NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION IV

JIMMY DALE MORGAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1265

October 31, 2001

APPEAL FROM THE PIKE COUNTY CIRCUIT COURT

CR-98-55

HON. CHARLES A. YEARGAN, JUDGE

AFFIRMED

Appellant received a sentence of thirty years in the Arkansas Department of Correction after a jury found him guilty of second-degree murder. For his sole issue on appeal, appellant argues that the trial court erred in refusing to instruct the jury on the use of expert testimony in assessing whether appellant had the ability to form the culpable mental state required for the commission of any of the degrees of homicide on which the jury was instructed. We affirm.

On July 29, 1998, the State filed an information charging appellant with first-degree murder in violation of Ark. Code Ann. § 5-10-102 (Repl. 1997). The information alleged that with the purpose of causing the death of another person, appellant caused the death of Carolyn Cowart.

At trial, the testimony revealed that Ms. Cowart, who was appellant's girlfriend, was playing in a band at the Malvern Country Club on the evening of July 18, 1998. William Ballew, who was Ms. Cowart's brother, Ballew's girlfriend, and appellant went to watch her play. There was testimony that appellant and Ms. Cowart were arguing at the country club over his drinking. They returned from the club to Ms. Cowart's house at approximately 2:30 a.m. Upon returning, Ballewand appellant unloaded the musical equipment and put it in an outside shop. Ballew was going inside and appellant was locking up the shop. As Ballew entered the house, Ms. Cowart was exiting and told her brother that appellant was leaving. Ballew asked her if she needed his help and she said no. He then went into the second bedroom with his girlfriend. Shortly thereafter, Ballew heard glass break and his sister scream, and then four gunshots. Ms. Cowart's brother and his girlfriend went to the back door, and saw appellant standing outside with a gun. He asked where his sister was and appellant responded, "the bitch is running." He also told Ballew he would blow his head off if he came outside. Ballew went to his truck, called 911, and retrieved a gun from his truck. He and his girlfriend then went to find Ms. Cowart. They found her lying by the shop; she was already dead.

Appellant was found around 8:30 a.m. walking along the highway. After being advised of his rights, he made a statement to Officer Todd Dailey of the Arkansas State Police indicating that Ms. Cowart insisted that he leave her house, so he left and walked around until the time he was picked up by the police. He did not tell Officer Dailey that he blacked out or could not remember what happened.

Appellant raised the defense at trial that due to a mental disease or defect, he did not have the culpable mental state required for the commission of first-degree murder. He had an expert, Dr. Mary Wetherby, testify in his defense. She testified that appellant sustained a head injury when he was four years old, resulting in a mental defect, which is worsened by his use of alcohol. Based on these facts, she concluded that he was not able to appreciate the criminality of his conduct at the time of the offense.

On appeal, appellant contends that the trial court erred in refusing to instruct the jury on the use of expert testimony in assessing whether appellant had the ability to form the culpable mentalstate required for the commission of any of the degrees of homicide on which the jury was instructed.

Prior to trial, appellant filed a motion to proffer jury instructions requesting the court to charge the jury with the following two non-AMCI jury instructions:

Defendant's Requested Instruction No. 1

You are instructed that under Arkansas law evidence of mental disease or defect maybe [sic] considered by you in determining whether or not Jimmy Morgan had the culpable mental state or criminal intent required by law for the commission of an offense. If, after hearing the evidence, you have a reasonable doubt as to whether or not the Defendant had the criminal intent necessary for the commission of an offense, you must acquit the Defendant of that offense. You may consider whether the Defendant had the criminal intent necessary for any lesser degree of the offense charged. Thus, if you find Jimmy Morgan did not have the criminal intent, or the capability of forming the criminal intent required for First Degree Murder, you may still consider whether he had the criminal intent required under the law, for commission of the offense of Second Degree Murder or Manslaughter as you have been instructed by the Court.

Defendant's Requested Instruction No. 2

You are instructed that under Arkansas law voluntary intoxication is not a defense to any offense. You are further instructed, however, that you may consider all the circumstances surrounding an offense in considering the guilt or degree of guilt of Jimmy Morgan. In this case, you've heard evidence that Jimmy Morgan suffers from a mental defect which may be aggravated by consumption of alcoholic beverages. While the law does not provide that intoxication affords Jimmy Morgan a defense, you may nevertheless consider the effect of Jimmy Morgan's consumption of alcoholic beverages on a pre-existing defect so far as those circumstances relate to his ability to form the criminal intent required by law.

The trial court did not act on the motions prior to trial, but appellant asked the court during the trial to instruct the jury on both one and two. Appellant stated that Ark. Code Ann. § 5-2-203 (Repl. 1997) provides that "[e]vidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for the commission of the offense charged." Based on this statute, appellant reasoned that the jury should be able to consider the expert testimony of mental disease or defect in determining whether appellant had therequisite mental state. The trial court denied the motion. Appellant's appeal is solely based on this ruling.

As he did below, appellant argues that the trial court erred in refusing to instruct the jury on the use of the expert testimony of Dr. Mary Wetherby in assessing whether appellant had the ability to form the culpable mental state required for the commission of any of the instructed degrees of homicide. Appellant argues that Ark. Code Ann. § 5-2-203 authorizes his proffered instructions. Appellant further contends that without an appropriate instruction, the jury is unlikely to be aware of the significance of this evidence in determining whether appellant committed the offense.

Appellant recognizes that in Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), the supreme court rejected the argument that an accused is entitled to a jury instruction on the proper role of expert testimony on mental impairment in determining whether the State has met its burden of proof. In Robinson, the appellant, based on Ark. Stat. Ann. § 41-602 (now codified at Ark. Code Ann. § 5-2-203), argued that he was entitled to a specific instruction informing the jury that he had placed in issue his mental capacity to form the kind of mental state necessary to establish the commission of the alleged offense. The supreme court concluded that the statute did not require such an instruction. The court stated:

The statute simply clarifies any issue concerning the admissibility of mental disease evidence when it is less than persuasive in connection with an affirmative defense of insanity. Moreover, the essence of appellant's proffered instruction is effectively given when the court instructs the jury on the burden of the state to prove beyond a reasonable doubt each element of the offense, especially when such instruction is accompanied by an instruction on lesser included offenses.

Id. at 95, 598 S.W.2d at 425. Acknowledging that Robinson is controlling, appellant states that he is only raising the issue to preserve it for review by the Arkansas Supreme Court.

In response to the appellant's argument, the State contends that the trial court did not err inrefusing the proffered instructions based on Robinson and Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). In Riggs, the supreme court recently declined to overrule Robinson. Riggs argued that the jury instruction given on the affirmative defense of mental disease or defect was misleading because it instructed the jury not to consider the evidence of her mental defect or disease until after it determines that the State has met its burden of proving criminal intent beyond a reasonable doubt. She instead contended that evidence of mental disease or defect should be considered by the jury at the time it considers criminal intent as an element of the crime of murder. The court declined to overrule Robinson.

We agree that Robinson and Riggs are controlling, and therefore we affirm.

Affirmed.

Pittman and Robbins, JJ., agree.