LATAVIOUS D. JOHNSON APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE LEE COUNTY CIRCUIT COURT [NO. 39CR-2012-32] HONORABLE L.T. SIMES II, JUDGE
Jeff Rosenzweig; and Daggett, Donovan and Perry, by: Joe R. Perry, for appellant.
Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., Brooke Jackson, Ass't Att'y Gen., and David R. Raupp, Senior Ass't Att'y Gen., for appellee.
PAUL E. DANIELSON, Associate Justice
Appellant Latavious D. Johnson was convicted by a Lee County jury of the capital murder of Barbara A. Ester and sentenced to death. Because the death penalty was imposed in this case, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2015). Johnson raises the following points on appeal: (1) the circuit court erred in denying a jury instruction on the extreme-emotional-disturbance formulation of manslaughter pursuant to Arkansas Code Annotated section 5-10-104(a)(1) (Repl. 2013); and (2) the circuit court erred in refusing to grant access to certain Arkansas Department of Correction ("ADC") records. Johnson also discusses other objections made at trial, although he does not ask for reversal on these points. We have reviewed the record and Johnson's arguments on appeal, find no error, and affirm.
On January 20, 2012, Barbara Ester, a correctional officer at the East Arkansas Regional Unit, approached Johnson, an inmate, about wearing contraband shoes. Johnson told Officer Ester that the shoes were not contraband. Officer Ester left and came back with Lieutenant Steven Lane. The officers attempted to confiscate the shoes. Johnson then stabbed Officer Ester with a "shank" three times. Officer Ester was taken to the hospital where she died.
At the time of the stabbing, Johnson was serving a life sentence for murder in the first degree. Johnson was charged with the capital murder of Officer Ester pursuant to Arkansas Code Annotated section 5-10-101. During his trial in the Lee County Circuit Court, Johnson testified on his own behalf. During his testimony, he admitted stabbing Officer Ester but denied any intent to kill her. The jury convicted Johnson of capital murder and sentenced him to death. Because he was sentenced to death, the circuit court ordered the circuit clerk to file a notice of appeal on Johnson's behalf pursuant to Arkansas Rule of Appellate Procedure–Criminal 10(a).
I. Manslaughter Instruction
For his first point on appeal, Johnson argues that the circuit court erred in denying an instruction on the extreme-emotional-disturbance formulation of manslaughter pursuant to Arkansas Code Annotated section 5-10-104(a)(1), which states in pertinent part:
(a) A person commits manslaughter if:
(1)(A) The person causes the death of another person under circumstances that would be murder, except that he or she causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse.
(B) The reasonableness of the excuse is determined from the viewpoint of a person in the actor's situation under the circumstances as the actor believed them to be.
Specifically, Johnson argues that the instruction on manslaughter should have been allowed because there was a rational basis for a finding of extreme emotional disturbance for which he had a reasonable excuse to stab Officer Ester.
To support this argument, Johnson alleges that the actions of the ADC personnel and the living conditions at the facility provide sufficient evidence of a provocation that constituted a reasonable excuse for his actions. He relies on the following assertions: (1) the prison environment was very difficult, in particular "tensions inherent in hundreds of people involuntarily crammed together and deprived of all human autonomy are extreme"; (2) his prized possession was a pair of shoes that was falsely alleged to be contraband; and (3) inmates are faced with prison guards with violent and arrogant attitudes.
A party is entitled to a jury instruction when it is a correct statement of law and when there is some basis in the evidence to support giving the instruction. Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643 (citing Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006)). A trial court is required to give a jury instruction if there is some evidence to support it. Id. In determining if the circuit court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Id. (citing Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70; Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002)). It is reversible error to refuse to instruct on a lesser-included offense when there is even the slightest evidence to support the instruction. Fincham (citing Boyle v. State, 363 Ark. 356, 214 S.W.3d 250 (2005); Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005)). This court will not reverse a trial court's ruling on the submission of a lesser-included jury instruction absent an abuse of discretion. Pollard v. State, 2009 Ark. 434, 336 S.W.3d 866 (citing Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009)). We will affirm a trial court's decision to not give a lesser-included-offense instruction if there is not a rational basis for giving the instruction. Id.; see also Ark. Code Ann. § 5-1-110.
Manslaughter adds another element to first-degree and second-degree murder-the requirement that the defendant is acting under extreme emotional disturbance. Fincham, 2013 Ark. 204, 427 S.W.3d 643 (citing Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992)). A defendant is not entitled to an instruction on extreme-emotional-disturbance manslaughter unless there is a factual basis showing that the defendant killed the victim "in the moment following 'provocation in the form of physical fighting, a threat, or a brandished weapon.'" Banks ...