Cite as 2017 Ark. 10
SUPREME COURT OF ARKANSAS No. CR-16-165
CHRIS AARON SCHNARR Opinion Delivered: January 26, 2017 APPELLANT
V. APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT STATE OF ARKANSAS [60CR-13-2176] APPELLEE HONORABLE JAMES LEON JOHNSON, JUDGE
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
COURTNEY HUDSON GOODSON, Associate Justice
A jury in the Pulaski County Circuit Court found appellant Chris Aaron Schnarr
guilty of manslaughter for which he received a sentence of ten years’ imprisonment. For
reversal, Schnarr asserts that the circuit court erred by (1) excluding testimony about the
victim’s character and previous acts of violence; (2) refusing to declare a mistrial when it
was discovered that the court’s bailiff had barred members of his family from the courtroom
during voir dire; and (3) rejecting instructions on negligent homicide and imperfect self-
defense. We granted Schnarr’s motion to transfer the appeal to us from the court of appeals
in light of his request to overrule precedent established by this court. Therefore, our
jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(5). After considering his
arguments, we affirm in part and reverse and remand in part for a new trial. Factual Background
The record reflects that on Saturday, May 11, 2013, Schnarr was driving from North
Little Rock when he exited Interstate 30 at Sixth Street and almost collided with a tan SUV
that did not yield the right of way. The victim, Arista Aldridge, was the driver of the tan
SUV, which was also occupied by Aldridge’s girlfriend, Alice Bryant, and their son. As the
vehicles drove parallel to one another down the street, Schnarr and Aldridge exchanged
profanities and hand gestures through their opened windows. Schnarr turned right onto
Sixth Street and into the outside lane. The tan SUV followed in the inside lane of Sixth
Street and then pulled in front of Schnarr’s vehicle and abruptly stopped. Aldridge, who
was not armed, emerged from the SUV and approached Schnarr’s vehicle. According to
Schnarr, Aldridge was yelling and waving his arms around, and Aldridge also poked Schnarr
in the face with his finger. Witnesses to the altercation testified that Aldridge backed away
from Schnarr’s vehicle. In his testimony, Schnarr stated that Aldridge started to move back
toward Schnarr’s vehicle and that he pointed his handgun at Aldridge and told Aldridge to
leave. Schnarr testified that, when Aldridge did not stop, he fired two shots at Aldridge,
who was approximately six feet away from him. He said that Aldridge staggered but regained
his balance and advanced toward him again, at which point Schnarr shot at Aldridge a third
time. Aldridge fell to the ground and later died. Schnarr had shot Aldridge once in the
abdomen and again on the side of Aldridge’s right arm. The wound to the abdomen proved
to be fatal.
In his testimony, Schnarr, who possessed a concealed-carry permit, also explained
that he has a condition called Total Situs Inversus and that he suffers from a faulty heart valve that has required surgical repair. He testified that his heart condition restricted his
activities and prohibited him from playing contact sports. Schnarr stated that he did not see
Aldridge with a weapon. In his statement to the police, Schnarr informed the officers that
Aldridge had not said that he had a gun, nor had Aldridge threatened to do bodily harm.
The prosecuting attorney charged Schnarr with the offense of first-degree murder.
The circuit court gave instructions on the lesser-included offenses of second-degree murder
and manslaughter, as well as an instruction on justification, commonly known as self-
defense. The jury found Schnarr guilty of manslaughter and sentenced him as previously
stated in this opinion.1 This appeal followed.
Character Evidence
Schnarr first argues on appeal that the circuit court erred by excluding evidence of
specific instances of Aldridge’s past violent conduct that were unknown by him. Schnarr
sought to introduce evidence concerning incidents of violence that Aldridge had directed
toward Bryant, which had prompted her to obtain orders of protection against Aldridge.
He asserts that such evidence is admissible as an essential element of his defense of
justification, and he urges this court to overrule our previous decisions limiting the
admission of specific instances of a victim’s prior violent conduct to those incidents that are
within the knowledge of the accused. Schnarr maintains that our decisions on this topic
represent a minority view among courts in other jurisdictions. Further, he contends that
our caselaw is contrary to Arkansas Code Annotated section 5-2-607 (Supp. 2015), which
1 This was Schnarr’s second trial. The first one ended in a mistrial because the jury could not reach a verdict. sets forth the defense of justification, and he asserts that if the General Assembly had wished
to exclude this evidence, it would have done so rather than leave it to the courts to impose
such a restriction.
Initially, we reject out of hand Schnarr’s assertion that the exclusion of the proposed
evidence is not contemplated by section 5-2-607. This statute delineates the substantive
components of the defense of justification. It is not a rule of evidence. Pursuant to section
3 of amendment 80 to our constitution, rules regarding pleading, practice, and procedure
are solely the responsibility of this court. C.B. v. State, 2012 Ark. 220, 406 S.W.3d 796.
The rules of evidence are rules of pleading, practice, and procedure that fall within the
exclusive domain of this court. See Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534.
Consequently, Schnarr’s claim that the statute poses no bar to the admission of the evidence
is misplaced.
The evidentiary rules governing this issue are Rules 404(a)(2) and 405 of the Arkansas
Rules of Evidence. Rule 404(a)(2) provides,
(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except;
....
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by the accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. Once the admissibility of character evidence has been established under Rule 404, Rule 405
sets forth the methods of proof that may be utilized. See Frye v. State, 2009 Ark. 110, 313
S.W.3d 10. This rule states,
(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross- examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
In Montague v. State, 213 Ark. 575, 211 S.W.2d 879 (1948), we succinctly stated our
position on the admissibility of character evidence concerning the victim when self-defense
is asserted:
Where character evidence is offered in support of the contention that the deceased was the aggressor or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times. . . . But, on the issue whether or not the accused had reasonable ground to believe himself in imminent danger, he may show his knowledge of specific instances of violence on the part of the deceased.
Montague, 213 Ark. at 584, 211 S.W.2d at 884–85 (quoting Pope v. State, 172 Ark. 61, 66–
67, 287 S.W. 747, 749 (1926)). Thus, when evidence of a victim’s propensity for violence
is offered to demonstrate that the victim was the aggressor, we have limited the form of the
testimony to reputation and opinion. Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734
(1982); McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978); Sanders v. State, 245 Ark.
321, 432 S.W.2d 467 (1968). On the other hand, where the evidence is offered to shed
light on the accused’s state of mind, we have permitted evidence of specific instances of
conduct that were directed at the accused or were within his knowledge. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981); Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).
When character evidence is offered for this purpose, the requirement that the defendant
have knowledge of the victim’s prior acts of violence is a matter of relevancy. As we
observed in Pope,
Clearly, evidence of specific acts of violence by the deceased is inadmissible where the defendant had no knowledge or had not been informed of such acts prior to the homicide, since, naturally, his mind could not have been materially affected in the absence of such knowledge. . . However, according to most courts, and the trend of modern authority, if, prior to the homicide, the defendant, either through his own observation or through information communicated to him by others, including the deceased himself, knew of other acts of violence of the deceased, he may, in support of his contention that he had reasonable grounds to believe himself in imminent danger from an assault by the deceased, introduce evidence of such prior unlawful acts of violence by the deceased. Such evidence bears on the question whether the defendant reasonably apprehended danger to his life or of great bodily injury.
Pope, 262 Ark. at 481–482, 557 S.W.2d at 890 (quoting 40 Am. Jur. 2d Homicide, § 306
(1968)).
Schnarr refers to cases from other jurisdictions which hold that specific instances of
the victim’s violent conduct are admissible as proof of who was the aggressor, even if the
defendant possesses no knowledge about the incidents. See, e.g., State v. Hill, 885 S.W.2d
357 (Tenn. Crim. App. 1994). However, when the evidence is offered to show the
accused’s state of mind, courts adhere to our view that the accused must have knowledge of
the victim’s past acts of violence as a prerequisite for admissibility. As recognized by the
Supreme Judicial Court of Massachusetts, almost every American jurisdiction requires prior
knowledge as a predicate to admission when the basis for introducing the testimony is to
show that the defendant was reasonably apprehensive for his safety. Commonwealth v. Adjutant, 824 N.E.2d 1, 6 (Mass. 2005). See also 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence § 405.05(4) (2d ed. 2013); 1A Wigmore, Evidence § 63 (Tillers
rev. 1983). Therefore, the purpose for which Schnarr offered the evidence is critical to our
review.
In his brief filed in the circuit court, Schnarr argued,
Of course, this was an altercation initiated by the deceased. When there is no dispute that the defendant killed the deceased; the defendant asserts that he acted in self-defense; and although there are witnesses to the shooting, there are no other witnesses to what was said, the fact that the deceased was a hot-tempered bully with a habit of threatening persons who displeased him is an essential element of Schnarr’s defense. Schnarr is entitled to corroborate his sensations of Aldridge’s conduct with corroborative evidence of Aldridge’s prior conduct.
The italicized portion of the argument demonstrates that Schnarr considered it settled that
Aldridge was the aggressor and that the purpose for which he sought to introduce the
testimony pertained to the issue of his state of mind and whether he reasonably apprehended
danger to his life or of great bodily injury. Consequently, based on our caselaw, which is
consistent with that from other jurisdictions, the circuit court did not abuse its discretion by
disallowing testimony of Aldridge’s past violent conduct of which Schnarr had no
knowledge. Dickey v. State, 2016 Ark. 66, 483 S.W.3d 287 (stating the standard of review
that we do not reverse evidentiary rulings absent a manifest abuse of discretion).2
2 We note that Schnarr contends in his brief to this court that the evidence was admissible to corroborate his testimony that Aldridge was the aggressor at the moment the shots were fired. This argument was not made below. It is well settled that a party is bound by the nature and scope of the objections and arguments made at trial and may not enlarge or change those grounds on appeal. Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69; Frye v. State, 2009 Ark. 110, 313 S.W.3d 10. In connection with this argument, Schnarr also asserts that the exclusion of the
evidence denied him the constitutional right to present a defense. We disagree.
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)). However, the Supreme Court has also
recognized that “state and federal lawmakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). The right to
present a complete defense is abridged by evidentiary rules that “infring[e] upon a weighty
interest of the accused” and are “‘arbitrary’ or ‘disproportionate to the purposes they are
designed to serve.’” Scheffer, 523 U.S. at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 58
(1987)). Only rarely has the Court held that the right to present a complete defense was
violated by the exclusion of defense evidence under a state rule of evidence. Nevada v.
Jackson, 133 S. Ct. 1990 (2013). “[T]he Constitution permits judges to exclude evidence
that is “repetitive . . ., only marginally relevant” or poses an undue risk of “harassment,
prejudice, [or] confusion of the issues.” Holmes, 547 U.S. at 326–27. Here, the proffered
evidence was not relevant for the purpose for which it was offered because events of which
Schnarr was not aware could have had no effect on his state of mind. Therefore, the
exclusion of the evidence was not arbitrary and did not violate Schnarr’s constitutional right
to present a complete defense. Public Trial
Schnarr next argues that the circuit court erred in refusing to quash the selected jury
and to declare a mistrial when his counsel learned that the court’s bailiff had excluded
members of Schnarr’s family from the courtroom during voir dire. He contends that this
action deprived him of his constitutional right to a public trial. We find merit in this
argument.
On this point, the record reflects that voir dire began at 10:13 a.m., and the court
recessed for lunch at 12:50 p.m. Court reconvened at 2:00 p.m., at which time the defense
announced that it would not exercise any additional peremptory strikes. With that
statement, the twelfth juror was immediately seated, as well as two alternates. The circuit
court swore in the jury and took a brief recess for the convenience of the jurors at 2:07 p.m.
At 2:20 p.m., outside the presence of the jury, defense counsel informed the circuit court
that he had learned “a few minutes ago” that members of Schnarr’s family had been excluded
from the courtroom during voir dire. Citing Presley v. Georgia, 130 S. Ct. 721 (2010) (per
curiam), he moved to quash the jury and to declare a mistrial based on the denial of Schnarr’s
constitutional right to a public trial. In response, the prosecution argued that Presley, where
the trial court had ordered the closure of the courtroom, was distinguishable because in this
instance any exclusion was accomplished at the request of the bailiff, unbeknownst to the
parties or the court. The prosecution also argued that the room was overcrowded because
two jury panels were in attendance and noted that a public defender, who was not a party
to the case, was in the courtroom to observe voir dire. The circuit court ruled that the courtroom was not closed and that Schnarr was not
denied the right to a public trial. Later, Schnarr renewed his motion, and he proffered the
testimony of his family members.3 Schnarr’s brother, Roy, testified that the bailiff asked
him to leave the courtroom when the venire was brought into the courtroom. Serena
Schnarr, Roy’s wife, also stated that she and Roy were asked to leave before the prospective
jurors entered the courtroom. Judy Seigrist, Schnarr’s aunt, also testified that she was denied
admittance to the courtroom while the jury was being selected. Following the proffer, the
prosecutor continued to argue that the courtroom was not closed, noting that in addition
to the public defender, a member of the press was present in the courtroom during voir
dire. The circuit court denied Schnarr’s renewed motion.4
Before reaching the merits of Schnarr’s argument, we must address the State’s
contention that the question is not preserved for appeal because Schnarr failed to raise a
contemporaneous objection at the time the alleged violation occurred. In response, Schnarr
asserts that he brought the matter to the circuit court’s attention at the first opportunity once
he learned of the closure.
3 The circuit court left the courtroom during the proffer of the testimony. We also note that the prosecution did not offer the testimony of the circuit court’s bailiff, although she expressed the intention to do so. 4 In its brief, the State also asserts that a Nick Wade was in the courtroom. During the trial, a juror advised the circuit court that she had seen Wade in the courtroom prior to the selection of the jury. Wade was her landlord, and she had learned that he was a friend of Schnarr’s. She said that Wade walked to the front of the courtroom and then sat in the back of the courtroom. She also stated that he left and that she “didn’t see him the rest of the court.” The court excused her from the jury. Because the juror stated that Wade left the courtroom, we cannot accept the State’s assertion that Wade attended voir dire. The law is well settled that to preserve an issue for appeal, a defendant must object
at the first opportunity, and a motion for mistrial must likewise be made at the first
opportunity. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. In order to be timely, an
objection must be contemporaneous, or nearly so, with the alleged error. Jones v. State, 374
Ark. 475, 288 S.W.3d 633 (2008); Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997).
“To preserve a point for appeal, a proper objection must be asserted at the first opportunity
after the matter to which objection has been made occurs.” Mezquita v. State, 354 Ark.
433, 443, 125 S.W.3d 161, 167 (2003) (quoting Gamble v. State, 351 Ark. 541, 549, 95
S.W.3d 755, 760 (2003)). Also, every reasonable presumption must be indulged against the
waiver of fundamental constitutional rights. Dennis v. State, 2016 Ark. 395, ___ S.W.3d
___. “[L]ike other fundamental trial rights, a right to a public trial may be relinquished only
upon a showing that the defendant knowingly and voluntarily waived such a right.” Walton
v. Briley, 361 F.3d 431, 434 (7th Cir. 2004). Here, the actions of the circuit court’s bailiff
were not known by Schnarr and his counsel; thus, there was no knowing and voluntary
waiver of this right. Otherwise, this court is satisfied that Schnarr raised the denial of his
right to a public trial at the first opportunity after discovering that his family had been
excluded from the courtroom. Accordingly, we hold that the issue is preserved for appeal.
Turning to the merits of the argument, the Sixth Amendment to the United States
Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial.” Likewise, article 2, section 10 of the Arkansas Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial[.]” We have recognized that “[t]he right to a public trial is one of the most important safeguards in the prosecution of persons accused of crime.” Sirratt v. State, 240
Ark. 47, 53, 398 S.W.2d 63, 66 (1966) (quoting People v. Murray, 50 N.W. 995, 997 (Mich.
1891)). “The right to a public trial has long been viewed as ‘a safeguard against any attempt
to employ our courts as instruments of persecution.’” United States v. Thunder, 438 F.3d 866
(8th Cir. 2006) (quoting In re Oliver, 333 U.S. 257, 270 (1948)). “The requirement of a
public trial is for the benefit of the accused; that the public may see he is fairly dealt with
and not unjustly condemned, and that the presence of interested spectators may keep his
triers keenly alive to a sense of their responsibility and to the importance of their
functions[.]” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting In re Oliver, 333 U.S. at
270, n.25). “The importance we as a Nation attach to the public trial is reflected both in
its deep roots in the English common law and in its seemingly universal recognition in this
country since the earliest of times.” Gannett Co. v. DePasquale, 443 U.S. 368, 414 (1979)
(Blackmun, J., concurring in part and dissenting in part). As enunciated by the Waller Court,
the values advanced by the fundamental right of a public trial are (1) to ensure a fair trial;
(2) to remind the prosecutor and the judge of their responsibility to the accused and the
importance of their functions; (3) to encourage witnesses to come forward; and (4) to
discourage perjury.
We have previously determined that the right to public trial extends to voir dire.
Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984). In Presley, supra, the Supreme Court
also held that the guarantee of a public trial applies to the jury-selection process. There,
the trial court excluded the lone courtroom observer, the defendant’s uncle, from the
courtroom during voir dire over the defendant’s objection and request that “some accommodation” be made. Presley, 558 U.S. at 210. In rejecting the defendant’s argument,
the trial court found that there would be no space in the courtroom for the public to sit
once the jury arrived. In addition, the trial court did not wish the uncle to intermingle with
the members of the jury panel.
In reversing the Georgia Supreme Court’s affirmance of Presley’s conviction, the
Court noted that the right to an open trial can be circumscribed in certain situations.
However, the Supreme Court commented that “[s]uch circumstances will be rare, however,
and the balance of interests must be struck with special care.” Id. at 213. The Court also
expressed the view that “[t]rial courts are obligated to take every reasonable measure to
accommodate public attendance at criminal trials.”
On this subject, courts have stated that whether the closure was intentional or
inadvertent is constitutionally irrelevant. Walton v. Briley, 361 F.3d 431 (7th Cir. 2004);
Vanness, 738 N.W.2d 154 (Wis. Ct. App. 2007). On the other hand, another court has
concluded that a brief, inadvertent closing of a courthouse, and hence the courtroom,
unnoticed by any of the trial participants, did not violate the Sixth Amendment. United
States v. Al-Smadi, 15 F.3d 153 (10th Cir. 1994). In Al-Smadi, the Tenth Circuit also stated
that a defendant’s right to a public trial is not denied absent “some affirmative act by the
trial court meant to exclude persons from the courtroom.” Id. at 154. Nevertheless, other
courts have concluded that a court room may be closed in the constitutional sense without
an express judicial order. See, e.g., Owens v. United States, 483 F.3d 48 (1st Cir. 2007);
Martineau v. Perrin, 601 F.2d 1196 (1st Cir. 1979); Watters v. State, 612 A.2d 1288 (Md.
1992); Commonwealth v. Cohen, 921 N.E.2d 906 (Mass. 2010). Our research also reveals that not every closure rises to the level of a constitutional
deprivation, as trivial, or de minimus, closures may not violate the right to a public trial. See
Kelly v. State, 6 A.3d 396 (Md. Ct. Spec. App. 2010). In this regard, courts have recognized
that a temporary closure may, at times, not violate the Sixth Amendment. Peterson v.
Williams, 85 F.3d 39 (2nd Cir. 1996). Federal courts of appeals have held that closures are
trivial when the core values of the Sixth Amendment have not been violated. Vanness, supra
(citing Walton, supra). Under a triviality standard, the question is whether the actions of the
court and the effect that they had on the conduct of the trial deprived the defendant of the
protections conferred by the Sixth Amendment. Peterson, supra. Moreover, courts that have
considered the question have continued to conduct triviality analyses in the wake of the
holding in Presley that the Sixth Amendment extends to voir dire proceedings. United State
v. Greene, 431 Fed. Appx. 191 (3rd. Cir. 2011); Barrows v. United States, 15. A.3d 673 (D.C.
Cir. 2011); Kelly v. State, 6 A.3d 396 (Md. Ct. Spec. App. 2010).
In determining whether a courtroom closure is so de minimus or trivial that it does
not abridge a defendant’s Sixth Amendment right to a public trial, courts apply various
factors, which include the length of the closure; the significance of the proceedings that
took place while the courtroom was closed; and the scope of the closure, meaning whether
it was a total or partial closure of the courtroom. Kelly, supra. As observed by the Maryland
Special Court of Appeals in Kelly, although the length of time is not dispositive, closures of
less than an hour have been considered de minimus. See Peterson, supra; People v. Bui, 107
Cal. Rptr. 3d 585 (Cal. Ct. App. 2010). When the closure is for a day or longer, courts
have declined to classify the closure as de minimus. Kelly, supra (citing Owens, supra; Cohen, supra). Where the closure consumes a matter of hours but less than one day, courts have
reached conflicting results. Kelly, supra. For example, in State v. Torres, 844 A.2d 155 (R.I.
2004), the exclusion of two sisters for an entire morning during voir dire, which
encompassed the entire jury-selection process, was not considered trivial. Conversely, in
Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009), the exclusion of the defendant’s mother
during the first afternoon of voir dire that took place over several days was classified as de
minimus.
In Kelly, the trial court was not aware that its bailiff had asked the defendant’s family
to leave to make way for the jury during voir dire. Applying the factors it had identified,
the court determined that the closure during voir dire was trivial because the exclusion
lasted only a couple of hours; it did not encompass the entire voir-dire process during which
a significant portion could not be heard by spectators; and the closure was partial and not a
total exclusion of all spectators. By contrast, the Maryland Court of Appeals in Watters,
supra, found a violation of the right to a public trial substantial after a deputy sheriff closed
the courtroom to all but court personnel for the entire jury-selection process that took place
over the course of one morning. The court also rejected the State’s contention that no
violation occurred because the trial court was not aware of the deputy sheriff’s actions.
In the case at bar, we disagree with the circuit court’s conclusion that the courtroom
was not closed. Although an attorney and a member of the press were said to be in
attendance, the fact remains that three members of Schnarr’s family were excluded from the
courtroom. Thus, there was a closure. We are also of the opinion that it is not
constitutionally significant that the closure was not accomplished at the express direction of the circuit court. By whatever means it was achieved, the result remains a closure. In
further evaluating this issue, we adopt the three factors espoused by the Kelly court: (1) the
length of the closure; (2) the significance of the proceedings that took place while the
courtroom was closed; and (3) the scope of the closure. In addition, we note that our
analysis does not require a demonstration of actual prejudice, as both this court and the
Supreme Court have held that a showing of prejudice is not necessary in determining
whether the right to a public trial has been violated. Waller, supra; Sirratt, supra; Taylor, supra.
Here, the record discloses that the closure covered the entire morning of trial, a
period of two hours and thirty-seven minutes. It encompassed all but a few moments of
the jury-selection process. According to precedent, the right to a public trial extends to
voir dire. Presley, supra; Taylor, supra. The Supreme Court has recognized that jury selection
is a crucial part of any criminal case, as it “is the primary means by which a court may
enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice
. . . or predisposition about the defendant’s culpability.” Gomez v. United States, 490 U.S.
858, 873 (1989). In terms of scope, the closure was partial because not all members of the
public were excluded. Weighing these factors, we cannot conclude that the closure was
trivial, and we hold that Schnarr was deprived of his constitutional right to a public trial.
Consequently, we reverse and remand for a new trial.
Jury Instructions
As his final point on appeal, Schnarr asserts that the circuit court erred by refusing to
give instructions on negligent homicide and imperfect self-defense. The State responds that
no rational basis exists in the evidence for the circuit court to have given these instructions. A party is entitled to a jury instruction when it is a correct statement of law and when
there is some basis in the evidence to support giving the instruction. Johnson v. State, 2016
Ark. 156, 489 S.W.3d 668. We have often stated that the refusal to give an instruction on
a lesser-included offense is reversible error if the instruction is supported by even the slightest
evidence. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. However, we will affirm the
circuit court’s decision to not give an instruction on a lesser-included offense if there is no
rational basis for doing so. Friar v. State, 2016 Ark. 245. This court will not reverse a trial
court’s ruling on the submission of a lesser-included jury instruction absent an abuse of
discretion. Pollard v. State, 2009 Ark. 434, 336 S.W.3d 866.
A person commits the offense of negligent homicide if he or she negligently causes
the death of another person. Ark. Code Ann. § 5-10-105(b)(1) (Repl. 2013). The term
“negligently” is defined under Arkansas Code Annotated section 5-2-202(4) (Repl. 2013)
as follows:
(A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of such a nature and degree that the actor’s failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation considering the nature and purpose of the actor’s conduct and the circumstances known to the actor.
Here, Schnarr intentionally fired three shots at Aldridge at fairly close range. Thus,
there is no evidence to justify a finding that Schnarr was unaware that his conduct, or the
risk of his conduct, would result in Aldridge’s death. See Jones v. State, 2012 Ark. 38, 388
S.W.3d 411 (affirming a circuit court’s refusal to give an instruction on negligent homicide where the appellant shot his ex-wife through a window with a scoped rifle); Norris v. State,
2010 Ark. 174, 368 S.W.3d 52 (affirming a circuit court’s decision declining to give an
instruction on negligent homicide where the appellant struck the victim in the head with a
two-by-four).
We also conclude that the circuit court did not abuse its discretion by failing to give
an instruction based on imperfect self-defense, which is based on Arkansas Code Annotated
section 5-2-614 (Repl. 2013):
(a) When 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.
In Harshaw v. State, 344 Ark. 129, 39 S.W.3d 129 (2001), we reversed the circuit
court’s refusal to provide an imperfect-self-defense instruction. There, the victim had
threatened to use a gun during the altercation and was shot after he reached inside a car
window. Given the victim’s threats and actions, we concluded that there was some evidence
to support a finding that Harshaw acted on the basis of an unreasonable or a recklessly
formed belief that he needed to use deadly force to protect himself. By contrast, in Butler
v. State, 2011 Ark. 369, we upheld the denial of an instruction on imperfect self-defense
because there was no evidence that the victim threatened harm or had brandished a weapon.
Accordingly, it could not be said that Butler shot the victim under a reckless belief that the
victim posed a threat.
The circumstances of the present case are more like those in Butler. There is no
evidence that Aldridge appeared to be armed or that he had made any threats to indicate that he was armed. Moreover, Schnarr denied that Aldridge had threatened him with bodily
harm. Consequently, there was no rational basis for giving the instruction, and we hold
that the circuit court did not abuse its discretion in refusing the proffered instruction on
imperfect self-defense.
In this point on appeal, Schnarr asks that we overrule our decision in Kemp v. State,
324 Ark. 178, 919 S.W.2d 943 (1996), in which he claims that this court held that courts
are not required to give an instruction based on section 5-2-614 because there is no model
instruction on the subject. However, in that case we merely held that the circuit court did
not err by refusing the proffered instruction because it omitted a phrase contained in the
statute and was thus incomplete.
HART, J., concurs.
WOMACK, J., concurs in part and dissents in part.
JOSEPHINE LINKER HART, Justice, concurring. I concur but write separately to
address two of the points raised by Chris Schnarr on appeal.
First, Schnarr sought to introduce evidence about a history of domestic violence
involving the victim, Arista Aldridge, and his girlfriend, Alice Bryant. In my view, though
not the majority’s, Schnarr’s argument on appeal is that he should have been permitted to
introduce this evidence to establish that Aldridge remained the aggressor in order to counter
testimony that Aldridge retreated from Schnarr. Rule 404(a)(2) permits the introduction of “[e]vidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by the prosecution to rebut
the same, or evidence of a character trait of peacefulness of the victim offered by the
prosecution in a homicide case to rebut evidence that the victim was the first aggressor.”
Further, “[i]n cases in which character or a trait of character of a person is an essential
element of a charge, claim, or defense, proof may also be made of specific instances of his
conduct. Ark. R. Evid. 405(a) (2016).
Accordingly, if Aldridge had a history of road-rage incidents, then specific instances
of this pertinent character trait would have been admissible to establish that he was the
aggressor here. Thus, we should not preclude the admissibility of specific instances of
pertinent character traits relating to the victim who acts as the aggressor, though the majority
asserts that proposition with approval in dicta. Here, however, the evidence did not relate
to road-rage incidents, so the evidence would not have been evidence of a specific instance
of a pertinent character trait.
Second, Schnarr argues that the circuit court erred in refusing to give the jury an
instruction on the crime of negligent homicide, which requires proof that a person
negligently caused the death of another person. Ark. Code Ann. § 5-10-105(b)(1) (Repl.
2013). He asserts that he was entitled to the instruction because, while he thought he was
justified in using physical force, arguably, he was negligent either in forming the belief that
the use of physical force was necessary or in employing an excessive degree of physical force.
Ark. Code Ann. § 5-2-614(a). This same subsection, however, further provides that this
justification defense “is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.” Thus, this defense would have been
unavailable for the crime of negligent homicide.
SHAWN A. WOMACK, Justice, concurring in part and dissenting in part.
I agree with the judgment of majority that the sentence should be reversed. I write
separately to concur in part and to dissent in part. I believe that Schnarr should be allowed
an imperfect self-defense instruction at trial based upon the facts in the record. Further, I
would agree with the majority on the need to adopt the Kelly factors for the purpose of
evaluating a public-trial issue, but would find that those factors weigh against a finding that
there was not a public trial in this case. Finally, I would concur with the majority on the
issue of character evidence.
I. Imperfect Self-Defense
On Saturday, May 11, 2013, Christopher Schnarr, a college student at the University
of Arkansas at Little Rock, left his home in North Little Rock to travel to his place of
employment in downtown Little Rock so that he could use his employer’s computer to
complete a college assignment. As he exited Interstate 30, he had to swerve his vehicle to
avoid a collision with a vehicle traveling on the frontage road driven by Arista Aldridge.
Schnarr had the right-of-way over the Aldridge vehicle, which had failed to yield to the
interstate traffic as required.
After the near collision, the two men briefly exchange profanities at the intersection
from within their vehicles and Schnarr continued on his predetermined route to 6th Street
on his way to his office. At that moment, Aldridge altered his own route and began to
pursue the Schnarr vehicle. Aldridge ultimately overtook the Schnarr vehicle and cut off the appellant, forcing him to come to a stop on 6th Street with the Aldridge vehicle blocking
the forward escape route of the Schnarr vehicle. Schnarr also stated that he did not think
he could drive away because there appeared to be other vehicles in his rear-view mirror.
Aldridge exited his vehicle, and in an angry and aggressive manner, approached
Schnarr in his trapped vehicle while screaming profanities at him. Aldridge proceeded to
place his hands on the driver’s-side doorframe of the appellant’s vehicle and ultimately
physically assaulted Schnarr, poking him in the face repeatedly.
Schnarr testified that he was in fear for his life because this man, who was unknown
to him, forced his vehicle to stop, blocked his escape path, exited his own vehicle to
approach the appellant’s vehicle in a hostile manor, screamed profanity at him, and
repeatedly physically assaulted him. He also testified that when his vehicle was forced to
stop that he had reached under his seat and placed his gun in his lap for protection. During
the initial portion of the incident, Schnarr did not fire his weapon at Aldridge, either
through personal restraint or having frozen in fear.
Aldridge eventually turned and walked away from the appellant’s vehicle to the
center of the road, approximately the width of one lane away. Aldridge then turned back
to face Schnarr who had now raised his firearm and pointed it at Aldridge, telling him to
leave. It is undisputed that Aldridge turned back toward Schnarr. There is some dispute as
to whether Aldridge moved back toward Schnarr’s direction or simply turned to face him.
However, Schnarr testified that he believed that Aldridge was coming back at him after he
had warned him to leave and displayed his firearm. Schnarr fired three shots, hitting
Aldridge twice on the front side of his body. Schnarr testified that he is a valid concealed-carry licensee and that he often carries a
firearm for protection because he lives and travels in dangerous areas. He testified further
that he had never before fired his firearm at another person nor had he been in a situation
where he felt that he had to deploy his weapon. He fired in this instance only because he
felt trapped and in fear for his personal safety or in fear for his life.
We have been clear that “[i]t is reversible error to refuse to give an instruction on a
lesser-included offense when the instruction is supported by even the slightest evidence.”
Harshaw v. State, 344 Ark. 129, 132, 39 S.W.3d 753, 755 (2001). On appeal, this court will
uphold a trial court’s decision if there is no rational basis for giving the instruction. Id.
A defendant is entitled to an imperfect-self-defense instruction if he either recklessly
or negligently formed the belief that force was necessary to defend himself. Ark. Code Ann.
§ 5-2-614(a) (Repl. 2013); Harshaw, 344 Ark. at 135 n.1, 39 S.W.3d at 756 n.1. Criminal
negligence occurs when someone should be aware of a “substantial and unjustifiable risk”
that the result will occur. Ark. Code Ann. § 5-2-202(4)(A) (Repl. 2013). Ordinarily,
negligent homicide would be unavailable to a defendant in the current circumstances.
However, if a defendant can establish that he negligently formed the belief that self-defense
was justified, then he would be entitled to an instruction based on negligent homicide.
Harshaw, 344 Ark. at 135 n.1, 39 S.W.3d at 756 n.1.
The cases in which we have denied an imperfect self-defense instruction are vastly
different than the current circumstances. In Kemp we determined that there was no rational
basis for the defendant to argue the he recklessly or negligently formed the belief that he
needed to defend himself when he left the scene of the crime, got a gun, returned, and then opened fire while entering the door. Kemp v. State, 348 Ark. 750, 763, 74 S.W.3d 224, 230
(2002). Likewise, in Butler v. State, as the majority points out, this court found that there
was no rational basis to offer an instruction on imperfect self-defense when there was no
evidence the victim had a weapon or threatened the victim. 2011 Ark. 369, at 3–5..
However, we also noted in that case that the defendant could have taken a route to avoid
the victim, he obstructed the victim’s vehicle, and he specifically stated that he was not
scared of the victim. Id.
It is clear, based on the facts in the present case, that there is at least a rational basis
to conclude that Schnarr negligently formed the belief that he needed to use deadly force
to defend himself. The circuit court therefore committed reversible error when it denied
Schnarr the instruction.
II. Public Trial
While I agree with the factors the majority has adopted, I disagree with the result.
The pertinent factors are (1) the length of the closure; (2) the significance of the proceedings
that took place while the courtroom was closed; and (3) the scope of the closure. Kelly v.
State, 6 A.3d 396, 407 (Md. Ct. Spec. App. 2010). In the present case, the courtroom was
closed two hours and thirty-seven minutes during a three-day jury trial. As the majority has
noted, constitutional protections still apply during voir dire; however, no evidence was
presented during that time. The courtroom here was either full, or nearly full, with the jury
panel. Lastly, the courtroom was only partially closed because a member of the press and
another member of the bar were watching the proceeding. When considering these factors,
the courtroom’s partial closure was de minimus and not grounds for a new trial. Three members of the defendant’s family were prevented from entering a partially closed
courtroom for less than three hours of a three-day trial during a non-evidentiary procedure.
The partial closing here does not rise to a level that would undermine the fairness of the
proceedings. I would, therefore, affirm the circuit court’s decision.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.