Davasher v. State

• Decision Date: 27 January 1992
• Docket Number: No. CR,CR
• Citation: 823 S.W.2d 863,308 Ark. 154
• Parties: Marc Stephen DAVASHER, Appellant, v. STATE of Arkansas, Appellee. 91-5.
• Court: Arkansas Supreme Court

Page 863

823 S.W.2d 863

308 Ark. 154

Marc Stephen DAVASHER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-5.

Supreme Court of Arkansas.

Jan. 27, 1992.

Daniel D. Becker, Hot Springs, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Marc Stephen Davasher, was convicted of capital murder of Loretta Hignight and her daughter, Bonnie Hignight Hamilton, and burglary of their home. Devasher raised eight points on appeal, contending the Trial Court erred by (1) not directing a verdict in his favor on the burglary charge because there was insufficient evidence of an unlawful entry, (2) not granting a motion to suppress evidence taken from the front porch of his mother's home, (3) not granting a motion to suppress evidence consisting of blood, saliva, hair, and other substances taken from his body because defense counsel was not notified that these samples would be taken, (4) refusing to grant a mistrial when a serologist referred to "suspected marijuana seeds" seized from his apartment, (5) allowing a forensic odontologist to testify he could not rule out the conclusion that bite marks located on Davasher's leg were inflicted by the victims' dog, (6) allowing two counselors to testify in violation of the psychotherapist-patient privilege, (7) not granting a motion for acquittal or a directed verdict on the ground of mental disease or defect, and (8) allowing a criminologist to testify that the victims' hairs were found on Davasher's clothes when there was no evidence as to how the witness had received the victims' hairs which were used for comparison.

We affirm the conviction. There was substantial evidence from which the jury could have concluded Davasher unlawfully entered the Hignight residence. Because the evidence was seized from his mother's home, Davasher has no standing to assert the alleged illegality of the search. We find no prejudice in the failure to notify defense counsel that body substance samples would be taken from Davasher. The admonishment given by the Trial Court to the jury cured any possible prejudice which might have resulted from the testimony regarding the suspected marijuana seeds. We further conclude the scientific testimony regarding dog bite identification was reliable. As to the psychotherapist-patient privilege, Davasher has waived the privilege by raising mental disease or defect as a defense. The Trial Court was not required to enter a judgment of acquittal on the ground of mental disease or defect, and we find substantial evidence to support the jury verdict on this issue. On the final point, we find no abuse of the Trial Court's discretion as the chain of custody and foundation for introduction of the physical evidence in question were sufficient.

On the morning of September 14, 1988, Bonnie Hamilton called the Hot Springs Police Department at approximately 8:30 and told Sergeant Harold Turner her ex-boyfriend was knocking on the front door of the home at 741 Linwood, and he had a knife. Hamilton's mother, Loretta Hignight, made a second call a few minutes later and told Turner her daughter's ex-boyfriend was breaking into their house and wanted to kill someone.

Officer Tim Hoover was the first to arrive at the scene where he found the front door of the house standing open. After searching the rooms, he went to the back door and saw the bodies of Hamilton and Hignight lying side by side in the back yard. He further observed severe cut wounds on the victims' heads and bodies. The family dog, Scooter, was found between the bodies, whimpering.

Marc Davasher lived in an apartment at 135 Watt Street, one block from the Hignight residence. One of Hamilton's friends, Paula Pendarvis testified Hamilton seemed scared and told her Davasher was "really strange." Another friend, Jerry Stouffer, testified he saw Hamilton and Davasher together only one week before the crime.

Around 9:00 a.m. on the 14th, Davasher went to a liquor store located three blocks away from the Hignight residence and bought a six pack of beer. The owner of the store stated Davasher seemed nervous. Davasher was interviewed briefly by a police officer after leaving the liquor store. He calmly told the officer he had been at the liquor store. He was holding a package of beer over his chest.

Davasher's mother became worried about her son that morning, so she called Chris Bonney, one of his counselors at the Garland County Mental Health Center. Mrs. Davasher told Bonney "Her son was in a bad way," and she asked Bonney to go with her to check on him. Mrs. Davasher and Bonney went to Davasher's apartment on Watt Street. By that time, several police cars had arrived at the Hignight's home on Linwood. Mrs. Davasher and Bonney went into the apartment where Bonney observed severe scratches on Davasher's chest and injuries on his hands.

Bonney then went outside and told Officer Larry Douglas that a patient living nearby, Marc Davasher, appeared very upset and was not taking his medication. Bonney described Davasher's physical condition and told the officer Davasher might have had something to do with the crime. Bonney came back into the apartment and told Davasher the police were coming to each house in the neighborhood to ask questions about a crime committed on Linwood. Mrs. Davasher then said "Let's go," and she picked up some clothes lying on the floor. Mrs. Davasher took her son to her house.

After arriving at her house, Mrs. Davasher called Norma Joyce, another counselor of Davasher at the Mental Health Center. She asked Joyce to come see her son. Joyce was afraid to go to the house alone because she believed Davasher might be violent. By this time, officers had received information that Davasher might have been Hamilton's ex-boyfriend. Officer Douglas and Investigator Birdsong accompanied Joyce to the house, and Mrs. Davasher let them inside to speak to Davasher. One officer stated Davasher looked like he had been crying. The officers observed fresh scratches on Davasher's chest and injuries on his hands. They observed Davasher's fingers were blistered from burns.

Birdsong asked Davasher if he would go to the station and answer some questions. At first Davasher agreed to go, but he later refused and was placed under arrest. When the officers were leaving the house with Davasher in custody, they seized some wet clothes lying on the front porch. The clothes included basketball shoes, blue jeans, blue shorts, white shorts, a black pullover shirt, and two pairs of underwear. Birdsong testified Mrs. Davasher told him the clothes belonged to her son. There was evidence that Davasher frequently stayed at his mother's house. In the back seat of the police car, Davasher told Officer Larry Selig, "Things didn't turn out the way they were supposed to," and "I read the Bible."

The day after the crime officers searched Davasher's apartment pursuant to a warrant. They seized an envelope with the name "Bonnie" written twice. Lisa Calhoun, a forensic serologist, obtained scrapings from Davasher's patio door which later revealed the presence of blood. A machete was found in bushes near the crime scene. No fingerprints were found on the knife, but it also tested positive for blood. Joyce testified Davasher once told her he owned a machete. Donald Smith, a criminologist with the Arkansas State Crime Laboratory, found evidence of Hignight's hair on Davasher's pullover sweater. He also found evidence of Hamilton's hair on Davasher's blue shorts.

The State filed a motion for blood, hair, saliva, and other body substance samples to be taken from Davasher. Included in the motion was a request for impressions and photographs of wounds located on Davasher's ankles, legs, and hands. The State requested this evidence to prove by scientific testimony that a wound located on Davasher's leg was a bite inflicted by the Hignights' dog, Scooter. Dr. Richard Glass, a forensic odontologist, was allowed to testify that he could not rule Scooter out as the dog that bit Davasher.

Davasher filed a notice to raise mental disease or defect as a defense, and he was sent to the State Hospital for evaluation. On November 9, 1988, Dr. David Pritchard determined that because Davasher suffered from paranoid schizophrenia, he could not cooperate with an attorney in the preparation of his defense and could not understand the nature of the charges against him. On December 1, 1989, Dr. Marino, a psychiatrist at the State Hospital, determined Davasher competent to proceed. Dr. marino also found that at the time of the commission of the offenses, Davasher lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law. On March 2, 1990, Davasher filed a motion to dismiss and a motion for judgment of acquittal due to mental disease or defect. Davasher also filed a motion to suppress evidence taken from his mother's residence and a motion to suppress evidence taken from his person. The motions were denied.

Davasher introduced medical evidence at trial that because he suffered from paranoid schizophrenia, he could not conform his conduct to the requirements of law or appreciate the criminality of his actions. There was no medical evidence to the contrary. Dr. Marino stated that, at the time of the offenses, Davasher was under the influence of psychotic symptoms. He further stated Davasher was tortured by religious delusions. Dr. Marino could not remember anyone at the State Hospital who disagreed with this conclusion. Dr. Hall, Director of Forensic Services at the State Hospital, testified Davasher suffered from paranoid schizophrenia and could not conform his conduct to the requirements of the law. Dr. Stephens, a clinical psychologist who examined Davasher initially at the State's instance, agreed with this diagnosis. Despite this evidence, the jury found Davasher guilty of capital murder and burglary and imposed a life without parole...