APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT. NO. CR-2011-396-1. HONORABLE BERLIN C. JONES, JUDGE.
The Claiborne Ferguson Law Firm, P.A., by: Claiborne Hambrick Ferguson, for appellant.
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
PAUL E. DANIELSON, Associate Justice. BAKER and HART, JJ., concur. KAREN R. BAKER, Justice, concurring. HART, J., joins in this concurrence.
PAUL E. DANIELSON, Associate Justice.
Appellant Kendrick Hampton appeals from the sentencing order of the Jefferson County Circuit Court reflecting his conviction for second-degree murder and his sentence to 600 months' imprisonment, with a 180-month enhancement to be served consecutively, plus a $15,000 fine. His sole assertion on appeal is that the circuit court erred when it used a modified version of then AMI Crim. 2d 301 and 302 to instruct the jury on lesser-included offenses after this court's decision in Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643. We affirm Hampton's conviction and sentence.
Because Hampton does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. See, e.g., Fritts v. State, 2013 Ark. 505, 431 S.W.3d 227. The record reflects that on August 13, 2011, officers of the Pine Bluff Police Department were called to 3605 S. Missouri Street, where they discovered a large amount of what appeared to be blood in the street. Officers learned from those at the residence that Hampton and Reshelle Smith were missing. Latonya Gonder, Hampton's mother, who was not initially present, arrived at the residence and told officers that her son had called her and told her that he had shot Smith in the chest and side. In a subsequent phone call to Gonder, Hampton told her where Smith could be found. Gonder led police to 426 Bohannon Road, where officers did not find Hampton, but discovered Smith lying face down, dead from an apparent gunshot wound, in the back seat of a red Toyota Camry. A history of domestic violence between Hampton and Smith came to light, and Hampton was subsequently arrested and charged with capital murder.
At trial, the jury was instructed on capital murder, first-degree murder, second-degree murder, and manslaughter. After its deliberations, the jury found Hampton guilty of the lesser-included offense of second-degree murder and sentenced him to a total of 780 months' imprisonment, as already noted. He now appeals.
As his sole point on appeal, Hampton argues that the circuit court erred in its instruction of the jury on manslaughter when it modified the instructions to comport with this court's decision in Fincham, in which we held that AMI Crim. 2d 301 did not accurately state the law as to the offense of extreme-emotional-disturbance manslaughter. He avers that the instructions given to the jury in his case were erroneous because this court's decision in Fincham created " a new burden for the
State, that is, to produce and prove that the murder was not manslaughter" and the instructions that were given failed to properly instruct the jury on the State's burden. (Emphasis in original.) He further contends that the circuit court's instructions failed to address a situation in which the jury might be divided on the question of manslaughter. He maintains that to comply with due process and the required unanimity of a verdict, a jury must be instructed to unanimously find that there was no extreme emotional disturbance or to return a verdict of manslaughter. Because such an instruction was not given to the jury in this case, he argues, the State was relieved of its responsibility to prove that he did not commit the crime of second-degree murder under the influence of extreme emotional disturbance.
The State responds, initially, that Hampton's argument regarding the State's burden is not preserved for this court's review because he did not specifically argue to the circuit court that the State had the burden of disproving the existence of an extreme emotional disturbance, much less that Fincham so held; it contends that Hampton merely argued that Fincham created a conflict as to who had the burden regarding an extreme emotional disturbance. It further contends that Hampton has not cited any authority to this court for his claims. As to Hampton's argument that the instructions were defective because they failed to address a situation in which the jury might be ...