Page:Schnarr v. State, 2018 Ark. 333.pdf/14

 R F. W, Justice, dissenting. I disagree with the majority's decision to reverse and remand for a new trial based on the circuit court's denial of Schnarr's request to argue that he acted in self-defense (justification) and instruct the jury on justification. Therefore, I respectfully dissent.

First, the circuit court followed precedent in ruling under Ark. Code Ann. § 5-2614(a) that a justification defense was unavailable in this prosecution for reckless manslaughter. In Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), this court held that the trial court committed reversible error when it refused to give the jury a manslaughter instruction despite evidence from which "the jury could have believed that Mr. Harshaw acted recklessly—too hastily and without due care—in concluding that deadly force was necessary to protect himself." Id. at 135, 39 S.W.3d at 758. In its analysis, this court quoted section 5-2-614(a), and then wrote

[i]n other words, if a person is reckless in forming the belief that the use of force is necessary, he may still be subject to prosecution for an offense that requires a mens rea of recklessness.1

1The Arkansas Criminal Code is one of only a few modern codes that follow section 3.09(2) of the Model Penal Code in this respect and treat homicide in imperfect self-defense as a problem of "reckless manslaughter, or of negligent homicide, depending upon whether the defendant's belief as to the necessity of the homicide was reckless or negligent." Wayne R. LaFave et al., Substantive Criminal Law § 7.11, at 272 n. 6 (1986) (emphasis added). See also the Original Commentary to Ark. Code Ann. § 5-2-614, formerly Ark. Stat. Ann. § 41–514 (Repl.1977), which states:

Section 41–514 applies to situations in which force is recklessly or negligently employed. Under such circumstances the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct.

In so providing the Code is aligned with the stance of the Model Penal Code Reporter "[W]e do not believe a person ought to be convicted for a crime of intention where he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of