This opinion is uncorrected and subject to revision before publication in the printed official reporter.
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION. NO. CR-2012-1317. HONORABLE BARRY SIMS, JUDGE.
Cheryl Barnard, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.
Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., and Matthew Rowland, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of Supreme Court under the supervision of Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge. GRUBER and VAUGHT, JJ., agree.
BRANDON J. HARRISON, Judge
Bryce Allen was convicted by a Pulaski County jury of one count of second-degree murder and two counts of attempted second-degree murder. He now appeals, arguing that the jury should have been instructed on attempted reckless manslaughter as a lesser-included offense of attempted second-degree murder. We affirm.
The facts underlying this criminal case are not in dispute. On 19 March 2012, Allen's mother, Thelma, was involved in a one-vehicle accident on Highway 161 at approximately 10:30 p.m. Thelma was unhurt, but her vehicle ruptured a gas main on the side of the highway. Thelma called Allen to tell him about the accident, and he indicated that he was on his way there.
Meanwhile, Jacksonville Police Officer Daniel DiMatteo responded to the accident, along with Captain Donald Jones and Engineer Jason Bowmaster from the Jacksonville Fire Department. Both DiMatteo's police cruiser and the fire truck were parked on the side of the road with lights flashing, and all three men were wearing reflective vests as they worked on scene. Jones and Bowmaster attempted to shut off the gas but were unable to do so, and after determining that the gas company would have to be called, the three men stood in front of their vehicles on the side of the road discussing the situation.
Suddenly, DiMatteo heard the sound of an engine accelerating and turned to see an Oldsmobile van come around the emergency vehicles and turn toward the three men. The van, driven by Allen and traveling approximately twenty-three miles an hour, struck all three men. Captain Jones died at the scene; Bowmaster and DiMatteo both sustained severe injuries, including multiple broken bones. A video of the impact, captured by the dashcam in DiMatteo's police cruiser, showed that Allen did not apply the van's brakes until after he hit the men. DiMatteo also described Allen as " death gripping the steering wheel" right before the impact with a " mean scowl on his face" and stated that " because of where I was standing and the way in which that vehicle was steered and aimed towards the three of us, there's no doubt in my mind that that was done on purpose."
In an accident form filled out that night, Allen claimed that the cruise control on the van had malfunctioned, that the accelerator went to the floor, and that he lost control of the vehicle. The van was inspected by an automotive mechanic, who testified at trial that there were no problems with the accelerator or the cruise control and that the cruise control would not engage in a vehicle traveling at twenty-three miles per hour. Also at trial, it was undisputed that Allen suffered from bipolar disorder, although expert medical opinions differed on whether that was a contributing factor to the incident.
After all of the evidence had been presented, jury instructions were selected, and pertinent to this appeal, the parties agreed on attempted first-degree-murder and attempted second-degree-murder instructions regarding DiMatteo and Bowmaster. Allen also proffered an instruction for attempted manslaughter, which read as follows:
Criminal Attempt to Commit Manslaughter. A person commits the offense of Manslaughter if he recklessly causes ...