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                SUPREME COURT OF ARKANSAS
                                       No.   CR-15-68

LATAVIOUS D. JOHNSON                              Opinion Delivered   April 14, 2016
                    APPELLANT
                                                  APPEAL FROM THE LEE COUNTY
V.                                                CIRCUIT COURT
                                                  [NO. 39CR-2012-32]

STATE OF ARKANSAS                                 HONORABLE L.T. SIMES II, JUDGE
                                 APPELLEE
                                                  AFFIRMED.


                          PAUL E. DANIELSON, Associate Justice


       Appellant Latavious D. Johnson was convicted by a Lee County jury of the capital

murder of Barbara A. Ester and sentenced to death. Because the death penalty was imposed

in this case, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2015).

Johnson raises the following points on appeal: (1) the circuit court erred in denying a jury

instruction on the extreme-emotional-disturbance formulation of manslaughter pursuant to

Arkansas Code Annotated section 5-10-104(a)(1) (Repl. 2013); and (2) the circuit court erred

in refusing to grant access to certain Arkansas Department of Correction (“ADC”) records.

Johnson also discusses other objections made at trial, although he does not ask for reversal on

these points. We have reviewed the record and Johnson’s arguments on appeal, find no error,

and affirm.

       On January 20, 2012, Barbara Ester, a correctional officer at the East Arkansas

Regional Unit, approached Johnson, an inmate, about wearing contraband shoes. Johnson
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told Officer Ester that the shoes were not contraband. Officer Ester left and came back with

Lieutenant Steven Lane. The officers attempted to confiscate the shoes. Johnson then stabbed

Officer Ester with a “shank” three times. Officer Ester was taken to the hospital where she

died.

        At the time of the stabbing, Johnson was serving a life sentence for murder in the first

degree. Johnson was charged with the capital murder of Officer Ester pursuant to Arkansas

Code Annotated section 5-10-101. During his trial in the Lee County Circuit Court,

Johnson testified on his own behalf. During his testimony, he admitted stabbing Officer Ester

but denied any intent to kill her. The jury convicted Johnson of capital murder and sentenced

him to death. Because he was sentenced to death, the circuit court ordered the circuit clerk

to file a notice of appeal on Johnson’s behalf pursuant to Arkansas Rule of Appellate

Procedure–Criminal 10(a).

                                   I. Manslaughter Instruction

        For his first point on appeal, Johnson argues that the circuit court erred in denying an

instruction on the extreme-emotional-disturbance formulation of manslaughter pursuant to

Arkansas Code Annotated section 5-10-104(a)(1), which states in pertinent part:

               (a) A person commits manslaughter if:

              (1)(A) The 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.

               (B) The reasonableness of the excuse is determined from the viewpoint of a
        person in the actor’s situation under the circumstances as the actor believed them to
        be.


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Specifically, Johnson argues that the instruction on manslaughter should have been allowed

because there was a rational basis for a finding of extreme emotional disturbance for which

he had a reasonable excuse to stab Officer Ester.

       To support this argument, Johnson alleges that the actions of the ADC personnel and

the living conditions at the facility provide sufficient evidence of a provocation that

constituted a reasonable excuse for his actions. He relies on the following assertions: (1) the

prison environment was very difficult, in particular “tensions inherent in hundreds of people

involuntarily crammed together and deprived of all human autonomy are extreme”; (2) his

prized possession was a pair of shoes that was falsely alleged to be contraband; and (3) inmates

are faced with prison guards with violent and arrogant attitudes.

       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. Fincham v. State, 2013

Ark. 204, 427 S.W.3d 643 (citing Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006)).

A trial court is required to give a jury instruction if there is some evidence to support it. Id.

In determining if the circuit court erred in refusing an instruction in a criminal trial, the test

is whether the omission infects the entire trial such that the resulting conviction violates due

process. Id. (citing Gilcrease v. State, 2009 Ark. 298, 318 S.W.3d 70; Hickman v. State, 372

Ark. 438, 277 S.W.3d 217 (2008); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002)).

It is reversible error to refuse to instruct on a lesser-included offense when there is even the

slightest evidence to support the instruction. Fincham (citing Boyle v. State, 363 Ark. 356, 214



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S.W.3d 250 (2005); Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005)). 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 (citing Jackson v. State,

375 Ark. 321, 290 S.W.3d 574 (2009)). We will affirm a trial court’s decision to not give a

lesser-included-offense instruction if there is not a rational basis for giving the instruction. Id.;

see also Ark. Code Ann. § 5-1-110.

       Manslaughter adds another element to first-degree and second-degree murder—the

requirement that the defendant is acting under extreme emotional disturbance. Fincham, 2013

Ark. 204, 427 S.W.3d 643 (citing Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992)). A

defendant is not entitled to an instruction on extreme-emotional-disturbance manslaughter

unless there is a factual basis showing that the defendant killed the victim “in the moment

following ‘provocation in the form of physical fighting, a threat, or a brandished weapon.’”

Bankston v. State, 361 Ark. 123, 129, 205 S.W.3d 138, 143 (2005) (quoting Kail v. State, 341

Ark. 89, 94, 14 S.W.3d 878, 880–81 (2000)).

       The question here is whether there is a factual basis showing that Johnson caused

Officer Ester’s death while under the influence of extreme emotional disturbance and that

there was a reasonable excuse for his actions. Johnson testified that while he did stab Officer

Ester, the thought of her dying never crossed his mind. He said that there are “many

psychological things” to deal with in the ADC. He stated that he knew it was not right to

attack Officer Ester with a knife and that he should not have stabbed her. He also stated that

the ADC could put him on death row or give him three more life sentences, but he still


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would not change. There were times on the stand that Johnson said that he thought the trial

was a waste of time.

       We find no factual basis to show that Johnson killed Officer Ester in a moment

following provocation. He argues that the provocation that caused him to kill Officer Ester

was when she came to his barracks with Lieutenant Lane to confiscate his shoes. This

“provocation” was not in the form of physical fighting, a threat, or a brandished weapon as

described in Bankston, 361 Ark. at 129, 205 S.W.3d at 143. See also Rainey v. State, 310 Ark.

419, 837 S.W.2d 453 (1992); Whittier v. State, 84 Ark. App. 362, 141 S.W.3d 924 (2004).

       Moreover, Johnson’s own testimony partially contradicted his argument that he was

provoked. Specifically, he stated that he had retrieved the “shank” from one of his hiding

places after Officer Ester had gone to get Lieutenant Lane. This was before they attempted

to confiscate Johnson’s shoes. His argument that prison is stressful and that a reasonable

person would do the same thing in his situation is not convincing. Johnson has not shown

any rational basis to warrant an instruction of manslaughter; therefore, the circuit court did

not abuse its discretion in denying Johnson’s proffered jury instruction.

                                  II. Disclosure of Information

       For his second point on appeal, Johnson argues that the circuit court erred by denying

him access to evidence regarding general violence in the East Arkansas Regional Unit. At the

pretrial hearing on this issue, his counsel argued that the evidence is relevant to show that the

East Arkansas Regional Unit was an “out of control hell-hole,” which demonstrates the type




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of environment that Johnson was exposed to at the time of the stabbing. Johnson argues that

the information was discoverable under Arkansas Rules of Criminal Procedure 17.3 and 17.4.

       Rule 17.3 states as follows:

              (a) The prosecuting attorney shall use diligent, good faith efforts to obtain
       material in the possession of other governmental personnel which would be
       discoverable if in the possession or control of the prosecuting attorney, upon timely
       request and designation of material or information by defense counsel.

               (b) If the prosecuting attorney’s efforts are unsuccessful, the court shall issue
       suitable subpoenas or orders to cause such material to be made available to defense
       counsel where the material or other governmental personnel are subject to the
       jurisdiction of the court.

Rule 17.4 involves discretionary disclosures:

              (a) The court in its discretion may require disclosure to defense counsel of other
       relevant material and information upon a showing of materiality to the preparation of
       the defense.

               (b) The court may deny disclosure authorized by this Article if it finds there is
       a substantial risk to any person of physical harm, intimidation, bribery, economic
       reprisal, or unnecessary annoyance or embarrassment, resulting from such disclosure,
       and that the risk outweighs any usefulness of the disclosure to defense counsel.

Rule 17.4(a) provides the court with discretion to require the disclosure of material once the

defendant shows that the material is relevant to the preparation of the defense. Johnson relies

on the holdings of Lockett v. Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104

(1982), and Skipper v. South Carolina, 476 U.S. 1 (1986), to support his argument that the

information he requested was relevant and material to the preparation of his defense.

       The Eighth and Fourteenth Amendments require that the sentencer, in all but the

rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect



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of a defendant’s character or record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death. Lockett, 438 U.S. 586. “[I]n capital

cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires

consideration of the character and record of the individual offender and the circumstances of

the particular offense as a constitutionally indispensable part of the process of inflicting the

penalty of death.” Id. at 604 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)).

The focus of mitigating circumstances is on the defendant and on the crime. Id. Nothing

limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the

defendant’s character, prior record, or the circumstances of his offense. Id. at 605 n.12.

Equally clear is the corollary rule that the sentencer may not refuse to consider or be

precluded from considering “any relevant mitigating evidence.” Skipper, 476 U.S. at 4

(quoting Eddings, 455 U.S. at 114).

       In Lockett, the United States Supreme Court reversed a death sentence because the

Ohio statute at issue generally precluded consideration of the defendant’s age and his minor

role in the offense. In Skipper, the United States Supreme Court held that proffered

testimony regarding the defendant’s good behavior during the time he spent awaiting trial was

relevant evidence in mitigation of punishment. In Eddings, the Court reversed a death

sentence because the trial court had improperly precluded evidence of the defendant’s

unhappy childhood as mitigating evidence. These cases found that the information requested

could be used as mitigating evidence because it was relevant to the defendant’s character,

record, or the offense.


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       In this case, the circuit court granted the following disclosures of information requested

by Johnson:

       1.     Copies of all disciplinary allegations made against any inmate by the [victim],
              Officer Barbara Ester, from January 1, 2007, to January 20, 2012, and all
              documents relating to the eventual dispositions thereof;

       2.     All reports surrounding the January 20, 2012 incident involving the death of
              Officer Ester;

       3.     Copies of the Institutional file, including office of personnel file (OPF), training
              file, and background file for [Officer Ester and] all other officers who may
              testify in this case; and

       4.     All documents or electronically stored information regarding complaints of
              whatever kind made against [Officer Ester or] any officer who is a witness in
              matters regarding the death of Officer Ester, and Officer Ester herself.

The circuit court denied certain discovery requests because there was no showing that the

evidence was relevant or material to Johnson or to the crime. The circuit court denied the

following discovery requests:

       1.     Any reports, files, letters, memoranda, complaints, disciplinary reports, or
              information related to security problems involving the care and protection of
              inmates at EARU from January 1, 2007, to January 20, 2012;

       2.     Any reports, files, letters, memoranda, complaints, disciplinary reports, or
              information, in whatever form it may exist, related to allegations of criminal
              activity, false information, official misconduct or negligence by any ADC
              personnel including guards, administrators, and the contractors at EARU from
              January 1, 2007, to January 20, 2012;

       3.     All After Action Reviews for all incidents of group disturbance, homicide,
              assault, bribery of a correctional officer, indictment of a correctional officer,
              smuggling of contraband or violation of civil rights at EARU for each year
              from January 1, 2007, to January 20, 2012;




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       4.     Any reports, files, letters, memoranda, complaints, disciplinary reports, or
              information in whatever form it may exist, related to attacks on any inmate or
              inmates by any other inmate or inmates at EARU from January 1, 2007, to
              January 20, 2012;

       5.     Any reports, files, letters, memoranda, complaints, disciplinary reports, or
              information related to any changes made regarding security as it relates to the
              care and protection of inmates at EARU from January 1, 2007, to January 20,
              2012; and

       6.     All information regarding the policies in effect at EARU on January 20, 2012,
              concerning the “planned response” of all employees at EARU on any
              emergency situation.

       Johnson argues that this information that the circuit court denied was necessary to the

preparation of his defense, including the penalty phase. As pointed out by the State in the

hearing on the discovery issues, Johnson still has to “get over the first evidentiary barrier and

that is relevance.” In response, counsel for Johnson stated that the evidence was relevant to

show that the circumstances at the facility “were so distressing and violent and troubling in

terms of the conditions in incarceration that . . . it was necessary for Mr. Johnson to have a

self-defense weapon.”

       Unlike in Lockett, Skipper, and Eddings, the discovery requested by Johnson is unrelated

to the defendant’s character, his record, or the circumstances of the offense. Rule 17.4

requires Johnson to show that the discovery requests were relevant and material to the

preparation of his defense. At that point, it is in the circuit court’s discretion to require

disclosure. The decision to require disclosure is to be exercised on a case-by-case basis,

subject to limited review on appeal. See Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102

(1982), cert. denied, 460 U.S. 1022 (1983). We find that Johnson failed to meet the


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requirements of Rule 17.4 and therefore hold that the circuit court did not abuse its discretion

by denying disclosure.

                   III. Appellate Review Pursuant to Rule 4-3(i) and Rule 10

       The record in this case has been reviewed for reversible error pursuant to Arkansas

Supreme Court Rule 4-3(i) (2015), and none has been found. In addition, we have

conducted a mandatory review of the record as required by Rule 10(b) of the Arkansas Rules

of Appellate Procedure–Criminal (2015):

             (i) pursuant to Rule 4-3(h) of the Rules of the Supreme Court and Ark. Code
       Ann. § 16-91-113(a), whether prejudicial error occurred;

              (ii) whether the trial court failed in its obligation to bring to the jury’s attention
       a matter essential to its consideration of the death penalty;

              (iii) whether the trial judge committed prejudicial error about which the
       defense had no knowledge and therefore no opportunity to object;

              (iv) whether the trial court failed in its obligation to intervene without
       objection to correct a serious error by admonition or declaring a mistrial;

               (v) whether the trial court erred in failing to take notice of an evidentiary error
       that affected a substantial right of the defendant;

             (vi) whether the evidence supports the jury’s finding of a statutory aggravating
       circumstance or circumstances; and

              (vii) whether the sentence of death was imposed under the influence of passion,
       prejudice, or any other arbitrary factor.

No reversible error was determined to exist under these factors.

       Affirmed.

       Jeff Rosenzweig; and Daggett, Donovan and Perry, by: Joe R. Perry, for appellant.

       Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., Brooke Jackson, Ass’t
Att’y Gen., and David R. Raupp, Senior Ass’t Att’y Gen., for appellee.


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