FROM THE POPE C O U NT Y C IRC U IT C O U R T [NO.
58CR-16-429] HONORABLE BILL PEARSON, JUDGE.
& Co., PLLC, by: Tim J. Cullen, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
D. VAUGHT, JUDGE.
Gray was convicted by a Pope County Circuit Court jury of
murder in the first degree. He was sentenced to forty
years' imprisonment plus a fifteen-year-imprisonment
enhancement because the jury also found that he employed a
firearm as a means of committing the murder. On appeal, Gray
argues that the Pope County Circuit Court abused its
discretion in refusing to include language in his
justification jury instruction that he was not required to
retreat from the curtilage of his dwelling. Because this
issue is not preserved for appeal, we affirm.
25, 2016, law-enforcement officers were called to Gray's
home located at 213 James Circle, in Russellville, Arkansas.
Upon arriving at the scene, officers found Rachel Michelle
Chisum dead in her locked and running vehicle located across
the street from Gray's home. Officers also found a knife
and a screwdriver in Chisum's vehicle. Officers found
Gray standing outside his home. When asked what happened,
Gray stated that Chisum "was busting up my car and I
shot her." An officer asked Gray where the firearm was,
and Gray pointed to a gun lying on his front patio. Officers
retrieved the firearm and arrested Gray. He was charged with
trial, testimony revealed that Gray and Chisum had been
romantically involved but had broken up. Evidence was
presented that prior to May 25, 2016, Gray had called the
police to his home on two occasions regarding Chisum's
harassing behavior. The first occasion was on December 8,
2015, when Gray called the police reporting that Chisum had
been knocking on the window of his home, she was parked
behind his car blocking him in, and she would not leave.
Officers were called to Gray's home a second time on May
24, 2016, the day before the shooting. On this occasion,
Chisum had been driving by Gray's home threatening him,
and she used an object to beat Gray's vehicle.
25, 2016, Gray testified that he was asleep on the couch when
he awoke to Chisum coming toward him with a knife and a
screwdriver attempting to stab him in the neck. He said that
he grabbed her wrists and kicked her off him. According to
Gray, Chisum ran out the front door and into Gray's
vehicle to retrieve his gun. Gray testified that he grabbed
Chisum by the waist, pulled her out of the car, grabbed the
gun, and placed it in his waistband. Gray stated that Chisum
ran to her car, "thr[ew] it in reverse and whip[ped] it
and clip[ped] me" with the front end, knocking him to
the ground and causing the gun to fall out of his waistband.
He said that Chisum revved her car in neutral, and he thought
she was going to run over him, so he "got up
shooting." He said that she "whipped" her car
around and then it rolled away, eventually stopping when it
struck a wire fence across the street.
Joe Paterak of the Russellville Police Department testified
that he found one bullet hole above the passenger-side door
handle and two bullet holes in the driver's side window
of Chisum's vehicle. Lieutenant Glenn Daniel of the
Russellville Police Department stated that he discovered two
bullet holes in the windshield of Chisum's vehicle.
Russellville Police Department Detective Quinn Jones
testified, and photographs confirmed, that four spent shell
casings and one live round were found in the parking lot,
sidewalk, and grass near Gray's neighbor's home at
211 James Circle. An associate medical examiner testified
that Chisum died from a bullet that entered and exited her
left arm, entered her chest cavity, and traveled through her
lungs and heart.
conclusion of the evidence, the jury found Gray guilty of
first-degree murder. Gray's sole point on appeal is that
the circuit court abused its discretion in refusing to
instruct the jury that he had no duty to retreat from the
curtilage of his dwelling. We cannot reach the merits of his
argument because it is not preserved for appeal.
trial, after both parties rested, the circuit court stated:
Before we get our jury in here, I want to announce that I
have read this Moody [v. State, 2014
Ark.App. 538, 44 S.W.3d 389] case and I do agree with the
State. I'm going to submit the instruction on
justification with the language that just, well, it
eliminates the curtilage. Now we still define curtilage, what
it is in the definition parts of it, but so I'm clear . .
. basically it will read, "A person is not justified in
using deadly force if he knows that the use of deadly force
can be avoided with complete safety by retreating."
I mean, you decide these, based on that case, you decide it
on the facts of each case. This incident, homicide took place
out in the parking lot of an apartment duplex-type of
facility. It was a common area and by analogy, fourth
amendment jurisprudence, there's no expectation of
privacy. It's common to everyone - - the ...