Schnarr v. State/Dissent Wynne
ROBIN F. WYNNE, Justice, dissenting. I disagree with the majority's decision to reverse and remand for a new trial based on the circuit court's denial of Schnarr's request to argue that he acted in self-defense (justification) and instruct the jury on justification. Therefore, I respectfully dissent.
First, the circuit court followed precedent in ruling under Ark. Code Ann. § 5-2614(a) that a justification defense was unavailable in this prosecution for reckless manslaughter. In Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), this court held that the trial court committed reversible error when it refused to give the jury a manslaughter instruction despite evidence from which "the jury could have believed that Mr. Harshaw acted recklessly—too hastily and without due care—in concluding that deadly force was necessary to protect himself." Id. at 135, 39 S.W.3d at 758. In its analysis, this court quoted section 5-2-614(a), and then wrote
[i]n other words, if a person is reckless in forming the belief that the use of force is necessary, he may still be subject to prosecution for an offense that requires a mens rea of recklessness.1
1The Arkansas Criminal Code is one of only a few modern codes that follow section 3.09(2) of the Model Penal Code in this respect and treat homicide in imperfect self-defense as a problem of "reckless manslaughter, or of negligent homicide, depending upon whether the defendant's belief as to the necessity of the homicide was reckless or negligent." Wayne R. LaFave et al., Substantive Criminal Law § 7.11, at 272 n. 6 (1986) (emphasis added). See also the Original Commentary to Ark. Code Ann. § 5-2-614, formerly Ark. Stat. Ann. § 41–514 (Repl.1977), which states:
Section 41–514 applies to situations in which force is recklessly or negligently employed. Under such circumstances the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct.
In so providing the Code is aligned with the stance of the Model Penal Code Reporter "[W]e do not believe a person ought to be convicted for a crime of intention where he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to convict for negligence. Where the crime otherwise requires greater culpability for a conviction, it is neither fair nor logical to convict when there is only negligence as to the circumstances that would establish a justification." M.P.C. § 3.09, Comment at 78 (Tent. Draft No. 8, 1958).
For example, assume a conductor recklessly misconstrues conduct by a passenger on a carrier as a breach of the peace, applies physical force, and injures the passenger. Section 41–514(1) would protect the conductor by permitting him to interpose a defense based on § 41–505(3) to a prosecution for purposeful conduct under § 41–1602 (Battery in the second degree). However, because the conductor acted recklessly in assessing the need to use force, § 41–514(1) withdraws justification as a defense to a prosecution under § 41–1603(b) (Battery in the third degree), since proof of recklessness suffices for conviction of the latter offense.
Id. at 134 n. 1, 39 S.W.3d at 756 n. 1. Thus, this court strongly suggested that section 5-2-614 withdraws justification as a defense to a prosecution for an offense for which the culpable mental state is recklessness or negligence. Furthermore, the court of appeals has specifically stated that section 5-2-614 "provides that justification is not available as a defense to an offense for which recklessness suffices to establish culpability." Merritt v. State, 82 Ark. App. 351, 354–55, 107 S.W.3d 894, 897 (2003) (holding that the appellant was not entitled to justification instructions with regard to first- and second-degree assault, which are committed if the accused acts recklessly, and the trial court did not err in refusing an instruction that would have made justification a defense to those offenses); see also Albretsen v. State, 2015 Ark. App. 33, at 5, 454 S.W.3d 232, 236 ("Arkansas Code Annotated section 5-2-614(a) (Repl. 2013) provides that justification is not available as a defense to an offense for which recklessness or negligence suffices to establish culpability."). "The General Assembly is presumed to be familiar with the appellate courts' interpretation of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, the appellate courts' interpretations of the statutes remain the law." Miller v. Enders, 2013 Ark. 23, at 12–13, 425 S.W.3d 723, 730 (citing McCutchen v. City of Fort Smith, 2012 Ark. 452, at 19, 425 S.W.3d 671, 683). Today, the majority has changed the law in Arkansas.
Next, I must point out that the majority's interpretation of section 5-2-614 is untenable. Under the majority’s reading of the statute, the jury must determine whether appellant was reckless or negligent in forming the belief that deadly force was necessary, and if it determines that he was, the defense of justification is then unavailable. However, this interpretation renders the statute meaningless because the justification and reckless-manslaughter definitions already so provide. Under Ark. Code Ann. § 5-2-607(a), titled "Use of deadly physical force in defense of a person," as relevant in this case, "[a] person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is (1) [c]ommitting or about to commit a felony involving force or violence [or] (2) [u]sing or about to use unlawful deadly physical force." (Emphasis added.) The reckless formulation of manslaughter requires the State to prove that the defendant recklessly caused the death of another person. See Ark. Code Ann. § 5-10-104(a)(3). The Arkansas Criminal Code defines "recklessly" as follows:
A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation[.]
Ark. Code Ann. § 5-2-202(3). Thus, the only purpose of section 5-2-614 is to provide that justification is not available when the culpable mental state is reckless or negligent.
Here, appellant testified that he was scared and felt that what he did was reasonable under the circumstances. The jury determined that appellant's actions were reckless, which is incompatible with reasonableness. There was no error in the circuit court following precedent and denying appellant's proffered instructions based on section 5-2-614, and I would affirm on this point.
KEMP, C.J., joins.