Page:Schnarr v. State, 2018 Ark. 333.pdf/7

 39 S.W.3d 753, 754–58 (2001). However, those cases are not on point.

First, in Cobb, Cobb was charged with capital murder and asserted that the circuit court erred when it denied Cobb’s request for a manslaughter instruction. We affirmed and explained that where Cobb "admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the 'recklessly causing' element found in the offense of manslaughter. Thus, there was no rational basis for giving the manslaughter instruction and the trial court did not err." Cobb, 340 Ark. at 245–46, 12 S.W.3d at 198. In that case, Cobb raised justification as a defense. In Cobb, the facts relied upon for the justification defense were inconsistent with his request for a manslaughter instruction and Cobb is limited to the facts in that case.

Second, a year later, in Harshaw, we held that the circuit court erred in not instructing the jury with Harshaw's requested manslaughter instruction. Harshaw was charged and convicted of second-degree murder; he had requested the lesser-included manslaughter instruction, which was denied. We reversed and remanded the matter:

The State directs us to our prior holding in Cobb in support of its proposition that a manslaughter instruction is never warranted where a justification defense has been asserted because, as part of that defense, the defendant admits to at least knowingly shooting the victim. The State reads our decision too broadly. Our holding in Cobb turned upon the specific facts of that case, which are distinguishable from the facts presently before us:

In this case, where appellant admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the "recklessly causing" element found in the offense of manslaughter. Thus, there was no rational basis for giving the