{ "id": 1453665, "name": "Roy Eldridge DAVIS v. STATE of Arkansas", "name_abbreviation": "Davis v. State", "decision_date": "1995-02-13", "docket_number": "CR 94-521", "first_page": "460", "last_page": "468", "citations": [ { "type": "official", "cite": "319 Ark. 460" }, { "type": "parallel", "cite": "892 S.W.2d 472" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "267 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719802 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "272" }, { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/ark/267/0264-01" ] }, { "cite": "303 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882732 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0030-01" ] }, { "cite": "318 Ark. 358", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455797 ], "weight": 4, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0358-01" ] }, { "cite": "459 U.S. 975", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6447584, 6447201, 6448132, 6447271, 6447977, 6447850, 6447498, 6448236, 6447117, 6447729, 6448337, 6447355 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/0975-06", "/us/459/0975-02", "/us/459/0975-10", "/us/459/0975-03", "/us/459/0975-09", "/us/459/0975-08", "/us/459/0975-05", "/us/459/0975-11", "/us/459/0975-01", "/us/459/0975-07", "/us/459/0975-12", "/us/459/0975-04" ] }, { "cite": "276 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751504 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0434-01" ] }, { "cite": "289 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875319 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "13" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ark/289/0007-01" ] }, { "cite": "304 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880967 ], "weight": 4, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0381-01" ] }, { "cite": "316 Ark. 724", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907723 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "726" }, { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0724-01" ] }, { "cite": "318 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455729 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "109" }, { "page": "832" }, { "page": "109" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0107-01" ] }, { "cite": "319 Ark. 332", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453676 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0332-01" ] }, { "cite": "284 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878611 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0247-01" ] }, { "cite": "310 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898893 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0119-01" ] }, { "cite": "317 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443813 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0322-01" ] } ], "analysis": { "cardinality": 662, "char_count": 12704, "ocr_confidence": 0.855, "pagerank": { "raw": 2.6357514887314767e-07, "percentile": 0.8226249870166176 }, "sha256": "9e9712e81851ad0cd0da5e81fea1c2956991447b016af6c5be51da86744938d4", "simhash": "1:c3e8c16e620edf93", "word_count": 2150 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Roy Eldridge DAVIS v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nThis court previously granted a motion for belated appeal filed by appellant, Roy Eldridge Davis. Davis v. State, 317 Ark. 322, 877 S.W.2d 93 (1994) (per curiam). Thus, appellant appeals a judgment of the Pulaski County Circuit Court entered in 1988 pursuant to a jury verdict convicting him of first degree murder and sentencing him as a habitual offender to life imprisonment in the Arkansas Department of Correction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). For reversal, appellant asserts four points of error. We find no merit and affirm.\nSUFFICIENCY OF THE EVIDENCE\nThe third of the four arguments raised in appellant\u2019s brief is that the trial court erred in denying his motion for directed verdict. This argument is a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Preservation of an appellant\u2019s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Id.; Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).\nAppellant moved for a directed verdict at the close of the state\u2019s case and again at the close of all the evidence. Both motions, however, were general motions and did not state a specific basis for the motion. The first motion did not even state that it was based on insufficiency of the evidence.\n[PROSECUTOR]: The state rests, your Honor.\nTHE COURT: All right.\n[DEFENSE]: Your Honor, I move for a directed verdict.\nTHE COURT: That will be denied.\n[DEFENSE]: I call Gary Lawrence.\nThe second motion was simply a renewal of the first motion, although counsel and the court did engage in a review of some of the evidence.\nThis court has stated repeatedly that a motion for directed verdict is treated as a challenge to the sufficiency of the evidence and therefore requires that the movant apprise the trial court of the specific basis on which the motion is made. See, e.g., Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). This court has held \u201c[i]f a motion for directed verdict is general and does not specify a basis for the motion, it will be insufficient to preserve a specific argument for appellate review.\u201d Walker, 318 Ark. at 109, 883 S.W.2d at 832. In so holding, this court reasoned that \u2018\u201cwhen specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.\u2019 \u201d Id. at 109, 883 S.W.2d at 832, (quoting Brown, 316 Ark. at 726, 875 S.W.2d at 830).\nThe motions made by appellant in the instant case were wholly inadequate to apprise the trial court of the basis of the motion. Indeed, no basis was given at all. Appellant has therefore not preserved this argument on appeal.\nMISTRIAL\nAppellant moved for a mistrial on the grounds that the jury was deadlocked. The trial court denied the motion and instructed the jury in accordance with AM Cl 2d 8103, sometimes referred to as the \u201cAllen instruction\u201d or the \u201cdynamite instruction.\u201d Appellant argues a deadlocked jury is an \u201coverruling necessity\u201d that compels the granting of a mistrial pursuant to Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). While recognizing that a mistrial is an extreme and drastic remedy within the trial court\u2019s discretion, appellant contends a mistrial is appropriate in his case because justice could not be served by continuing the trial.\nAppellant\u2019s argument is wholly without merit. The decision whether to declare a mistrial due to a jury\u2019s inability to reach a verdict is discretionary with the trial court, and is not reversed absent an abuse of that discretion. Shaw, 304 Ark. 381, 802 S.W.2d 468 (citing McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986)). Contrary to appellant\u2019s argument, Shaw does not mandate that a mistrial be declared in every case where the jury indicates it is deadlocked.\nThe jury in the instant case deliberated for two hours and sent a note to the judge that they were locked. Appellant moved for a mistrial at this point. The trial court inquired of the jury foreperson as to the numerical count of the vote, instructing the foreperson not to indicate whether the numbers were for guilty or not guilty. The vote was ten to two, and the foreperson indicated the minority view was firm. The trial court then asked the foreperson if there was anything he thought the court could do, or any instructions the court could give, to encourage the jury to reach an agreement. The foreperson responded he was unsure since he did not know what the instructions would be. The trial court then read AMCI 2d 8103 to the jury. The jury retired again to deliberate and returned a guilty verdict 15 minutes later.\nOn these facts, we cannot say the trial court abused its discretion in denying the mistrial. \u201cDetermining when the jury cannot agree is a matter over which the trial court has considerable discretion.\u201d McGirt v. State, 289 Ark. 7, 13, 708 S.W.2d 620, 623 (1986). Rather than granting a mistrial, the trial court gave the Allen instruction. It is well-settled that a trial court may give the Allen instruction. Walker v. State, 276 Ark. 434, 637 S.W.2d 528, cert. denied, 459 U.S. 975 (1982). In Walker, this court stated that it is not error to instruct the jury to perform its duty to return a verdict or to comment on the ills attendant upon a disagreement, so long as the trial court does not comment on the weight of the evidence, change the prior instructions, or instruct a juror to yield his convictions.\nIt was within the trial court\u2019s discretion to determine if the jury could not agree. McGirt, 289 Ark. 7, 708 S.W.2d 620. Here, the trial court made the determination to deny the mistrial and to give AMCI 2d 8103. There is nothing on this record to indicate justice required a mistrial be granted. Therefore, we find no abuse of discretion in denying the mistrial.\nEVIDENTIARY RULINGS\nBecause we did not review the sufficiency of the evidence, we recite the gist of the evidence here to allow an understanding of the evidentiary points raised herein. Appellant was convicted of the first degree murder of Joseph Brown. Brown died from gunshot wounds he suffered at the residence of his girlfriend, Audrey Palmer. Audrey Palmer testified appellant was her ex-boyfriend and telephoned her at her house on the night of the murder threatening to burn down her house. When the lights went out at Palmer\u2019s house later that evening, she reported a prowler at her home. The police responded to her call and witnessed appellant acting in a suspicious manner about two blocks from Palmer\u2019s house. Brown was in the backyard of Palmer\u2019s house near the breaker box when Palmer\u2019s son Kevin witnessed appellant also in the backyard. Kevin Palmer testified he heard shots and then saw appellant jump the backyard fence. Appellant makes three basic assignments of error under this point: (1) the exclusion of testimony by defense witnesses Joann Milton and Evelyn Lamar concerning impeachment of state\u2019s witnesses Audrey and Kevin Palmer; (2) the allowance of leading questions of Audrey Palmer concerning her description of a gun she saw in appellant\u2019s possession; and (3) the. exclusion of a police officer\u2019s opinion testimony concerning gunshot residue test results.\nAs for the testimony of Joann Milton, appellant does not identify the testimony that was excluded by the trial court. Our law is well established that in order to challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so this court can review the trial court\u2019s decision, unless the substance of the evidence is apparent from the context. ARE Rule 103(a)(2); Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994). In the instant case, appellant made no proffer of what Ms. Milton\u2019s testimony would be and we cannot tell what the specifics of her testimony would be from the context of the questions. Accordingly, this argument is not preserved for our review. We observe, however, that even assuming arguendo that any error occurred, we cannot say appellant suffered any prejudice. Ms. Milton disobeyed the trial court\u2019s sustaining of one objection and stated that \u201cKevin didn\u2019t like Roy.\u201d Obviously then, the jury heard testimony of Kevin Palmer\u2019s possible bias against appellant.\nAs for the excluded testimony of Evelyn Lamar, the trial court sustained the state\u2019s objection to the form of a question that called for hearsay, although appellant\u2019s counsel stated he was offering the testimony for credibility purposes. Appellant\u2019s counsel never rephrased the question into an acceptable form and cannot complain of his failure to do so now. Moreover, appellant could not have impeached Audrey Palmer with the testimony of Lamar as to any alleged prior inconsistent statement by Palmer because Palmer never testified to making any statements to Lamar. ARE Rule 613. Appellant argues he should have been allowed to recall Palmer for the purpose of opening the door to Lamar\u2019s impeaching testimony. The record does not contain a proffer from which we can determine the statements appellant alleges Palmer may have made and whether she would have denied making them; nor can we determine what Lamar would have said that would have impeached Palmer. Accordingly, this argument is not preserved for our review. Patterson, 318 Ark. 358, 885 S.W.2d 667.\nWith regard to Palmer\u2019s testimony concerning the gun she alleged appellant to have possessed, the trial court permitted a very few leading questions on re-direct examination in order for her to determine that the gun was a revolver. Palmer was asked what kind of gun it was, and she stated she did not know because she did not know anything about guns. The trial court then allowed the prosecutor to \u201clead a little bit\u201d by asking if the gun had a round cylinder where the bullets went. Rulings on evidence are within the broad discretion of the trial court and are not reversed absent a manifest abuse of that discretion. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). Rule 611(c) of the Arkansas Rules of Evidence permits leading questions on direct examination only \u201cas may be necessary to develop [witness\u2019s] testimony.\u201d Given Palmer\u2019s admission she did not know anything about guns, we cannot say the trial court abused its discretion in allowing the very few leading questions to develop her testimony by determining what kind of gun she testified she saw.\nWith respect to the police officer\u2019s opinion as to the results of the gunshot residue test, the trial court ruled appellant could not question the police officer because he did not perform the test. The test was performed by Gary Lawrence of the Arkansas State Crime Laboratory; the police officer gathered the evidence so that Lawrence could perform the actual test. Lawrence was available to testify at trial, and indeed did testify as a witness called by appellant. Lawrence was thus available to appellant for testimony on the test results. We cannot say the trial court abused its discretion in refusing to allow the police officer\u2019s testimony as to the results of a test the officer did not conduct.\nHABITUAL OFFENDER STATUS -\nApproximately two months prior to trial and after appellant refused a negotiated plea, the trial court allowed the state to amend the information to charge appellant as a habitual offender. Appellant objected to the amendment of the information, arguing \u201cI object to it at this \u2014 because of the late date on it.\u201d The trial court ruled it would allow the amendment, even up until the time of trial, because it affected only punishment, and had no effect on the quality or quantity of proof as to guilt or innocence.\nOn appeal, appellant argues the trial court erred in allowing the amendment after the conclusion of plea negotiations. Suffice it to say, as this court stated in Wright v. State, 267 Ark. 264, 272, 590 S.W.2d 15, 21 (1979), \u201cthe amendment was timely filed, and it was not error for the prosecutor to file the habitual offender charge when the appellant withdrew from plea negotiations.\u201d (Citations omitted).\nCOMPLIANCE WITH RULE 4-3(h)\nIn accordance with Ark. Sup. Ct. R. 4-3(h), the transcript has been examined for prejudicial errors objected to by appellant but not argued on appeal and we conclude no such errors occurred.\nThe judgment is affirmed.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "A.J. Kelly, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Roy Eldridge DAVIS v. STATE of Arkansas\nCR 94-521\n892 S.W.2d 472\nSupreme Court of Arkansas\nOpinion delivered February 13, 1995\nA.J. Kelly, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kent G. Holt, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0460-01", "first_page_order": 494, "last_page_order": 502 }