Page:Schnarr v. State, 2018 Ark. 333.pdf/16

 and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, the appellate courts' interpretations of the statutes remain the law." Miller v. Enders, 2013 Ark. 23, at 12–13, 425 S.W.3d 723, 730 (citing McCutchen v. City of Fort Smith, 2012 Ark. 452, at 19, 425 S.W.3d 671, 683). Today, the majority has changed the law in Arkansas.

Next, I must point out that the majority's interpretation of section 5-2-614 is untenable. Under the majority’s reading of the statute, the jury must determine whether appellant was reckless or negligent in forming the belief that deadly force was necessary, and if it determines that he was, the defense of justification is then unavailable. However, this interpretation renders the statute meaningless because the justification and reckless-manslaughter definitions already so provide. Under Ark. Code Ann. § 5-2-607(a), titled "Use of deadly physical force in defense of a person," as relevant in this case, "[a] person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is (1) [c]ommitting or about to commit a felony involving force or violence [or] (2) [u]sing or about to use unlawful deadly physical force." (Emphasis added.) The reckless formulation of manslaughter requires the State to prove that the defendant recklessly caused the death of another person. See Ark. Code Ann. § 5-10-104(a)(3). The Arkansas Criminal Code defines "recklessly" as follows:

A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation[.]

Ark. Code Ann. § 5-2-202(3). Thus, the only purpose of section 5-2-614 is to provide that justification is not available when the culpable mental state is reckless or negligent.