Martin v. State

Robert H. Dudley, Justice.

Appellant was convicted of first degree murder and first degree battery. We affirm the murder conviction but reverse the battery conviction.

On the afternoon of the murder, appellant, his girlfriend, her mother and brother, and a man named Lonnie drove from North Little Rock to Sweet Home to pick up a voucher for milk. Upon their arrival in Sweet Home, appellant asked to get out of the car at the end of Neely Road. As he was getting out he asked Lonnie to pick him up in ten to fifteen minutes on the way back to North Little Rock. Mike Callahan, who was murdered by appellant, was among several persons who were gathered on Neely Road at that time. Those who witnessed the murder testified, in general, that appellant and victim Callahan went behind a vacant building for a short period of time, and when they came back around to the front yard, they were arguing. They were still arguing when Lonnie returned to pick up appellant. Appellant walked to Lonnie’s car, which was parked in the street, took a gun from under the seat, went back to the victim in the yard, and twice shot him.

Appellant’s version of the occurrence was that in the weeks and days preceding the shooting, the victim had placed a bomb in his car, had pointed a gun at him, had shot at him, and had threatened to kill him. Appellant knew that the victim sometimes carried a gun. On the day of the shooting, the two of them were arguing when the victim picked up a brick in his right hand, drew back, and said, “I will kill you.” His left hand was in his clothes as if he had a gun. At that time, Lonnie returned with the car and drove to a point in the road about ten yards away. Appellant walked away from the victim, went to the car, reached under the back seat, got a pistol, walked back to the victim, who still had the brick in his right hand with his left hand in his clothes, and they exchanged words. “[H]e raised the brick in the air like he was going to hit me, so I pulled the pistol and I shot below his waist line.” Appellant testified that the second shot into the victim was accidental. The shooting of Mike Callahan resulted in the murder charge.

The appellant did not testify that the victim followed him to the car when he went to get his pistol, nor did he testify that the victim made any additional threats while appellant was at the car.

All of the witnesses agree that after Callahan had been murdered appellant started walking away, and, when he had gone about twenty yards, Dovie Woods aimed a pistol at his back. Someone warned appellant, who then turned around and shot Ms. Woods. She testified that if she had more time she would have shot appellant. The shooting of Dovie Woods resulted in the battery charge.

Appellant requested justification, or self-defense, instructions on both the murder charge and the battery charge. The trial court refused to give the instructions for either charge.

The trial court made the correct ruling in the murder case. In that case all of the evidence, including appellant’s testimony, shows that appellant did not use all reasonable means to avoid the killing. Once he returned to the car, he had reached a port of safety and could have gone home and avoided killing Callahan. Yet, it is undisputed that after reaching safety, he went back to the confrontation with a loaded pistol and killed Callahan. Ark. Stat. Ann. § 41-507 (Repl. 1977) provides that one “may not use deadly physical force in self defense if he knows that he can avoid the necessity of using that force with complete safety ... by retreating. . . .” The commentary provides:

“[o]ne who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing.” [citation omitted] Under most circumstances “reasonable means” includes retreat where retreat can safely be effected.

The appellant acknowledges the foregoing statute and commentary, but argues that it was for the jury, not the court, to decide whether the appellant could have safely avoided killing Callahan. From that, appellant argues the justification instruction should have been given. We find no merit in the argument. There must be some rational basis for submitting an instruction to the jury. Hughes v. State, 260 Ark. 399-A, 540 S.W.2d 592 (1976). Here, the undisputed proof was that appellant walked away from Callahan, went to the waiting car, got his loaded pistol from under the car seat, and then walked back to the place of confrontation and killed Callahan. He could have avoided the use of force with complete safety. Therefore, he was not entitled to the instruction on justification.

However, justification was an available defense in the battery case. In that case the defendant was walking away from the murder when Dovie Woods aimed a pistol at his back. She admitted she would have shot him. A bystander warned appellant that he was about to be shot when he turned around and shot Woods. There was substantial evidence that the requirements of Ark. Stat. Ann. § 41-507 (Repl. 1977), the justification statute, were met because appellant could not have retreated with complete safety and was assaulted in a manner sufficient to cause a realistic fear for his life.

The conviction for first degree battery is reversed while the conviction for first degree murder is affirmed. The remaining question is, “What mandate should be issued?” The offenses charged, first degree murder and first degree battery, are separate and distinct offenses, defined by separate and distinct statutes, and each charge required separate and distinct evidence for conviction. When a judgment in a criminal case is correct as to one count, but erroneous as to another, as in this case, we have the power to sever the judgment, affirm the count on which the appellant was properly convicted, and reverse and grant a new trial as to the other. Such a procedure is used by the Eighth Circuit Court of Appeals, United States v. Greene, 591 F.2d 471 (8th Cir. 1979), by our Court of Appeals, Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983), and by other states, see, e.g., People v. Schnebley, 27 A.D.2d 639, 275 N.Y.S.2d 763 (1966). The fact that charges must be joined at the time of filing does not mean that they cannot be severed, either before trial or upon appeal.

We have examined the two findings of guilt to determine if there is any evidence to indicate that the jury’s decision to fix appellant’s sentence at 5 years on the battery count could have affected the 30 year sentence on the murder count. We find no such evidence. Thus, a remand on only the battery count will not violate the concurrent sentences rule. See Lee v. Lockhart, 754 F.2d 277 (8th Cir. 1985).

The conviction for first degree murder is affirmed; the conviction for first degree battery is reversed and remanded.

George Rose Smith, Hickman, and Hays, JJ., dissent.