Davis v. State
| Decision Date | 08 October 2009 |
| Docket Number | No. CR 09–339.,CR 09–339. |
| Citation | 2009 Ark. 478,348 S.W.3d 553 |
| Parties | Adam DAVIS, Jr., Appellant,v.STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
James Law Firm, by: William O. “Bill” James, Jr., and Cheryl Barnard, Little Rock, for appellant.Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.DONALD L. CORBIN, Justice.
Appellant Adam Davis, Jr., appeals the judgment of the Garland County Circuit Court convicting him of the capital murder of his wife Marilyn Davis and the attempted first-degree murder of her friend Velma Davis. As Appellant was sentenced respectively to consecutive terms of life imprisonment without parole and thirty years plus two firearm enhancements of fifteen years each, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(a)(2). Appellant asserts five points for reversal. We affirm the judgment of conviction entered pursuant to a jury verdict.
Appellant testified at trial that on June 16, 2007, he was driving his truck on Malvern Avenue in Hot Springs when he saw his wife's car and plowed right into the back of it. He testified that he then exited his truck and shot his wife, Marilyn Davis. He stated he also shot her friend, Velma Davis, who was driving another vehicle in front of his wife's. Marilyn Davis died as a result of this shooting. Velma Davis survived but suffered injuries. Both Appellant and Appellee state in their briefs to this court that Appellant's intent or state of mind was the central or main issue litigated at trial.
Appellant's first point for reversal is that there was insufficient evidence from which the jury could have convicted him of capital murder and attempted first-degree murder. Specifically, Appellant contends that the State failed to prove that he acted with the requisite mental state for each offense.
The State initially responds that Appellant failed to preserve this argument for our review because his motion for directed verdict was untimely. Specifically, the State contends that rather than renewing his motion at the close of all the evidence, Appellant instead renewed his motion at the close of all testimony but prior to the introduction of several documents and the resting of his case. The State contends this does not meet strict compliance with Rule 33.1 of the Arkansas Rules of Criminal Procedure. In the alternative, the State contends there was sufficient evidence that Appellant acted with the requisite mental state for each offense.
Our review of the record before us reveals the following. At the close of the State's case, Appellant moved for a directed verdict on the charges of capital murder and attempted first-degree murder, arguing with detail and at length that there was insufficient evidence that Appellant possessed the mental state required for each charge. The circuit court denied the motions as to both charges. Appellant then presented several witnesses, including himself. Following Appellant's testimony, Appellant's counsel requested a bench conference to discuss the admission of four documents. The circuit court then recessed, with counsel for both sides going into chambers to discuss the documents. The State did not object, and the circuit court stated they would be received into evidence. These documents consisted of a protection order and three complaints for divorce that had been dismissed. Appellant then renewed his motions for directed verdict on both charges. The circuit court denied both motions. The court and counsel for both sides then immediately proceeded to discuss jury instructions. When the proceedings resumed in open court, Appellant introduced each of the four documents individually into evidence in the presence of the jury. With respect to each document, the circuit court stated that it would be admitted and received into evidence as defendant's exhibits 1 through 4 respectively. Appellant's counsel published the four exhibits to the jury and stated, “[W]e respectfully rest.” Appellant never renewed his motions for directed verdict after the documents were introduced into evidence, nor did he renew his motions after resting his case. The State announced it had no rebuttal, and the circuit court then announced the evidentiary case was closed and proceeded to instruct the jury.
To preserve a sufficiency-of-the-evidence challenge on appeal, a timely, clear, and specific motion for directed verdict must be made to the trial court. Ark. R.Crim. P. 33.1(c); see Foster v. State, 2009 Ark. 454, 2009 WL 3162291. Rule 33.1 sets out the procedure for making the motion and states in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
....
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
This court interprets Rule 33.1 strictly. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). We have said that the reasoning behind the specificity requirement in Rule 33.1 is that when the specific grounds are stated to the trial court, it can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. See Foster, 2009 Ark. 454. With respect to the timeliness requirement, this court has said in Cummings v. State, 315 Ark. 541, 546, 869 S.W.2d 17, 20 (1994):
The reason for the rule is obvious. As we stated in Rudd v. State, 308 Ark. 401, 405, 825 S.W.2d 565, 567 (1992):
[A] motion for a directed verdict at the close of the plaintiff's case has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law. In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of additional evidence, in which case he has waived any further reliance upon the former motion.
A motion for a directed verdict at the close of the entire case is rendered necessary, of course, by virtue of the automatic waiver that occurs when the defendant proceeds to mount a case.
This court has had occasion to rule that a renewal of a motion for directed verdict made after the jury has been charged or instructed is not timely. Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002); Claiborne v. State, 319 Ark. 602, 892 S.W.2d 511 (1995). This court has also had occasion to rule that a renewal of a motion for directed verdict made at the conclusion of the defendant's case-in-chief followed by a failure to renew after the State presents rebuttal evidence operates as a waiver. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994). However, we have not previously had before us a case such as the present one where a defendant failed to renew his motion after reopening his own case to admit additional documents into evidence.
We conclude that the reasoning we applied in Christian is likewise applicable here. The plain language of Rule 33.1 requires that the motion be renewed at the close of all the evidence. The failure to do so operates as a waiver of any question relating to the sufficiency of the evidence to support the jury's verdict. Cummings, 315 Ark. 541, 869 S.W.2d 17. We interpret Rule 33.1 strictly. Grady, 350 Ark. 160, 85 S.W.3d 531; Christian, 318 Ark. 813, 889 S.W.2d 717. Appellant's failure to renew his motion for directed verdict at the close of all the evidence, after he reopened his case to admit four documents into evidence, therefore operates as a waiver of his challenge to the sufficiency of the evidence to support the jury's verdict.
As his second point for reversal, Appellant contends that the trial court's refusal to give the proffered instruction for manslaughter with extreme emotional disturbance denied Appellant his constitutional right to present a complete defense. Appellant acknowledges that this court has taken the view that the provocation that incites the extreme emotional disturbance necessary for manslaughter is restricted to an event such as a physical fight, threat, or brandished weapon, occurring in the moment prior to the victim's death. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). However, Appellant urges this court to extend the time frame of the provocation eliciting the extreme emotional disturbance to include a history of ill treatment leading up to the final provocation. Appellant acknowledges that the trial court allowed him to present evidence of the history of discord in his marriage, but contends the refusal to have the jury instructed on manslaughter with extreme emotional disturbance denied him his constitutional right to present a complete defense.
The State first responds that this argument is not preserved for our review because Appellant has changed his argument on appeal from...
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