Moody v. State

• Decision Date: 08 October 2014
• Docket Number: No. CR–12–724.,CR–12–724.
• Citation: 444 S.W.3d 389,2014 Ark. App. 538
• Parties: Olivia MOODY, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2014 Ark. App. 538

444 S.W.3d 389

Olivia MOODY, Appellant

v.STATE of Arkansas, Appellee.

No. CR–12–724.

Court of Appeals of Arkansas.

Oct. 8, 2014.

McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

Opinion

BRANDON J. HARRISON, Judge.

A Jefferson County jury convicted appellant Olivia Moody of second-degree murder in the death of Vanessa Bearden. Ark.Code Ann. § 5–10–103 (Repl.2009). Moody was sentenced to thirty years' imprisonment as punishment. The issues Moody appeals are that the circuit court erred by (1) permitting the State to cross-examine her about a Facebook post, (2) admitting text messages from her phone, (3) limiting cross-examination of a State witness in violation of her Sixth Amendment rights, (4) abusing its discretion because it failed to submit her proffered instruction to the jury, and (5) denying her directed-verdict motion because the State failed to negate her justification defense.

We treat motions for directed verdict as challenges to the sufficiency of the evidence. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). We will first address Moody's argument about her justification defense and the court's denial of her directed-verdict motion. Boldin v. State, 373 Ark. 295, 297, 283 S.W.3d 565, 567 (2008). Some of the trial testimony was confusing, but a fair summary of the testimony as a whole is presented below.

I. Justification Defense

Colby Dukes testified during Moody's trial that the following events occurred on 26 June 2011. Dukes and the victim, Vanessa Bearden, went to the Holiday Apartments in Pine Bluff to visit a friend, Alisha Jeffers. As they pulled into the parking lot, Dukes reported that she and Bearden saw Jeffers “hollering” at a woman walking in the street. The woman, who was later identified as Olivia Moody, responded to Jeffers that “I'm not worried about it. So what's up?” The verbal confrontation eventually resulted in a physical fight between Moody and Jeffers, and a fairly large crowd of people closely gathered around to watch.

Dukes told the jury that at some point during the fight she too fought Moody for about ten seconds and that a man named Brian Caddy pulled Moody off of her. Moody then broke free from Caddy's grasp and ran straight to Vanessa Bearden, who was recording the fight on her cell phone. Moody and Bearden fought for a brief time, until Caddy picked up Moody, put Moody in his vehicle, and drove away.

Alicia Jeffers left Dukes's and Bearden's company, and Dukes and Bearden walked to a fenced, shaded area in a nearby apartment complex across the street from where Jeffers lived. The two girls sat on the wooden fence while hanging out with a group of people. About forty-five minutes later, Dukes said that they noticed a white Tahoe driving by with Moody sitting in the passenger seat. The vehicle made several passes by the apartment buildings and when the Tahoe came in front of the group of girls sitting on the wooden fence, it slowed. Dukes said that Moody rolled down the passenger side door window and said “Y'all, come on; ya'll, come see me.” The Tahoe then drove off.

Approximately ten minutes later, according to Dukes, a man named Garyl Allen appeared. Allen testified during the trial that Moody had told him, “Go around and tell them [the girls sitting on the fence] to come around here if they still want to fight and jump on me.” Allen delivered the message, but the girls “didn't buy into it” and continued to sit on the fence. He then told Moody that “[the girls] didn't want to fight.” At that time, according to Allen, Moody was about forty yards from a breezeway, where he was standing; she began to walk straight towards him.

Moody continued to walk past Allen, who was in the breezeway. When Moody came close, Allen said that he noticed that she had a gun in her right hand. Allen followed “two or three feet” behind Moody as she walked. When Moody and Allen reached the end of the breezeway, Allen said that he saw that a few of the girls had “disappeared” from sitting on the fence, but that Bearden was “running back and forwards, like [she] didn't know which way to go.” According to Allen, when Bearden saw Moody, Bearden turned around to go the other way and Moody “pulled a gun and shot one time.” Allen testified that Bearden and Moody were about six feet apart and that Bearden had nothing in her hands when she was shot. After Moody shot Bearden, she pointed the gun at another girl sitting on the fence; Allen said that he stopped Moody by saying that the girl on the fence had “nothing to do with it.”

Returning to Colby Dukes's account of events, after Caryl Allen had conveyed the message to the girls on the fence, Vanessa Bearden stood up to go towards the breezeway, but did not get very far. Dukes warned Bearden not to see what Moody wanted because it seemed “fishy.” Bearden then showed Dukes a little pocket knife that she kept tucked in her shorts and covered by her shirt. According to Dukes, Bearden walked about three feet toward the breezeway when Moody appeared with a small gun. Dukes heard Moody yell something provocative, but ran away when she saw Moody had a gun. Dukes turned around when she heard Bearden yell and saw that Bearden was holding herself and running at the same time. Dukes ran for a while before stopping and coming back to the crime scene. When she arrived, Bearden was on her back bleeding. James Barnes, a minister, who had seen some of the prior events, appeared and started CPR.

Reverend Barnes testified that he was across the street in the parking lot of his church when the shooting occurred. Barnes said that he saw one girl running away and that the girl who was running had made it about five steps before she was shot by another girl standing and holding a gun. The shooter turned around and walked back into the breezeway. Somebody told him that the girl was dying, so he ran to the girl and started CPR. Reverend Barnes testified that he removed a knife on the inside right area of the victim's clothes before the police and an ambulance arrived.

Dr. Daniel Dye from the Arkansas State Crime Lab testified that Bearden's death was caused by a wound from a 9mm bullet, which was consistent the with shell casing found on the scene. According to Dr. Dye, the bullet had entered Bearden's back on the left side and exited in the front on the right side of her chest. Bearden also had wounds on her knees consistent with a fall.

Pine Bluff police detective Shawn Davis testified that Moody was an immediate suspect in Bearden's death. Police searched Moody's apartment but found no weapons. Moody was brought in for questioning the night the shooting occurred. Moody told Detective Davis that she was injured in a fight earlier that day. Davis took photographs of Moody's injuries, and the State entered them as evidence during the trial. Detective Davis concluded that the photos showed that Moody had no visible or significant injuries.

At the close of the State's evidence, Moody moved for a directed verdict because “The State has failed to rebut [her] justification defense and has failed to produce any proof ... that [she] could have avoided the necessity of using deadly force with complete safety by retreat.”

Moody testified in her own defense. She explained that Jeffers had dated her former boyfriend. On the afternoon of the shooting, Moody said that a group of eight or so girls, including Jeffers, wanted to fight her and that she did not know any of the girls save Jeffers. Moody said that she and Jeffers started fighting, and Moody ended up in a ditch on the opposite side of the street. Moody said she “presumed” that the crowd gathered around to fight her. In Moody's view, all she could do to protect herself was to cover her face and ball up in the ditch. Moody explained that she broke free from K.C.'s (aka Brian Gaddy) grasp to look for her phone, money, and keys. Moody testified that she tried to go home, but the girls who had fought her were in front of her apartment. At some point, Gaddy gave Moody a gun. Moody then returned to her apartment building's rear entrance. Moody said that she was afraid because there was a group of girls that she did not know sitting on the fence, and they were waiting to fight her. As she walked through the breezeway with the gun, she was confronted by a group of girls with one saying, “Get her....” Moody feared for her safety because she thought that the girls were going to jump her again. Moody said she fired the gun “to scare them.”

On cross-examination, Moody admitted that Vanessa Bearden did not have a weapon in her hand and that no one had threatened Moody with one. Moody also admitted to having the keys to her apartment on her person, and not going to her apartment; instead, she headed towards the group of girls who had gathered along the fence. Moody said that she had thought the girls would fight her “regardless” and that she went towards the group of girls (holding the gun) to tell them that “fighting me because someone else is fighting me over a boy. That is dumb.”

Moody renewed her motion for directed verdict after all the evidence was presented, arguing that she “feared that she would, in fact, be seriously injured and that she feared for her life when she was in the ditch at the first fight ... And also when the girls came toward her, the five girls, that she was in fear that they would do serious bodily harm to her, if not, you know, cause her death.”

Moody contends here that the circuit court erred when it denied her motion for directed verdict because the State failed to negate her justification defense. We disagree and affirm on this point.

A person commits murder in the second degree if she “[k]nowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life” or “[w]ith the purpose of causing serious physical injury to another person ... causes the death...