II. Statutory Interpretation
Had the facts and evidence supported it, the majority would be correct that a defendant is generally entitled to assert justification as a defense and receive an instruction. But I would reach my conclusion differently than the majority.
Generally, "in a prosecution for an offense, justification . . . is a defense." Ark. Code Ann. § 5-2-602. As a limit on this general proposition, Arkansas Code Annotated section 5-2-614 provides that
[w]hen a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.
Ark. Code Ann. § 5-2-614(a).
The argument before the court hinges on the relationship between the two clauses of section 5-2-614(a), both of which must be given meaning. The plain language of the antecedent clause requires finding that "the person is reckless or negligent" before the second clause can take effect. Id. (emphasis added). To interpret it any other way would require a finding that the defendant acted recklessly or negligently before that issue was submitted to the jury. Thus, a defendant is entitled to argue justification until the jury finds him reckless or negligent. Only then is the defendant barred from using justification for acquittal. Under this reading of the statute, the prosecution retains the burden of proof, the defendant retains the presumption of innocence, and the words of the statute are given their plain meaning and full effect.
For these reasons, I dissent.
KEMP, C.J., joins in this dissent.
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