dissenting. Evote Humphrey shot an unarmed man to death on a city street, shooting him fourteen times in the head, neck, chest, abdomen, and buttocks, and the majority believes he is entitled to a jury instruction on justification as a defense. Humphrey was charged with and convicted of the capital murder of Tyrone Cook and sentenced by a jury to life imprisonment without parole.
Most importantly, the forensic pathology and trace evidence dictate against a justification instruction. Dr. Frank Peretti, the forensic pathologist and medical examiner for the State of Arkansas, testified that Cook sustained a total of fourteen gunshot wounds: seven right-side head wounds; two right-side neck wounds; two chest wounds; one abdominal wound involving fatty tissue; one left-side abdominal wound; and one right buttock wound. Any one of the seven head wounds was fatal. Any one of the two neck wounds was fatal. One of the two chest wounds was fatal. One of the two abdominal wounds was fatal. Moreover, all the wounds, even the superficial wounds, contributed to Cook’s death by blood loss. In all, standing alone, eleven of the fourteen gunshot wounds would have been fatal.
Gary Lawrence, an employee of the State Crime Lab Trace Evidence Section, offers the most compelling testimony mandating against the justification instruction. Mr. Lawrence testified that according to the extraordinarily high levels of gunshot residue on the victim’s hands and the fact that the residues were more consistent with Cook’s hands being in front of the muzzle end of a firearm — Cook’s hands had to have been exposed to have that level of residue. Consequently, the physical evidence demonstrates that Humphrey could see Cook’s hands directly in front of him and not, as Humphrey suggests, reaching for a gun. Recall that Cook was unarmed at the time of the shooting but that Humphrey alleges that Cook was continuing to come at him while reaching for something. The forensic evidence suggests a conclusion to the contrary, that Cook’s hands were exposed and visible to Humphrey, negating the basis for a self-defense instruction.
The majority also places great weight on the prior history of Humphrey and his victim, specifically on an incident where Cook shot at Humphrey and Humphrey fled to safety. Again, on the day of the killing, the majority suggests that these two men’s paths somehow unavoidably crossed and resulted in Cook’s death. However, this meeting was not inevitable. In fact, the victim was walking on the opposite side of the city street with “Bo” Mack, while Humphrey walked with friends on the other side of the street. If the prior incident proves anything, it demonstrates Humphrey’s knowledge of the necessity of retreat.
Moreover, during a second encounter with Cook, Cook allegedly drove past Humphrey on the street, stopped his car, and Humphrey believed that Cook was going to retrieve a weapon from his trunk. Humphrey ran away in retreat. I fail to see what distinguishes the fatal incident on April 21, 1995, from either of these prior encounters where Humphrey retreated to safety. In fact, with respect to the first incident, Cook actually had a gun whereas on the day of the fatal shooting Cook was unarmed.
Although Ark. Code Ann. § 5-2-607 (a) (3) would permit Humphrey to use deadly physical force upon Cook if Humphrey reasonably believed that Cook was about to use unlawful deadly physical force, Humphrey was prohibited, pursuant to section 607(b), from using deadly physical force in self-defense if he knew that he could avoid the necessity of using that force with complete safety. Humphrey’s prior encounters with Cook only strengthen Humphrey’s awareness of the advisability and duty to retreat from another meeting.
Additionally, Humphrey was armed in anticipation of a possible conflict, and he voluntarily crossed paths with Cook, rejecting the alternative of retreating from the fatal encounter. See Burton v. State, 254 Ark. 673, 495 S.W.2d 841 (1973). Even after the two men met on the street, Humphrey’s duty to retreat did not diminish. As the majority concedes, Humphrey was bound to do everything in his power, consistent with his safety, to avoid danger and avert the' necessity of killing. Moreover, to assert a claim of self-defense, Humphrey must prove that (1) Cook was the aggressor, and (2) Humphrey used all reasonable means within his power and consistent with his safety to avoid the killing, including retreat, where retreat can safely be effected. Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986). Further, there must be some rational basis for submitting a justification instruction to the jury. Where the use of force was avoidable with complete safety, Humphrey is not entitled to a iustification instruction. See id. at 296-97.
Moreover, the eyewitness testimony of Monroe Moore confirms that Humphrey kept shooting at Cook, even after Cook was on the ground. Humphrey shot Cook fourteen times, and no witnesses testified that they saw Cook with a gun during the shooting, and police investigation revealed no such gun. Although the medical examiner could not conclude which gunshot wound Cook first received, eyewitness testimony indicates that it may have been an abdominal wound. Monroe Moore testified that after the first shot, Cook fell to the ground, holding his stomach. In any event, Humphrey’s duty to retreat endured, even after he fired the first gunshot into Cook. Rather than retreat, Humphrey fired again, again, again, again, again, again, again, again, again, again, again, again, and again. The trial court correctly held that there was no rational basis in evidence supporting a justification instruction, and I respectfully dissent.
Glaze and Thornton, JJ., join this dissent.