Eric M. Davis v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOSEPHINE LINKER HART, JUDGE
DIVISION III
CACR061385
December 19, 2007
ERIC M. DAVIS
APPELLANT
APPEAL FROM THE BRADLEY
COUNTY CIRCUIT COURT
[NO. CR2005111]
V.
HONORABLE SAMUEL B. POPE,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
JOSEPHINE LINKER HART, Judge
Appellant, Eric M. Davis, was convicted of seconddegree murder and sentenced to
twenty years’ imprisonment and fined $10,000. On appeal, he argues that the evidence was
insufficient to support his conviction, that the circuit court erred in admitting testimony in
contravention of Rules 403 and 404(b) of the Arkansas Rules of Evidence, and that the
circuit court erred in refusing to grant a mistrial for juror misconduct. We affirm.
Preservation of appellant’s right against double jeopardy requires that we consider his
challenge to the sufficiency of the evidence first even though it was not listed as his first
point on appeal. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Appellant argues
on appeal that the evidence was insufficient to support his conviction for seconddegree
murder. We note, however, that in his directedverdict motions, he argued that the evidence
was insufficient to support firstdegree murder, without addressing seconddegree murder
either by name or by apprising the court of the elements of seconddegree murder. In order
to preserve a challenge to the sufficiency of the evidence supporting a conviction for a
lesserincluded offense, a defendant must in his directedverdict motions address the
lesserincluded offense either by name or by apprising the court of the elements of the
lesserincluded offense. Id. Given appellant’s failure to do so, his argument was not
preserved for appellate review.
Next, citing Rule 404(b) of the Arkansas Rules of Evidence, appellant argues that the
court erred in permitting seven witnesses to testify, as their testimony had no bearing on
whether he committed the crime and was admitted solely to show his bad character.
Appellant also cites Rule 403 of the Arkansas Rules of Evidence and argues that the
probative value of the testimony was substantially outweighed by its prejudicial effect.
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in conformity
therewith,” but it “may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Rule 403 provides that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice....” Circuit courts are afforded
wide discretion in making evidentiary rulings, and we will not reverse a ruling on the
admissibility of evidence absent an abuse of discretion. Brunson v. State, 368 Ark. 313, ___
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S.W.3d ___ (2006).
Here, appellant was charged with firstdegree murder, and the State alleged that with
the purpose of causing the death of the victim, Burgandy Duncan, he caused her death. See
Ark. Code Ann. § 510102(a)(2) (Repl. 2006). According to appellant, Burgandy was
sixteen and in the eleventh grade at the time of her death, and that, at the time of the trial, he
was twentytwo. On February 17, 2005, he went to Burgandy’s residence. He had a poultry
knife with him because he had “snatched” a dog by cutting its rope tether. Burgandy went
through his pockets, found the knife, and playfully poked at him with it. He grabbed her
hand, and she turned her back to him. He noticed that she had blood on her hand, though it
was not a lot of blood, and he did not know that it was serious. He testified that it was as
much her fault as his. He admitted on crossexamination that he told police that he went
over to her house to pick up a Valentine’s Day gift he had sent to her.
Appellant challenges the admissibility of the testimony of seven witnesses: Frederica
Marshall, Akilah Swift, Shamonica Hampton, Chance Davis, Shaquonda York, Terrence
York, and Faneshia Duncan. In allowing these witnesses to testify, the circuit court limited
their testimony to incidents occurring from 2004 to Burgandy’s death on February 17, 2005,
and informed appellant that he would be entitled to a limiting instruction. The instruction
apprised the jury to consider the testimony only as evidence of appellant’s motive and intent.
Frederica Marshall testified that appellant and Burgandy Duncan would argue and
fight, and a few months before her death, appellant asked Marshall whether Burgandy spoke
to other males. Even though Marshall told him that Burgandy had not, appellant stated that
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he was going to kill Burgandy.
Akilah Swift testified that during the school year Burgandy would come to school
with cuts on her chest and burns on her arms. According to Swift, appellant told her he had
caused those injuries. Swift also testified that three to four weeks before Burgandy’s death,
appellant called Swift and asked what other guys Burgandy was speaking to, and he stated
that he would kill Burgandy.
Shamonica Hampton testified that appellant would call and speak to her about his
relationship with Burgandy. He would ask Hampton whether Burgandy was involved with
certain men. She testified that, sometime in 2004, he stated that he wanted to stab Burgandy
and her family. Also, she testified about a June 2004 altercation at a McDonald’s in which
appellant pulled Burgandy from a car Hampton was driving, and after Hampton and
Burgandy left the restaurant, he followed them to a residence where he demanded to speak
to Burgandy.
Chance Davis testified that he observed burns on Burgandy’s arm and had also
observed that she had a bloodshot eye. He further testified that while at McDonald’s, he was
in a vehicle with Burgandy, Hampton, and another man and woman. Appellant tried to speak
to Burgandy, but she refused. Appellant asked where they were going, and they gave him
incorrect information. Appellant told them that he “should shoot holes in your car right
now,” but that he was not going to do so.
Shaquonda York testified that appellant followed her and Burgandy to a Pizza Hut.
According to York, appellant and Burgandy “got into it,” and appellant pulled Burgandy out
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of the car by her arm. When York tried to stop the argument, appellant pushed her.
Terrence York testified that around the time Burgandy was killed, he observed
appellant walking down the street. He testified that appellant was carrying a knife up his
sleeve, had a “mean look on his face,” and walked like he was “kind of upset.”
Faneshia Duncan, Burgandy’s mother, testified that when she learned that appellant
had a son by another woman, she told appellant that she did not want him involved with her
daughter. Duncan testified that windows had been broken at her residence. She described
how six or seven months before her death, Burgandy called after appellant had slapped her,
and when Duncan arrived, he cursed them and stated that he would get his gun. She also
testified that on the day of Burgandy’s death, Burgandy called her and told her that appellant
had stabbed her in the chest.
When the purpose of evidence is to show motive, anything and everything that might
have influenced the commission of the act may, as a rule, be shown. Brunson, supra. Any
evidence that is relevant to explain the act, show a motive, or illustrate the accused’s state
of mind, may be independently relevant and admissible. Id. Further, a defendant’s previous
threats regarding a homicide victim are admissible to show intent. Id.
Through the testimony of these witnesses, the State showed appellant’s aggressive
behavior against the victim leading up to the murder, describing his threats and the violent
and controlling nature of appellant’s relationship with the victim. This testimony was
independently relevant and admissible to show appellant’s intent and motive in her death and
counter appellant’s assertion that her stabbing death was accidental. Thus, we conclude that
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the testimony was properly admitted. Moreover, given the import of this testimony, we
cannot say that the circuit court erred weighing probative value of the testimony against its
prejudicial effect.
In a third point, appellant notes that, following a recess, appellant’s counsel
approached the bench and stated that appellant and his father had observed one of the jurors
having a conversation with family members of the victim, including the deceased’s mother,
who later testified at trial. In addressing the court alongside his attorney, appellant stated
that “[i]t was like when we went out, they was all gathered up, and then they just, they
scattered....” He further stated that “[i]t occurred out there in the hallway when By the
time you said fifteen minute recess, we were all outside, and everybody was gathered up
together. And when they seen me walk out the door, they scattered.” Appellant’s counsel
stated that appellant would be open to an alternate juror or a mistrial, but would ask for an
alternate juror first. Ultimately, however, appellant and his counsel concluded that they did
not want the court to speak to the juror and asked only for an admonition.
On appeal, appellant argues that even though appellant declined to have the court
question the juror, the court nevertheless should have declared a mistrial, sua sponte, or
alternatively replaced the juror. He asserts that “[j]uror contact with a victim’s family
members is presumptively prejudicial to the substantial rights of the defendant and a trial
court has a duty to intervene to correct a serious error like improper juror contact with a
witness.”
Following an allegation of juror misconduct, the moving party bears the burden of
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proving both the misconduct and that a reasonable possibility of prejudice resulted from it.
Holsombach v. State, 368 Ark. 415, ___ S.W.3d ___ (2007). Here, while there were
allegations that a juror spoke to the victim’s family members, there was no testimony
submitted showing that any contact occurred. Because appellant failed to go forward with
proof of misconduct, he did not meet his initial burden of proving misconduct stemming from
contact by a juror with the victim’s family. His failure to do so waived any objection to the
alleged misconduct.
Affirmed.
GLADWIN and GRIFFEN, JJ., agree.
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