Cite as 2025 Ark. App. 233 ARKANSAS COURT OF APPEALS DIVISIONS II & III No. CR-24-249
MARKEITH MITCHELL Opinion Delivered April 16, 2025
APPELLANT APPEAL FROM THE UNION COUNTY CIRCUIT COURT V. [NO. 70CR-21-150]
STATE OF ARKANSAS HONORABLE SPENCER G. APPELLEE SINGLETON, JUDGE
REVERSED AND REMANDED
WENDY SCHOLTENS WOOD, Judge
I. Introduction
In July 2023, Markeith Mitchell was tried before a Union County jury for shooting
and killing Tony Cole outside a pool hall in Strong, Arkansas. Following the presentation of
the evidence, Mitchell requested jury instructions on justification and extreme-emotional-
disturbance (EED) manslaughter, both of which the circuit court rejected. The jury convicted
Mitchell of first-degree murder with a firearm enhancement and of tampering with physical
evidence and sentenced him to seventy-eight years’ imprisonment. After the circuit court
entered a sentencing order on August 4, 2023, Mitchell filed a timely motion for a new trial,
arguing that the circuit court erred in failing to give the two jury instructions. The motion
was deemed denied, and this appeal followed. Mitchell argues that the circuit court erred in refusing to give his proffered jury
instructions on justification and EED manslaughter. He also argues that the circuit court
erred in denying his motion for new trial. Because there was some evidence presented at trial
that supports the requested instructions, we reverse and remand.
II. Standard of Review
Mitchell’s appeal challenges the circuit court’s denial of his proffered jury instructions
on justification and EED manslaughter. A party is entitled to a jury instruction when it is a
correct statement of the law and when there is a rational basis in the evidence to support
giving the instruction. Furlow v. State, 2023 Ark. App. 192, at 8, 664 S.W.3d 457, 464. An
instruction should be rejected when there is no rational basis for giving it. Id., 664 S.W.3d
at 464. We will not reverse a circuit court’s refusal to submit an instruction absent an abuse
of discretion. Calkins v. State, 2024 Ark. 23, at 8, 682 S.W.3d 681, 686. Abuse of discretion
requires more than mere error, such as that the court acted “improvidently, thoughtlessly,
or without due consideration.” Id. at 8, 682 S.W.3d at 686–87. However, the law is clear
that a party is entitled to an instruction on a defense if there is sufficient evidence to raise a
question of fact or if there is any supporting evidence for the instruction. Sharp v. State, 90
Ark. App. 81, 91, 204 S.W.3d 68, 75 (2005). Therefore, the question presented in this case
is whether there is any evidence to support the justification and EED-manslaughter
instructions. This question turns on the trial testimony.
III. Trial Testimony
2 Jalisa Williams, Cole’s cousin, testified that on January 30, 2021, she and Cole had
been driving around together before arriving at the pool hall that night. They were outside
the pool hall talking, and she noticed that “he wasn’t answering [her]” and was no longer
outside with her. At that time, she heard a commotion in the pool hall and went inside. She
saw Cole on one side of the pool table and Mitchell on the other, and they were “going back
and forth.” Williams said that Mitchell did not look angry, and no one was trying to calm
him down. Williams and another man grabbed Cole and took him outside to their vehicle.
She was trying to keep Cole outside, trying to get him to leave, and calling Cole’s mother on
the phone to come get him because “he wouldn’t’ listen to [her].” She stated that Cole ran
behind the barbershop, which was next door to the pool hall. 1
1 The pool hall is on the left side of the photos; the barbershop is to its right.
3 It was dark outside, and there was only one exterior light for the parking area. When
Mitchell walked outside, Williams saw Cole going up the steps to the pool hall, and that is
when she heard gunshots. She did not hear any arguing or see a fight before she heard the
gunshots, she did not hear Cole threaten to kill Mitchell, and she did not see Cole with a
gun. But she said Cole was angry and hostile.
Michael Rivers testified that he was in the pool hall when Cole came in. Rivers said
that Cole and Mitchell were talking—not arguing—and they were not loud. Rivers could not
hear what was said over the music. He testified that Cole did not swing at Mitchell or pull
out a weapon. Cole walked outside after a few minutes but did not appear mad. After about
five minutes, Mitchell walked outside “like there wasn’t anything going on.” Rivers then
heard gunshots and saw Mitchell standing on the porch.
Ramairio Fuller testified that he was inside the pool hall when Cole “busted through
the door” carrying a nearly empty bottle of alcohol and that he appeared intoxicated. Cole
verbally confronted Mitchell, saying, “I’m tired of you messing with my mother.” Mitchell
4 responded that he did not know what Cole was talking about. Fuller testified that people
stopped Cole from coming around the pool table toward Mitchell, but Cole continued
talking and was hitting the pool table with the bottle. Cole was telling Mitchell, “F him, F
his kids, his grandparents, his parents and he kept on going and he stated that I’m going to
kill you.” Cole did not act like he was pulling out a weapon or going to take a swing at
Mitchell. Two people escorted Cole outside. After Cole left, Mitchell waited a little while
before he went to the door and opened it, looked out, checked his surroundings, and then
exited the building. Fuller heard gunshots “not real long after that” and looked outside and
saw Mitchell holding a gun.
The medical examiner testified that Cole had seven or eight gunshot wounds. One
shot went in the palm of Cole’s hand and there was no stippling or soot, which indicated
the gun was more than three feet away from his hand. The medical examiner also testified
that marijuana was found in Cole’s system and that his blood-alcohol content was beyond
the legal limit for driving.
Daniel Evans, Mitchell’s friend, was at the pool hall the night of the shooting. He
described the hall as being twelve feet by twelve feet or twelve feet by sixteen feet and as
having only one door.
5 Evans was shooting pool when Cole kicked open the pool-hall door. Evans said that Cole
was angry, cursed at Mitchell, and said, “I told you to stop messing with my mama.” In
response, Mitchell “stepped back like what are you talking about.” Cole continued yelling
and said he was “fixing to kill” Mitchell. According to Evans, Cole went outside on his own.
Evans followed Cole outside to urinate behind the barbershop. Evans said that Cole was
walking “full speed” toward his vehicle, and Evans believed he was going to get a gun. Cole’s
6 friend had him in a “bear hug” yelling “no, don’t get that.” Cole pushed his friend down
and continued running to his vehicle and reached under the seat. Cole’s friend grabbed him
again, but Cole got loose and ran around to the back of the barbershop. Evans said to Cole,
“Whoa, whoa” and “what’s going on,” and Cole responded: “I’m done talking. I’m fixing to
kill him.”
Evans testified that Cole ran past him and sneaked up to where Mitchell was standing
on the porch and said to Mitchell, “[D]idn’t I tell you I was fixing to kill you?” Evans said
that Mitchell “[was] not going anywhere,” explaining that Mitchell’s back was against the
pool-hall door and that he could not move to either side or straight ahead. Evans stated that
Cole was waving his left hand in the air while he spoke, he had his right hand in his pants,
and he was “pulling” and “was toting, like he was, you know, trying to get a weapon.”
According to Evans, Mitchell stumbled back toward the closed door behind him like he was
scared and then fired a gun at Cole, who still had his hand in his pants. Evans confirmed on
cross-examination that he did not see Cole with a weapon.
The State presented rebuttal testimony of Lieutenant Randall Gilbert of the Union
County Sheriff’s Office. Sheriff Gilbert testified that he took a statement from Evans six days
after the shooting. In his statement, Evans said that when Cole ran up to Mitchell outside
the pool hall, he yelled at Mitchell about leaving his mother alone. Mitchell denied doing
anything to Cole’s mother, but Cole kept yelling at him. Evans stated that Mitchell pulled
out his gun, Cole said, “[Y]ou ain’t going to do anything,” and Mitchell shot Cole, who had
his hand in his pants.
7 IV. Justification Instruction
At the time of the incident giving rise to this appeal, a person was justified in using
deadly force if he reasonably believed that another person was committing or about to
commit a felony involving physical force or violence or using or about to use unlawful deadly
force. Ark. Code Ann. § 5-2-607(a)(1)–(2) (Repl. 2013). A person could not use deadly force,
however, if the person knew that he could avoid the necessity by retreating with complete
safety. Ark. Code Ann. § 5-2-607(b). A “reasonable belief” is the belief that “an ordinary and
prudent person would form under the circumstances in question.” Ark. Code Ann. § 5-1-
102(18) (Repl. 2024).
The question of justification is largely a matter of the defendant’s intent. Taylor v.
State, 28 Ark. App. 146, 150, 771 S.W.2d 318, 320 (1989). A defendant’s intention, being
a subjective matter, is ordinarily not subject to proof by direct evidence but rather must be
established by circumstantial evidence. Id., 771 S.W.2d at 320. It is essentially a question of
fact to be decided by the trier of fact. Id., 771 S.W.2d at 320; see also Green, 2011 Ark. App.
700, at 3 (stating that “[w]hether one is justified is largely a matter of the defendant’s intent
and is generally a fact question”). The defendant’s belief must be objectively reasonable and
not arrived at via fault or carelessness. Furlow, 2023 Ark. App. 192, at 9, 664 S.W.3d at 464.
A justification instruction must be given if there is any evidence to support it. Id., 664 S.W.3d
at 464.
In denying Mitchell’s request for the justification instruction, the circuit court stated
that “[Mitchell] only presented the testimony of another witness that did not have any
8 evidence of what [Mitchell] believed. And accordingly, there is no evidence to support the
introduction of this instruction.”
On appeal, Mitchell argues that he shot his gun at Cole only after Cole, who was the
aggressor inside and outside the pool hall, threatened to kill him, stepped toward him, and
appeared to reach for a gun, causing Mitchell to be scared and stumble backward. Mitchell
contends that Cole’s threats and actions gave Mitchell the “reasonable belief” that Cole was
about to commit a felony involving force or violence. Mitchell argues that he had nowhere
to go. Finally, Mitchell argues that contrary to the circuit court’s statement, his own
testimony was not required for the justification instruction to be given.
The State acknowledges Mitchell’s argument that the circuit court improperly denied
the justification instruction because of the lack of testimony directly establishing what
Mitchell believed. Nonetheless, the State argues that “[even] if the [circuit] court did refuse
the instruction for the wrong reason, this Court can still affirm if it reached the right result,”
contending that there was no rational basis in the evidence for giving the self-defense
instruction. Specifically, the State argues that after the initial confrontation inside the pool
hall had concluded, Mitchell armed himself with a gun, followed Cole outside, and shot him
even though Cole never brandished a weapon or physically assaulted Mitchell. The State also
argues that Mitchell could have avoided the second encounter outside if he had stayed inside
instead of following Cole outside.
The State cites Douglas v. State, 2018 Ark. 89, 540 S.W.3d 685, which holds that the
justification defense is not applicable when one arms himself and goes to a place in
9 anticipation that another will attack him. However, in Douglas, it was undisputed that the
initial confrontation between the defendant and the victim at the defendant’s home had
fully concluded, and the victim left and returned to his own home. Id. at 7, 540 S.W.3d at
689. The defendant then armed himself and went to the victim’s home where he killed him.
Id., 540 S.W.3d at 689. These facts are distinguishable from the facts in the instant case.
Mitchell walked outside the pool hall five or six minutes after Cole left. It is unclear from
the testimony whether Mitchell went outside to look for Cole or whether he went outside to
go home, believing that Cole had left the premises. There was, however, testimony that Cole
ran up to Mitchell as soon as he stepped outside.
We hold that the circuit court abused its discretion in denying the justification
instruction on the basis of its finding that there was not “any evidence of what the defendant
believed.” A defendant’s testimony is not required to raise the issue of justification. In fact,
this court has found that the justification instruction was appropriate even when the
defendant testified that he did not commit the crime. Gray v. State, 2019 Ark. App. 543, at
6–7, 590 S.W.3d 177, 180. Additionally, justification becomes a defense when any evidence
is offered tending to support its existence, and this evidence may be introduced by either the
prosecution or the defense. Peals v. State, 266 Ark. 410, 418, 584 S.W.2d 1, 5 (1979).
It is also important to note that our role on appeal is not to weigh the evidence but
to determine whether there is any evidence to support a jury instruction. In Humphrey v.
State, 332 Ark. 398, 410, 966 S.W.2d 213, 219 (1998), our supreme court reversed and
remanded the circuit court’s refusal to give the justification instruction where the defendant
10 did not see the victim with a gun but thought the victim was reaching for a gun. The
Humphrey court set forth our role in reviewing this type of case:
Our role is not to weigh the evidence to determine if the justification instruction should have been given. Instead, the standard requires that we limit our consideration to whether there is any evidence tending to support the existence of a defense. If there is such evidence, then the justification instruction must be submitted to the jury so that it can make the factual determination as to whether the charged conduct was committed in self-defense.
Id., 966 S.W.2d at 219.
In the case at bar, there is some evidence that Mitchell reasonably believed Cole was
about to commit a felony involving force or violence upon Mitchell when he shot Cole.
There is testimony that Cole kicked open the door to the one-room, one-door pool hall,
approached Mitchell with a liquor bottle, hit the pool table with the bottle, cursed at
Mitchell, told him to stop “messing with his mom,” and threatened to kill Mitchell. Cole
was yelling and angry and had to be removed from the pool hall. There was testimony that,
once outside, his cousin and another individual tried to calm Cole down without success
and that he went to his vehicle to retrieve a gun. Approximately five or six minutes after Cole
was removed from the pool hall, Mitchell checked his surroundings and exited the building.
As Mitchell stood on the front porch of the pool hall with his back to the door, Cole ran to
the front of the pool hall from the back of the adjacent barbershop, sneaked up to the front
porch, stepped up the steps toward Mitchell, threatened to kill Mitchell again, reached into
his pants, and “pulled” as if he had a gun. There was testimony that Mitchell had nowhere
to go, looked scared, stumbled backward, and shot Cole. There was evidence that Cole was
11 the initial aggressor in both encounters with Mitchell that occurred within five to six minutes
of each other. Finally, there was evidence that Cole seemed intoxicated and had marijuana
in his system along with a blood-alcohol content higher than the legal limit for driving in
Arkansas.
The State and the dissenting judges present an alternative interpretation of the
evidence that asks us to weigh the testimony emphasizing that Cole was not seen with a
weapon and Mitchell’s purported opportunity to remain in the one-room pool hall.
However, this view of the evidence does not exclude other rational interpretations, and
weighing the evidence is not a role this court can indulge on appeal. Rather, that
determination is for the jury.
Because there is some evidence to support it, the justification instruction should have
been submitted to the jury so that it could make the factual determination whether the
charged conduct was committed in self-defense. Accordingly, we hold that the circuit court
abused its discretion when it refused Mitchell’s proffered justification instruction, and we
reverse and remand on this point.
V. EED Manslaughter Instruction
Mitchell also argues that the circuit court erred in refusing his proffered jury
instruction on EED manslaughter. A person commits EED manslaughter if “[t]he person
causes the death of another person under circumstances that would be murder, except that
he or she causes the death under the influence of extreme emotional disturbance for which
there is reasonable excuse.” Ark. Code Ann. § 5-10-104(a)(1)(A) (Repl. 2024). A jury
12 instruction on EED manslaughter requires evidence that the defendant killed the victim
following provocation such as “physical fighting, a threat, or a brandished weapon.” Boyle v.
State, 363 Ark. 356, 362, 214 S.W.3d 250, 253 (2005). However, “mere threats or menaces,
where the person killed was unarmed and neither committing nor attempting to commit
violence on the defendant at the time of the killing, will not free him of the guilt of murder.”
Pollard v. State, 2009 Ark. 434, at 5, 336 S.W.3d 866, 868 (citing Rainey v. State, 310 Ark.
419, 423, 837 S.W.2d 453, 455 (1992)). Adequate provocation can occur when the victim is
armed or is attempting to commit violence toward the defendant. Id., 336 S.W.3d at 868. A
person is not entitled to an instruction on EED manslaughter, however, when he “invited
the provocation that ensued between him and” the victim. See, e.g., Douglas, 2019 Ark. 57,
at 13, 567 S.W.3d at 493.
We review the refusal to instruct on EED manslaughter for an abuse of discretion,
but “[w]hen there is the slightest evidence to warrant an instruction on a lesser included
offense, it is error to refuse to give it.” Rainey v. State, 310 Ark. 419, 422, 837 S.W.2d 453,
455(1992); see also Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). An instruction should
be rejected when there is no rational basis for giving it. Furlow, 2023 Ark. App. 192, at 10,
664 S.W.3d at 465.
Mitchell argues that the circuit court abused its discretion in refusing the EED
manslaughter instruction because there is some evidence on this record that he was “acting
under extreme emotional disturbance.” He recites the same evidence on which he relied to
13 support his argument that the court abused its discretion in denying his justification
instruction.
In response, the State contends that there is no rational basis on which to give the
EED manslaughter instruction because there was no evidence in the record that Cole
brandished a weapon or that he violently assaulted Mitchell. It argues that Cole was unarmed
and that even Evans testified that Cole did not “present” a weapon before Cole was shot.
The State cites Pollard for support. In Pollard, a witness testified that the victim
wrapped his shirt around his hand and told Pollard to put the gun down and “fight [him]
like a man.” 2009 Ark. 434, at 2, 336 S.W.3d at 867. Another witness testified that the two
men were arguing just before the victim raised his hands and Pollard shot him. Id., 336
S.W.3d at 867. No witness testified that the victim was armed with a gun. Id., 336 S.W.3d
at 867. Pollard testified that, earlier in the night, the victim had called him a snitch, showed
him the butt of a pistol in his waistband, and threatened to “blow yo’ ass off.” Id. at 7, 336
S.W.3d at 869. Pollard also testified that when the victim approached him later that same
night while cursing at him with his fist wrapped in something, Pollard was scared and
believed the victim had a gun and intended to kill him. Id. at 7, 336 S.W.3d at 869–70.
The supreme court stated that the only evidence in support of the EED-manslaughter
instruction was the defendant’s self-serving testimony, and it was contradicted by several
eyewitnesses. Id. at 9, 336 S.W.3d at 870. The court further held that even if it accepted
Pollard’s self-serving testimony as potential evidence to support a manslaughter instruction,
14 the victim’s “threats” as testified did not provide a rational basis for the instruction. Id. at
10, 336 S.W.3d at 871.
Pollard is distinguishable because Mitchell, unlike the defendant in Pollard, is not
relying on his own testimony in support of the EED manslaughter instruction. He relies on
the testimony from State and defense witnesses who were present at the time of the shooting.
Second, unlike the facts in Pollard, the testimony of the witnesses in Mitchell’s case
constitutes some evidence that he caused Cole’s death under the influence of extreme
emotional disturbance for which there was a reasonable excuse. This evidence demonstrated
that Cole was the initial aggressor both inside and outside the pool hall; he provoked
Mitchell inside and outside the pool hall; he was angry, yelling, and cursing at Mitchell; he
hit a liquor bottle against the pool table; he had to be physically removed from the pool hall;
he threatened to kill Mitchell more than once; and he “ran up on” Mitchell as Mitchell
stepped out of the pool hall and was moving up the steps toward Mitchell with his hand in
his pants, pulling as if he had a weapon. On this evidence, a jury could rationally determine
that Mitchell was acting under the influence of extreme emotional distress for which there
was a reasonable excuse. Again, it is not our role to weigh the evidence but to ascertain
whether there was any evidence to support the requested instruction. Therefore, we hold
that the circuit court abused its discretion when it refused Mitchell’s request to give the jury
the EED-manslaughter instruction. Accordingly, we reverse and remand on this point.
VI. Motion for New Trial
15 Because we reverse and remand the circuit court’s denial of the proffered jury
instructions on justification and EED manslaughter, Mitchell’s third point on appeal—his
challenge to the deemed denial of his motion for new trial for refusing to give the jury the
two instructions—is moot.
Reversed and remanded.
HARRISON, TUCKER, and THYER, JJ., agree.
KLAPPENBACH, C.J., and BARRETT, J., dissent.
N. MARK KLAPPENBACH, Chief Judge, dissenting. I would affirm Mitchell’s murder
conviction because the circuit court correctly denied his requests for the two jury instructions
at issue.
Critical to the inquiry of whether one is justified in using deadly physical force is the
reasonableness of the accused’s apprehension that he was in danger of death or of suffering
great bodily harm. Furlow v. State, 2023 Ark. App. 192, 664 S.W.3d 457. Although Cole
had been aggressive toward Mitchell, there was no evidence of any physical contact or
fighting and no evidence that Cole brandished a weapon. See Furlow, supra (holding that
there was no basis for a justification instruction where only verbal arguing had occurred
without any physical contact, fighting, or brandishing of weapons). While Evans testified
that he saw Cole reach under his vehicle’s seat and Evans believed that Cole was retrieving
a gun, this occurred before Mitchell came outside. Accordingly, even if Cole appeared to
retrieve a gun, Mitchell did not see this. Moreover, Evans’s account had changed from the
statement he gave law enforcement the week of Cole’s killing. Evans reported then that
16 Mitchell pulled out his gun in response to Cole yelling at him and that Mitchell did not
shoot Cole until Cole told him he “ain’t going to do anything.” What remained consistent
in both Evans’s account to law enforcement the week of the killing and his testimony at trial
is that he never saw Cole with a weapon, and Cole never took his hand out of his pants
before he was shot. I do not believe this evidence could support a finding that Mitchell
reasonably believed Cole was about to commit a felony involving force or violence or about
to use unlawful deadly force.
Furthermore, when this offense occurred, the law provided that a person may not use
deadly physical force in self-defense if he knows he can avoid the necessity of using that force
with complete safety by retreating. See Ark. Code Ann. § 5-2-607(b)(1) (Repl. 2013). One
who claims self-defense must show not only that the person killed was the aggressor, but also
that the accused used all reasonable means within his power and consistent with his safety
to avoid the killing. Douglas v. State, 2018 Ark. 89, 540 S.W.3d 685. Here, there is nothing
to show that Mitchell could not have opened the door and re-entered the pool hall when
approached by Cole outside.
I would also hold that the denial of the extreme-emotional-disturbance manslaughter
instruction was appropriate because, as recognized by the majority, “mere threats or menaces,
where the person killed was unarmed and neither committing nor attempting to commit
violence on the defendant at the time of the killing, will not free him of the guilt of murder.”
Pollard v. State, 2009 Ark. 434, at 5, 336 S.W.3d 866, 868. In Pollard, the defendant testified
that he believed the victim had a gun when the victim requested they fight because earlier in
17 the night, the victim showed him the butt of a pistol in his waistband and threatened him.
The supreme court held that these alleged threats did not provide a rational basis for the
instruction where the victim was unarmed and neither committing nor attempting to
commit violence on Pollard at the time of the killing; there was no evidence that Pollard
actually saw the victim with a weapon in his hand at the time of the killing. Here, as in
Pollard, there was no testimony that anyone actually saw Cole with a weapon in his hand at
the time of the killing. While Evans testified that Cole threatened Mitchell outside before
the shooting, he did not testify that Cole brandished a weapon or attempted to commit
violence on Mitchell.
I cannot say that the circuit court abused its discretion in denying the two
instructions. Accordingly, I dissent.
Barrett, J., joins.
The Firm, PLLC, by: S.L. Smith, for appellant.
Tim Griffin, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.