admitted to him that Doby had large amounts of controlled substances and that he had been selling them. That holding has been cited and specifically followed in a number of cases. See e.g., Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).
The Doby decision and the ones which have followed it were incorrect.
The problem with the Doby decision, as expressed in the dissenting opinion in that case, and as the State asserted in the Jones case released today, although the State did not discuss the Doby opinion, was that it foreclosed the jury from avenues it might follow in its search for the truth. The dissenting opinion in the Doby case made that same point and stated:
Rather than making the “rational basis” determination by evaluating the state’s evidence against the accused, as had the previous cases, the [majority] opinion subtly shifted the emphasis to the evidence presented by the accused. The result of this kind of thinking is that a plea of not guilty obviates the necessity of giving a lesser included offense instruction. The response to that assertion may be that we will only decline to require it when the accused testifies or presents other evidence denying his guilt. Again, this has the effect of denying the jury an opportunity to evaluate the state’s evidence except to say it is all true or all false.
That is precisely the argument made by the State and approved by this Court in the Jones case we release today.
The majority opinion cites a long string of cases it purports to be in agreement with the Doby decision and its progeny. The list is impressive until the cases are examined. Here is an examination of those cases.
In Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918), Rogers was convicted of murder in the second degree. He was charged with murder in the first degree. There was circumstantial evidence that Rogers had intentionally drowned his infant daughter. An instruction was given on the lesser included offense of murder in the second degree. On appeal he contended it was error to have given the lesser included offense instruction. We said “Where the indictment charges murder in the first degree, and the undisputed evidence shows that the accused, if guilty at all is guilty of murder in the first degree, then it is not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide.” Although we stated that “The proof warranted the jury in returning a verdict only for murder in the first degree ....,” the holding of the case was that “... it is not prejudicial error for the court to give an instruction on the lower degree in such a case, because the error is one that results to the defendant’s advantage.” Unlike this case, there was nothing in the State’s evidence suggesting Mr. Rogers might have been guilty of an offense less than first degree murder. It could be said there was no “rational basis” for anything other than the first degree murder instruction. Although Mr. Rogers testified and mounted an alibi defense, the evidence he presented was not stated by us as a reason for the obiter dictum that it was error to have instructed on second degree murder.
In Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925), Mr. Clark was accused of felony first degree murder. He was convicted of that offense and sentenced to death. The murder occurred at the conclusion of a bank robbery in which Mr. Clark’s role was that of driver of the getaway car. The evidence was that Mr. Clark shot the deceased, a businessman whose business was down the street from the bank, who was trying to apprehend Mr. Clark and his confederates. Mr. Clark’s defense was that he participated in the robbery without any intent to shoot anyone. Seeming to concede that he was a participant in the bank robbery, the underlying felony, he argued on appeal that it was error for the Trial Court to refuse to give an instruction on second degree murder. Obviously, and unlike the evidence now before us, there was no basis for the lesser included offense instruction, and we said so. The case had nothing to do with an alibi defense.
In Caton v. State, supra, from which language is quoted above, an issue was whether the accused was entitled to an instruction on shoplifting as a lesser offense included in grand larceny. We held that the offense of grand larceny charged did not include all the elements of shoplifting, and thus there was no error in failure to instruct on shoplifting. There was nothing about an alibi defense. In the case now before us, we have no doubt that possession of a controlled substance is a lesser offense included in the offense of sale of a controlled substance.
In Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975), all of the evidence showed that the victim of a robbery had been physically accosted and the element of force was present. Mr. Parker contended it was error to fail to instruct on larceny. We said “. . . it is not error to refuse such an instruction when the evidence clearly shows that the defendant is either guilty of the greater charge or innocent.” Again, there was nothing in the evidence to suggest the lesser included offense of larceny and there was no alibi defense.
In Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977), Mr. Barksdale contended it was error to have refused an instruction on breaking and entering as a lesser included offense of burglary. The dispute was apparently over whether a student union building at the University of Arkansas at Pine Bluff was an occupiable structure. We held that there was no basis for the breaking and entering instruction because the evidence was that the building was occupiable. There was nothing to the contrary. No alibi defense was presented.
In Crenshaw v. State, 271 Ark. 487, 609 S.W.2d 111 (Ark. App. 1980), Ms. Crenshaw was convicted of second degree battery. The Court of Appeals simply refused to entertain Ms. Crenshaw’s contention that she was entitled to a verdict form on battery in the third degree. The Trial Court had instructed on battery in the third degree but had withdrawn the instruction and submitted verdict forms only for second degree battery and not guilty. The Court of Appeals affirmed on the ground that the abstract contained no evidence of an objection either to the instructions or to the verdict forms.
In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), Mr. Beed was accused of a number of offenses, including rape. He sought an instruction on sexual abuse in the first degree as a lesser offense included in rape. The victim testified she was certain there had been penetration. Mr. Beed contended her testimony had been confused about whether he desisted in his sexual attack before or during intercourse. We found no basis whatever for that contention and held, looking solely to the State’s evidence, that it was not error to have refused the instruction on sexual abuse in the first degree where the evidence showed the defendant guilty or not guilty of the offense charged and not of a lesser offense. The fact that Mr. Beed had presented alibi testimony was not mentioned in the discussion of the alleged error with respect to the failure to instruct on the lesser included offense.
In Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981), Mr. Sargent was convicted of first degree murder in the killing of his father. The evidence presented by his siblings who were his accomplices was that Mr. Sargent had planned the offense thinking the family would get money, presumably insurance money, if his father were killed in his truck, so he shot him four times and attempted to burn the body while his father was still alive. Mr. Sargent wanted an instruction on the lesser included offense of manslaughter which would have been appropriate upon a showing thar he had caused the death “under the influence of extreme emotional disturbance for which there [was] no reasonable excuse.” We held there was no evidence to support any finding of “extreme emotional disturbance.” Alibi was not in question.
In Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982), Mr. Lovelace was charged with aggravated robbery. Mr. Parker testified that Mr. Lovelace held a gun to him while robbing the convenience store where Mr. Parker was employed. A hidden camera photographed the robber holding a small revolver. Mr. Lovelace contended on appeal that the Trial Court should have instructed on the lesser included offense of robbery. The evidence was clear that the robbery had been conducted at gunpoint. There was no indication whatever in the evidence that the robbery was accomplished other than with the use of a gun. We held there was no rational basis for the lesser included offense instruction. There was no alibi evidence.
In Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982), Mr. Smith denied any knowledge of or complicity in the aggravated robbery with which he was charged. Mr. Smith contended on appeal that the Trial Court erred in failing to instruct on the lesser included offense of robbery. An officer who chased and apprehended Mr. Smith after the robbery testified Mr. Smith was armed. There was no evidence to the contrary. We held there was no rational basis for the giving of the lesser included offense instruction. Again, the holding was based on the State’s evidence rather than on the fact that Mr. Smith denied participation in the offense.
In Roberts v. State, 281 Ark. 218, 663 S.W.2d 180 (1984), Mr. Roberts was charged with burglary and theft of property. His fingerprint was found on a window which had been pried at the residence where a theft had occurred, and he was found in possession of one of a matched pair of earrings, the other one of which was left at the residence. Mr. Roberts presented three alibi witnesses and then sought an instruction on the lesser included offense of theft by receiving. We noted that “Since appellant’s position was that he was innocent of any theft, his request for the lesser-included offense of theft by receiving was not rational. Under the facts of this case, we conclude the trial court was not obligated to charge the jury with respect to the lesser offense.” While that statement supports the majority opinion in the case now before us, it must again be noted that nothing in the State’s evidence suggested anything other than burglary. Discussing the Roberts case in the Doby opinion we said “According to the appellant [Roberts], he had received the allegedly stolen goods several years before they were stolen.” The opinion in the Roberts case does not, however, refer to any such testimony. Reading that opinion, one simply cannot say there was any evidence presented by the State or by Mr. Roberts from which jurors could rationally conclude theft by receiving had occurred. While I disagree with the statement connecting the alibi evidence with the necessity for the lesser included offense instruction, it is clear to me that the holding of the case, limited to its facts, is that there is no way the jurors could have concluded on the basis of the State’s evidence that anything other than burglary had occurred.
In Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993), Mr. Mitchell was charged with capital felony murder. He admitted hitting the victim with a tire tool and absconding with the victim’s truck. He was convicted of first degree murder. On appeal he contended the evidence was insufficient to support the conviction and the evidence had not warranted an instruction on capital felony murder. We held the evidence was sufficient to sustain the first degree murder conviction and that it had not been error to instruct on capital felony murder. There was nothing in the case about alibi, and I am at a loss to say why the case is cited in the majority opinion.
While we went too far in what we said in the Roberts case, that has not created the problem in view of the fact that the holding there was not far reaching. The mistake was made in the Doby case and in Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986), which was decided the same day. It came about because of reasoning based on the Roberts case. “According to the appellant [Roberts], he had received the allegedly stolen goods several years before they were stolen. The appellant’s [Roberts’s] own testimony was inconsistent with such a charge. So it made no sense to confuse the jury.”
We should not have made that connection. The State has the burden of proving each element of a criminal offense beyond a reasonable doubt. In a situation where (1) there is separable evidence about those elements, and (2) there is evidence from which a jury could conclude, based on credibility of the witnesses or conflicts in their testimony, that not all of the elements have been proven beyond a reasonable doubt, and (3) the failure with respect to one of the elements could result in conviction of a lesser included offense, there should be an instruction on the lesser included offense. A plea of not guilty, evidence of denial by the defendant, or alibi evidence presented by the defendant has nothing to do with the strength or weakness of the State’s evidence.
In United States v. Thornton, 746 F.2d 39 (D.C. Cir. 1984), the Court of Appeals pointed out that the appellant’s argument that a lesser included offense instruction should have been given had overlooked the point that his exculpatory defense gave no basis for it and there must be a rational basis for the instruction. The Court of Appeals then said:
At the same time, we recognize that even where the defendant presents a totally exculpatory defense, the instruction should nonetheless be given if the evidence presented by the prosecution provides a rational basis for the jury’s finding the defendant guilty of a lesser included offense. [United States v.] Sinclair, 444 F.2d 888 (D.C. Cir. 1971) [emphasis in original].
See also United States v. Payne, 805 F.2d 1062 (D.C. Cir. 1986); United States v. Canova, 638 F.Supp. 1055 (S.D.N.Y. 1986).
As we said in Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), “. . .the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. .. .” The State understandably wants a jury to have the prerogative of believing its witnesses in part or accepting part of its evidence if it fails to prove all it alleges. Obviously, in determining the guilt or innocence of an accused the jury must look first to the State’s proof, for the State has the burden of proving guilt beyond a reasonable doubt. If the jury believes a part of the State’s proof, enough to sustain a lesser included offense but not enough to sustain the original charge, should the jury be limited to choices of conviction on the original charge or acquittal just because the defendant has denied his or her guilt or offered an alibi defense? Limiting the jury to such a choice would result in a clearly untruthful decision for no good reason. If the State charges, for example, capital felony murder and the defendant testifies he was not at the scene of the crime when it was committed, should the trial court refuse an instruction on a lesser degree of homicide if the State presents no evidence of any underlying felony? I suggest the refusal to instruct on the lesser included offense in that instance would be preposterous; yet that is just the sort of situation to which the majority opinion could lead.
As we have held today in the Jones case, if the State’s evidence is such that a jury could believe part of it and thus render a conviction of a lesser included offense, then there is a rational basis for instructing on such an offense. There is no less a rational basis for the instruction if the defense is a denial of either the defendant’s participation in the offense or its occurrence. The defense is no less entitled to the instruction than the State, and I take it we should favor truthful verdicts rather than the untruthful ones which will surely result in some cases from the playing of a legalistic game.
I respectfully dissent.
Brown and Roaf, JJ., join in this dissent.