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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,

,

, 464. An

instruction should be rejected when there is no rational basis for giving it.

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,

,

, 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,

,

(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.

(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.

(b). A “reasonable belief” is the belief that “an ordinary and

prudent person would form under the circumstances in question.”

-

102(18) (Repl. 2024).

The question of justification is largely a matter of the defendant’s intent. Taylor v.

State,

,

(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.

. It is essentially a question of

fact to be decided by the trier of fact.

; see also Green,

, 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,

, 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,

,

, 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,

. The defendant then armed himself and went to the victim’s home where he killed him.

. 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,

, at

6–7,

, 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,

,

(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,

,

(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.

.

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.”

(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,

,

(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,

,

(citing Rainey v. State,

,

(1992)). Adequate provocation can occur when the victim is

armed or is attempting to commit violence toward the defendant.

. 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,

,

.

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,

,

(1992); see also Kail v. State,

,

(2000). An instruction should

be rejected when there is no rational basis for giving it. Furlow,

,

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.”

,

. Another witness testified that the two

men were arguing just before the victim raised his hands and Pollard shot him.

. No witness testified that the victim was armed with a gun.

. 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,

. 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,

. 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,

.

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,

,

. 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

(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

(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,

,

. 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,

,

. 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.

18