Doby v. State

537 S.W.3d 769

Willie Lee DOBY, Jr., Appellant

v.STATE of Arkansas, Appellee

No. CR–17–115

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 13, 2017

James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

BRANDON J. HARRISON, Judge

The State alleged that Willie Lee Doby shot Lewis Thompson during an argument on Doby's front porch in the wee hours one morning in August 2014. A St. Francis County jury convicted Doby of first-degree murder. Doby was then sentenced to twenty-seven years' imprisonment in the Arkansas Department of Correction. He appeals and argues five points why the circuit court should be reversed:

1. The circuit court erred in excluding a defense investigator pursuant to Arkansas Rule of Evidence 615.

2. The circuit court erred in permitting the State to bolster Khalilah Thompson's testimony by playing a recording of her prior consistent statement to the jury that was inadmissible hearsay.

3. The circuit court erred in denying Doby's mistrial motion after the jury heard Thompson's recorded statement that Doby used bleach to wash gunshot residue from his hands and hid the murder weapon.

4. The State produced insufficient evidence to support Doby's first-degree murder conviction.

5. The felony information was fatally flawed because the State "failed to set forth the principal language of the first-degree murder statute."

Doby's fourth point on appeal, which we must address first because of potential double-jeopardy concerns, is that the circuit court erred by denying his motion for a directed verdict because the evidence does not sufficiently support his murder conviction. Rankin v. State , 329 Ark. 379, 385, 948 S.W.2d 397, 400 (1997). At the end of the State's case Doby argued that the murder charge should not be submitted to the jury because "[t]he facts have not been established." This general statement does not preserve the motion for appellate review under our case law or Rule 33.1(b) of the Arkansas Rules of Criminal Procedure, which requires that a directed-verdict motion based on insufficient evidence must specify in what manner the evidence is deficient; a motion merely stating that the evidence is insufficient does not preserve the issue for appellate review. Merchant v. State , 2017 Ark. App. 576, at 3, 532 S.W.3d 136.

We now turn to Doby's first point on appeal and hold that the circuit court abused its discretion in excluding a member of the defense team under Arkansas Rule of Evidence 615. And because we cannot say that the error was harmless, we must reverse and remand the case for proceedings consistent with this opinion. To be clear, we remand the case for further proceedings rather than dismiss it because our reversal is not related to Doby's guilt or innocence. See generally United States v. Scott , 437 U.S. 82, 90–91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (The successful appeal of a judgment of conviction, except on the ground of insufficiency of the evidence to support the verdict, does not bar further prosecution on the same charge.).

I. Background

On the first day of trial, in front of the entire jury pool, the circuit court introduced the defendant and the parties' attorneys. The court instructed the jury on the basics of reasonable doubt and the charges Doby faced. The court next stated, "I would ask the State to, to call the witnesses who may be expected to testify in this matter." The prosecutor replied:

Micah Lacy, Leslie Summers, Khalilah Thompson, Travis Williams, Angelo Banks, Dominic Madden, Dr. Charles P. Kokes, and Angela Hirtzel, a criminologist with the Arkansas Crime Lab. In addition, various members of the Forrest City Police Department, including: Jeff Nichols, Cassandra Applewhite. These are officers, Your Honor. Darren Smith, Preston Gracy, Adrian Winfrey, Eric Varner, Morris McNutt.

Defense counsel then confirmed to the court that he did not expect to call any witness and that the prosecutor had "named all the possible witnesses." The court then asked the jurors, "Are any of you personally, or any immediate member of your family related to, or acquainted with, any of the attorneys, witnesses, or the Defendant?" Eventually, the jury was selected.

After the jury was empaneled but before opening arguments began, Doby requested a bench conference outside the jury's hearing. Defense counsel explained that he requested the conference because the prosecutor had asked that "the Rule" be applied to Investigator Speir, an investigator that the Public Defender Commission had hired to assist in Doby's defense. In defense counsel's words, Investigator Speir was his "work product ... an extension of me, as the attorney, doing the investigation." The prosecuting attorney denied that he intended to call Investigator Speir to testify about anything that could be considered work product. The prosecutor, in particular, stated:

[W]e have several instances here where people have said that things were said to them in the presence of other people that they considered to [be] intimidating. Now if I have to set about to prove that, I want the witnesses available to do it.

Next came this colloquy:

COURT : What does that have to do with Mr. Speir?

PROSECUTOR : Well, Mr. Speir would have been present at the time some of these conversations were had.

COURT : Is that speculation? Or is that something that you're pretty sure of?

PROSECUTOR : It's something I was told, not under oath, while this case was being tried. I have not been in a position to go put together that case. But in case I ever have to do, have to introduce testimony about that incident in this case, I want the witnesses available to do it with.

COURT : Mr. Coleman [defense counsel]?

DEFENSE : Once again, Your Honor, I don't know what he's talking about. But the thing is, even if the Court were to say, ‘Okay, well he might have some evidence,’ he was not listed as a witness. He was not voir dired to the jury. Nobody brought him up. He's been sitting here. He's here to assist me.

COURT : Do you agree with me that if John Doe was sitting back in the back that Mr. Long [prosecutor] could call him as a witness, if he wanted to? Whether he's subpoenaed or not?

DEFENSE : No, Your Honor. We, that's why we have witness lists ahead of time and we talk about the witnesses. You're opening it up—

COURT : No, I'm not opening anything. I'm just asking you a question.

DEFENSE : No, I don't think so. Especially cause you, that's why we voir dire the jury. Have you, do you know any of the witnesses? Do you know anything about the witnesses? And I'm just, like I said, neither one of us know what he's talking about. But the thing is, I do not think that there's anything he could talk about, if he's doing stuff.

COURT : ... Anybody else want to say anything?

PROSECUTOR : Judge, again, it has to do with conversations had in the presence of certain [of] our witnesses, about consequences of testifying. Mr. Speir was present at the time of the conversations. If this all has to come up, you have to make an evidentiary ruling based on it. Then he's going to be called as a witness. And at that point in time Mr. Coleman [defense counsel] will be able to say, "He's under the Rule, he can't testify." And he would be right. I'm trying to protect myself against that. And furthermore, most of it I find out about at noon, some of it I found out about this morning.

COURT : Okay. Well, of course I have no idea what you're talking about.

DEFENSE : Well, and Your Honor, I would ask for a continuance. Or, you know, if he's bringing up new issues, with new witnesses, that I haven't heard about either, then I, I have a right to know what kind of witness, evidence he's talking about. Mr. Long is talking about starting a different kind of case than one that I've been given Discovery.

COURT : What about, Mr. Long, the issue that where professionals are allowed to stay in court?

PROSECUTOR : What, what's, what's his job in this court?

COURT : I, I just asked you a question.

PROSECUTOR : I mean, I'm asking that rhetorically. I'm not being querulous, I'm asking that rhetorically. What's his job in this court? Is he going to write a brief?

DEFENSE : They've got their investigator sitting right there.

PROSECUTOR : No, he's not. How are we going to have him here and—

DEFENSE : Well, that's what—I'm not calling Mr. Speir as a witness.

COURT : How are you going to call him as a witness, if he's not been disclosed?

PROSECUTOR : How are we going to call? Alright. What if a witness says, "I'm not testifying because it's been suggested that if I do, I might be dead?" And one of the people that was allegedly present when that conversation was had is Mr. Speir. And I'm asking you for a mistrial and I call Mr. Speir as a witness and Mr. Coleman says, ‘I object.’

COURT : Alright, I'm going to leave the Rule in effect. Alright, let's call the jurors back in.

Investigator Speir was not allowed to remain in the courtroom. On the second day of trial defense counsel renewed his objection to Investigator Speir's being excluded from the trial. Then this colloquy occurred:

COURT : ... Mr. Coleman, the defense attorney, asked to come back here to put something on the record. So, Mr. Coleman, you may proceed.

DEFENSE : I want to renew my objection to my investigator, Steve Speir, being excluded under the Rule. Your Honor, he has been investigating for me, as I argued before, his work product. But the two witnesses, the two eye witnesses are supposed to testify today. And he's the person who interviewed them on my behalf. And I need him there to help me prepare the cross, after they testify. And it's denying my client effective assistance of counsel. And I want the Court to change its ruling.

COURT : Alright. Mr. Easley.

PROSECUTOR : Your Honor, as was argued yesterday, in front of the Court, we have reason to believe that Mr. Speir was a witness to

...