Doll v. State
| Citation | 598 S.W.3d 47,2020 Ark. App. 153 |
| Decision Date | 04 March 2020 |
| Docket Number | No. CR-19-431,CR-19-431 |
| Parties | Michael Landon DOLL, Appellant v. STATE of Arkansas, Appellee |
| Court | Court of Appeals of Arkansas |
James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., Little Rock, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
Michael Landon Doll appeals his convictions by a Benton County jury of attempted capital murder, aggravated residential burglary, and battery in the first degree. He argues that the circuit court erred by (1) disqualifying a juror whose primary language is Spanish; (2) allowing two lay witnesses to offer opinions as experts; (3) allowing the State to challenge his testimony that his divorce from his previous wife was amicable; and (4) allowing the State to comment in closing argument that no mental-health experts had testified for the defense. We affirm.
After a two-year marriage, Doll and his wife Brenda went through a contentious divorce in Jasper, Missouri. After a hearing in February 2016 during which the court ruled in Brenda’s favor on the disputed issue, Doll was very angry and verbally threatened Brenda as she was leaving the courthouse, stating, "[y]ou'll be dead before the end of the day." Because of her escalating fear of Doll, Brenda quit her job, changed her last name, and moved to Bella Vista, Arkansas. Very few people knew of Brenda’s move, and she wore disguises in public, changed her phone number, and had an alarm system and surveillance cameras installed at her home. However, Doll eventually learned that Brenda was using a new last name and living in Bella Vista.
On June 7, 2016, Brenda went home for lunch and to walk her dog. As she was leaving to return to work, she saw Doll approaching her home. She went back inside, bolted the door, and called 911. Hearing Doll kicking her front door, Brenda retrieved and fired a gun in hopes of alerting Doll that she was armed. Rather than scaring him away, however, Doll broke into her home by throwing a large rock through the glass pane of the door. When Brenda saw Doll standing in her home holding a gun, she fired her gun again and ran to her bedroom closet. Doll then began firing his gun. During the incident, Brenda fired five shots, and Doll emptied the clip of his .40-caliber handgun as he was firing at her. While Brenda was in the closet, a bullet grazed her underneath her right breast.
Video-surveillance footage from Brenda’s home shows that after emptying his gun, Doll ran from Brenda’s home back to his truck. He then rammed Brenda’s car down an embankment into a ravine, where it rested leaning against a telephone pole, before fleeing back to Missouri.
On July 25, 2016, Doll was charged with one count each of attempted capital murder, aggravated residential burglary, and battery in the first degree. He was tried by a jury on October 30 through November 1, 2018 and found guilty of all three charges. The jury recommended sentences of forty years, forty years, and twenty years, respectively, which the court ordered to run consecutively. Doll filed a timely notice of appeal, and this appeal followed.
The question of a juror’s qualification based on imperfect knowledge of English is within the circuit court’s sound discretion, and this court will not reverse absent "flagrant abuse" of that discretion. Dillon v. State , 317 Ark. 384, 392, 877 S.W.2d 915, 919 (1994) (citing Scifres v. State , 228 Ark. 486, 489, 308 S.W.2d 815, 817 (1958) ). The Scifres court noted:
It is not necessary, of course, that a juror should be a scholar and understand the definition of every word used in the course of a trial by witnesses, counsel, and the court. It is sufficient if he is conversant with the language to the extent that he can understand in substance the testimony of witnesses and the argument of counsel.... Jurors must be presumed to possess the qualifications required[.]
228 Ark. at 489, 308 S.W.2d at 817. (internal citations omitted).
A defendant does not have a right to the service of any specific juror but only the right to a competent, fair, and impartial jury. E.g. , Jones v. State , 318 Ark. 704, 713, 889 S.W.2d 706, 710 (1994). To demonstrate prejudice resulting from the disqualification of a juror for cause, Doll must show that "some biased or incompetent juror was thrust upon" him in the place of the excused juror. Owens v. State , 354 Ark. 644, 661, 128 S.W.3d 445, 456 (2003). Thus, "it is difficult to imagine a case where the judge had excused a juror from further service on the regular panel which would afford any defendant just cause of complaint." Id. , 128 S.W.3d at 456 (quoting Sullivan v. State , 163 Ark. 11, 14, 258 S.W. 643, 644–45 (1924) ).
Arkansas Code Annotated section 16-31-102(a) (Supp. 2019) notes in part that the following persons are disqualified to act as a juror:
During voir dire of the first panel of potential jurors, the State moved to strike potential juror Merlos after briefly inquiring about his English comprehension. A lengthy exchange occurred among the judge, counsel, and Mr. Merlos, after which he was excused for cause. Doll argues that based on Merlos’s responses to questions posed to him by both the judge and counsel, it was clear that Merlos comprehended English. Doll submits that Merlos confirmed he was able to read English despite being unable to write it, that Spanish is his primary language and that Merlos sufficiently comprehended English to the extent that he was able to answer every question put before him. Doll further argues that Merlos was sufficiently conversant with English that he could understand the substance of the testimony of witnesses and the arguments of counsel. Given the presumption that Merlos possessed the required qualifications, Doll submits that the circuit court abused its discretion by excusing him over Doll’s objection.
Doll cites Davis v. State , 2019 Ark. App. 303, at 6, 577 S.W.3d 714, 719, for the proposition that "the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." He now claims, for the first time, that the exclusion of Merlos was prejudicial to his case because the jury was not a representative cross section of the community as required by the Sixth Amendment.
We disagree and hold that the circuit court was within its discretion to excuse juror Merlos. During voir dire, Merlos approached the bench and expressed to the judge that he did not know how to write English and could speak and read English "just a little bit." When asked if he spoke some English but did not understand all the words, Merlos replied that was correct. In response to questions by the court, Merlos explained that Spanish is his primary language and that his limited knowledge of English would impact his ability to understand the evidence in the case. Of particular interest during the exchange, the State noted that numerous documents would be introduced at trial and that Merlos’s difficulty with English would disqualify him because of his inability to understand the evidence.
Doll has failed to show that he was prejudiced by having a biased juror "thrust upon" him in Merlos’s place. See, e.g. , Owens, supra. He does not argue that he was denied a competent, fair, and impartial jury, as he must demonstrate to prevail on this claim. E.g. , Jones, supra. The record indicates that Merlos was concerned enough about his ability to understand the proceedings that he approached the court about it. We hold that the court did not "flagrantly abuse" its discretion in excusing Merlos and point out that Doll’s argument regarding an increasing number of persons who primarily speak languages other than English has no bearing on whether the jury that actually tried him was competent, fair, and impartial.
Finally, Doll’s argument that he was prejudiced because Merlos’s exclusion deprived him of a jury that represented a cross section of the community is not preserved for appellate review. Doll did not object on that basis below, and he cannot have that argument considered for the first time on appeal. Jackson v. State , 375 Ark. 321, 330–31, 290 S.W.3d 574, 581 (2009).
Circuit courts have broad discretion in deciding evidentiary issues, and those rulings are not reversed on appeal absent an abuse of discretion. E.g. , Conte v. State , 2015 Ark. 220, at 26, 463 S.W.3d 686, 702 ; Gillean v. State , 2015 Ark. App. 698, 478 S.W.3d 255. The standard test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. Russell v. State , 289 Ark. 533, 712 S.W.2d 916 (1986). "An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier of fact to understand and draw its own conclusions." Utley v. State , 308 Ark. 622, 625, 826 S.W.2d 268, 270 (1992).
Arkansas Rule of Evidence 701 (2019) permits a nonexpert witness to testify in the form of opinions or inferences when those opinions or inferences are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the testimony or the determination of a fact in issue. Rule 701 is not a rule against opinions; rather, it conditionally favors them. E.g. , Moore v. State , 362 Ark. 70, 75, 207 S.W.3d 493, 497 (2005).
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