Doerhoff v. State

2023 Ark. 149

675 S.W.3d 877

Michael DOERHOFF, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-202

Supreme Court of Arkansas.

Opinion Delivered: October 26, 2023

Rehearing Denied January 11, 2024

Green & Gillispie, by: Chad M. Green, Little Rock, for appellant.

Tim Griffin, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

On August 19, 2022, a White County Circuit Court jury convicted appellant, Michael Doerhoff, of first-degree murder and sentenced him to a term of life imprisonment. On appeal, Doerhoff presents two points: (1) the circuit court erred in giving a non-model jury instruction regarding justification; and (2) the circuit court erred in refusing to give Doerhoff's proffered jury instruction regarding excessive force. We affirm.

I. Facts and Procedural History

This appeal stems from the death of Tommy Byrd on December 10, 2021. On January 31, 2022, Doerhoff was charged with capital murder. Doerhoff's jury trial was held August 16–19, 2022, and Doerhoff was convicted of the lesser-included offense of first-degree murder.

Because Doerhoff does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. Byrd lived with his brother Wayne in Bradford, less than a mile from Doerhoff's home, and both brothers socialized with Doerhoff on occasion. On

December 10, 2021, Wayne and Byrd drove to Doerhoff's home just before 11:00 a.m. so that Wayne could take photographs of a water tank that he had agreed to sell for Doerhoff. Approximately thirty minutes later, Wayne announced that he needed to return home and Doerhoff asked Byrd to stay and have a beer with him. Wayne testified that Byrd stayed behind with Doerhoff when he left, but at around 2:00 p.m., he heard sirens traveling in the direction of Doerhoff's home. Wayne went back to check on Byrd, at which time he saw Byrd lying on the ground and Doerhoff in handcuffs.

On February 8, 2022, Doerhoff was interviewed by detectives with the White County Sheriff's Office. During the interview, Doerhoff explained to detectives that on December 10, 2021, he and Byrd drank a couple of beers and, at some point during their conversation, Byrd said that he was ready to go home. Doerhoff claimed that he offered to drive Byrd home, and Byrd replied that he was a black belt and was going to "whip" Doerhoff and take his car. Doerhoff claimed that he picked up a nearby machete, fearing that Byrd might grab it and overpower him, and said, "[Y]ou're not whipping me, and you're not taking my car." Doerhoff told detectives that he followed Byrd off the porch and a struggle ensued after Byrd allegedly tried to take the machete from him. Doerhoff stated that he shoved Byrd to the ground and cut his throat, and after he felt Byrd stop struggling, Byrd's body twitched and Doerhoff "chopped him some more" to ensure that Byrd would not get up and attack him.

Detective Josh Biviano with the White County Sheriff's Office testified that Doerhoff made a total of eighteen phone calls—between 12:30 p.m. and 1:32 p.m.—to various individuals, a bail bondsman, a funeral home, the Bald Knob Police Department, and the White County Sheriff's Office. The jury heard a recording of the call Doerhoff had

made to the Bald Knob Police Department, during which he said that he had a "dead man in [his] yard" and that he needed someone to come "scrape this shit up." When Doerhoff was informed that his address was outside city limits, he replied, "I don't mind killing ’em but I don't bury nobody." Doerhoff was taken into custody when law enforcement arrived on the scene.

Dr. Christy Cunningham, an associate medical examiner at the Arkansas State Crime Lab, testified that Byrd sustained over twenty injuries—including the severing of his internal jugular vein, his external jugular vein, and his common carotid artery—and that the wounds on his hands and arms were consistent with defensive-type injuries. Dr. Cunningham testified further that, although several of the injuries could have individually been fatal, she was unable to determine the sequence of the injuries.

At trial, two jury instructions related to Doerhoff's defense of justification were in controversy. It was undisputed that Doerhoff was entitled to a justification instruction and that the model jury instruction, AMI Crim. 2d 705, did not accurately state the law because it had not been modified to account for the changes set forth in the "Stand Your Ground" law that became effective in July 2021. See Act 250 of 2021.

However, Doerhoff first argued that the modified version of the model jury instruction proffered by the State improperly imposed an affirmative duty to retreat when that duty had been eliminated by Act 250. Specifically, Doerhoff asserted that the language in the State's proffered instruction stating that he was not required to retreat if certain conditions were met, as set forth in Act 250, would imply to the jury that there was a statutory duty to retreat even though the legislature intentionally struck the previous language that imposed that duty. See Ark. Code Ann. § 5-2-607(b) (Supp. 2021). Doerhoff

argued that this was an inconsistency in the amended statute that rendered it ambiguous, and the language should therefore be construed in his favor pursuant to the rule of lenity. The circuit court declined to submit Doerhoff's proffered instruction removing all references regarding a duty to retreat and instead submitted to the jury a modified version of the model jury instruction that incorporated the entirety of the amended language contained in section 5-2-607(b) and the statutes that are referenced therein. The circuit court reasoned that it "is the law that the legislature created and it is the law that we're all having to live by."

Relying on Arkansas case law, Doerhoff then argued that, because the State would likely assert that justification was not a defense to the charged offense because he employed excessive force, he was entitled to a non-model jury instruction explaining that the State had the burden of proving that any alleged excessive portion of the force used is what caused Byrd's death. The State responded that the case law cited by Doerhoff did not support his position, and that the non-model instruction was unnecessary because the language from the model instruction accurately states the law. The circuit court declined to submit Doerhoff's proffered excessive-force jury instruction.

On August 19, 2022, Doerhoff was convicted and sentenced as described above. This timely appeal followed.

II. Law and Analysis

A. Standard of Review

A circuit court's ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Mackrell v. State , 2022 Ark. 93, at 3, 643 S.W.3d 12, 15. Abuse of discretion is a high threshold that does not simply require error in the circuit court's

decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Arnold v. State , 2022 Ark. 191, at 7, 653 S.W.3d 781, 787.

B. Points on Appeal

1. Justification jury instruction

For his first point on appeal, Doerhoff contends that the circuit court erred in giving a non-model jury instruction regarding justification. Specifically, Doerhoff asserts that the instruction submitted to the jury, a modified version of the model instruction incorporating the amended language in Arkansas Code Annotated section 5-2-607(b), did not correctly state the law because it implied that he had a duty to retreat even though Act 250 deleted the language that directly imposed that duty. Doerhoff contends that, for this reason, section 5-2-607(b) as amended is ambiguously worded in a way that could confuse the jury. Therefore, Doerhoff asserts that we should give effect to the legislature's intent in striking the previous statutory language imposing an affirmative duty to retreat, apply the rule of lenity to resolve the alleged ambiguity in his favor, and reverse the circuit court. The State responds that the circuit court did not abuse its discretion by modifying the jury instruction to reflect the language contained in section 5-2-607(b), because the model instruction did not accurately state the law in effect at the time of the offense. The State argues further that it is unnecessary to resort to statutory interpretation because the statute is unambiguous. We agree.

We have explained that there is a presumption that the model jury instruction is a correct statement of the law. Kinsey v. State , 2016 Ark. 393, at 11, 503 S.W.3d 772, 779. Therefore, non-model jury instructions are to be given only when the circuit court finds

that the model instructions do not accurately state the law or do not contain a necessary instruction on the subject at hand. Id. at 10–11, 503 S.W.3d at 778–79.

Here, it is undisputed that the model jury instruction, AMI Crim. 2d 705, did not accurately state the law. Prior to 2021, section 5-2-607 stated that "[a] person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force ... [b]y retreating." Ark. Code Ann. § 5-2-607(b)(1)(A) (Supp. 2019). At the time of the offense, Act 250 had amended section 5-2-607 to state that

A person is not required to retreat before using deadly physical force if the person:

(1) Is lawfully present at the location where deadly physical force is used;

(2) Has a reasonable belief that the person against whom the deadly physical force is used is imminently threatening to cause death or serious physical injury to the person or another person;

(3) Except as provided under § 5-2-606(b)(2)(B), is not the initial aggressor and has not provoked the person against whom the deadly physical force is used;

(4) Is not committing a felony offense of possession of a firearm by certain persons, § 5-73-103, with the firearm used to employ the deadly physical force, unless the person is in or at the

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