Jacovan Bush v. State of Arkansas ( 2024 )

Cite as 2024 Ark. 77SUPREME COURT OF ARKANSAS
No. CR-23-710
Opinion Delivered: May 9, 2024
JACOVAN BUSH APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT
[NO. 60CR-20-708]
V.
HONORABLE CATHLEEN V.
STATE OF ARKANSAS COMPTON, JUDGE
APPELLEE
AFFIRMED.
COURTNEY RAE HUDSON, Associate Justice
Appellant Jacovan Bush appeals from his convictions of capital murder, aggravated
residential burglary, aggravated robbery, and theft of property. He received sentences of life
imprisonment without parole, plus forty years in the Arkansas Division of Correction
(ADC). For reversal, Bush argues that (1) the circuit court erred in denying his motion in
limine to exclude improper expert testimony, and (2) the circuit court erred in denying
Bush’s motion for a directed verdict because there was insufficient evidence to sustain his
convictions. We hold that the circuit court did not abuse its discretion and that there was
substantial evidence to support the convictions; therefore, we affirm.
On February 15, 2018, men broke into twenty-three-year-old Devon Howard’s
apartment and ultimately killed him. As a result, Bush was arrested on January 23, 2020,
after his blood came back as the DNA match from the samples found in Devon’s apartment.
Just before the scheduled trial date, the State informed the defense that Officer Miranda
Dollar, a crime-scene specialist with the Little Rock Police Department Crime Scene Search
Unit, disclosed an opinion about the blood evidence that was not contained in her reports.
Officer Dollar’s opinion was that a specific sample of blood on the kitchen countertop was
fresh when she arrived but had dried before law enforcement finished clearing the scene.
The core of Bush’s defense was that when law enforcement located the blood stains, they
were dry, so the blood must have been shed prior to Devon’s murder. Based on Officer
Dollar’s new statement, Bush moved in limine to preclude her from testifying at trial. The
circuit court heard testimony on the issue at a hearing on February 9, 2023. At the close of
Officer Dollar’s testimony, the court heard arguments from both parties. A few days later,
the circuit court entered a written order denying the motion. The case proceeded to jury
trial on March 28, 2023.
At trial, the State presented several witnesses. Ericka Criswell, Devon’s high school
friend, recounted that Devon had recently moved into his apartment in Little Rock. On
February 15, 2018, his cousin, Tiana Howard, and her two young children came to the
apartment with Ericka. While the group was together in a bedroom with an air mattress and
a television, they heard a loud knocking sound over the music playing on the television.
Devon went to the door. Tiana and Ericka then heard a “scuffle.” Ericka testified that Tiana
peeked out of the bedroom and said, “They’re trying to come in. They’re trying to take
something.” The women grabbed the children shortly before a man entered the bedroom
and waved a gun at them. The women screamed, put the children behind them, and ran to
the bathroom connected to the bedroom. The man left the bedroom at some point but then
returned and kicked the bathroom door in, demanding, “Where is the fucking money?”
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while pointing a gun at Ericka’s face. Ericka heard footsteps, body movements in the living
room and kitchen area, and cabinets being opened while the man was still in the room with
the women and the children. The man left the bathroom. However, Ericka could not hear
Devon at all during this. Ericka testified that, at one point, the man with the gun came into
the room and said he was going to “blow [their] fucking heads off” if they did not tell him
where the money was. Ericka testified that Tiana said she would help him look. She heard
the man tell Tiana that he was not playing and that he wanted the money. Ericka said they
did not know what he was talking about, and Tiana kept begging him not to kill them.
After helping the man look for the money throughout the apartment, unsuccessfully,
Tiana returned to the bathroom with blood running from her head to her face. Ericka
testified that the injury was not there before Tiana left the bathroom with the armed man.
Ericka testified that things got quiet, and as the men were exiting the apartment, she heard
one gunshot. Tiana and Ericka then found Devon lying face down on the floor with a hole
in his back. He was dead by the time paramedics arrived.
Ericka testified that she saw no blood in the apartment prior to Devon’s murder. She
also testified that the men had taken Tiana’s and Ericka’s phones as they had left them on
the air mattress in the bedroom, but the phones were gone when Tiana and Ericka came
back through the bedroom. They had no way to call 911 to report the burglary and
shooting, so they asked a neighbor to call 911 for them.
Next, the State presented Officer Dollar. She testified that the time-gap between the
first and second photos of the blood in exhibit numbers 15 and 16 was between thirty
minutes and one hour. She testified that in the second photograph, exhibit no. 16, the blood
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looked “much darker. . .” and that it “had peeled up off the countertop, and it was basically
a solid.” She opined that “[t]he blood drop itself appeared to have dried over that course of
time.”
On cross-examination, Officer Dollar admitted that she had previously testified that
the time-gap between the photos was between three and four hours. When pressed on this
inconsistency, she admitted that she did not have actual knowledge about the time-gap
between the first and second photographs. Additionally, she acknowledged that everything
depicted in the second photograph was darker—not just the blood. Officer Dollar attributed
the differences in the photographs to the camera.
Officer Kevin Duncan then testified that when he arrived, Tiana and Ericka were
crying and seemed to be very upset. He noticed the smell of marijuana and empty glass jars
with marijuana and marijuana residue. He found a “.22 long rifle round on the counter”
and several boxes of clear sandwich bags. He observed that all the cabinet doors in the
kitchen were open as well as the refrigerator and freezer doors.
Detective Rick Harmon testified next. He had become the lead detective on this
case in 2020 after the previous detective transferred to another unit. He testified that Bush
became a suspect when Harmon received a CODIS letter—a nationwide database of DNA
profiles—that the blood samples submitted matched Bush’s genetic profile. As a result of the
DNA hit, he sought an arrest warrant for Bush.
The state then presented Dr. Adam Craig, an associate medical examiner who works
as a forensic pathologist. Dr. Craig testified that the autopsy conducted revealed that Devon
died from a single gunshot wound to his back that exited through his chest. He testified that
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the nature of the wound indicated that the gun must have been fired from within three feet
of Devon. Dr. Craig testified that Devon had abrasions on his right elbow as well as a broken
nose. Devon also had a laceration with contusion on his left cheek.
Karyn Terry, a chemist who was a forensic serologist at the crime lab at the time of
Devon’s autopsy, received the samples for testing from this case. She tested for blood on the
swabs. All but one sample submitted was identified as blood. Maddison Harrell was a forensic
DNA analyst at the crime lab when the blood samples arrived, but he has since left the crime
lab. He testified that the DNA from the blood samples matched Bush’s genetic profile
“within all scientific certainty.” He testified that sample degradation can occur from several
factors, including cleaning agents, the actual surface it was imbedded in, sunlight, and time.
He also testified that slight degradation does not substantially change his opinion.
After the State rested, Bush moved for a directed verdict on all counts, which the
circuit court denied. At the close of all evidence, Bush renewed his motion for a directed
verdict, which the circuit court again denied. The jury found Bush guilty on all counts, and
the circuit court imposed an aggregate sentence of life imprisonment without parole, plus
an additional forty years. Bush now appeals.
Bush argues that the circuit court erred by denying his motion for directed verdict
because there was insufficient evidence to convict him of capital murder. We treat a motion
for directed verdict as a challenge to the sufficiency of the evidence. McCray v. State, 2020
Ark. 172, 598 S.W.3d 509. Although Bush challenges the sufficiency of the evidence in his
last point on appeal, we must address it first for purposes of double jeopardy. Armstrong v.
State, 2020 Ark. 309, at 5, 607 S.W.3d 491, 496. We have repeatedly held that in reviewing
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a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable
to the State and consider only the evidence that supports the verdict. Id. We affirm a
conviction if substantial evidence exists to support it. Mabry v. State, 2020 Ark. 72, 594
S.W.3d 39. Substantial evidence is that which is of sufficient force and character that it will,
with reasonable certainty, compel a conclusion one way or the other, without resorting to
speculation or conjecture. Rickert v. State, 2023 Ark. 191, at 5–6. The credibility of witnesses
is an issue for the jury, not the court; the trier of fact is free to believe all or part of any
witness’s testimony and may resolve questions of conflicting testimony and inconsistent
evidence. Id. at 6.
Bush argues that the presence of DNA at the scene is insufficient evidence because
the witnesses did not identify him, and the blood could have been dry when Officer Dollar
arrived and took pictures of the scene. This court, however, has consistently accepted DNA
evidence as sufficient proof of guilt. Ellis v. State, 364 Ark. 538, 543, 222 S.W.3d 192, 196
(2006); Arnold v. State, 2018 Ark. 343, at 4, 561 S.W.3d 727, 729. Even though this court
has held that DNA evidence is sufficient to support a verdict, Bush points to Lewis v. State,
2010 Ark. 209, to support his argument that that our decisions have always pointed to other
facts to support the finding of sufficient evidence and the DNA evidence is the only
evidence to support Bush’s conviction.
In Engram v. State, however, this court held that “the DNA evidence [was] substantial
standing alone.” 341 Ark. 196, 202, 15 S.W.3d 678, 681 (2000). Additionally, here, multiple
swabs were taken from the apartment, tested, and determined to have DNA that matched
Bush’s DNA profile “within all scientific certainty.” Regarding questions of credibility, as
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stated above, we view the evidence in the light most favorable to the State, recognizing that
it is the jury’s province to resolve credibility disputes and not our own. Id. This principle
applies to DNA evidence when its credibility is being challenged. Id. Combined with
testimony that the swabbed blood matching Bush’s DNA was initially wet, the jury as
factfinder could have reasonably concluded that Bush was in the apartment around the time
Devon was murdered and was the one who attacked and shot Devon, or at least was a party
to it. As such, the circuit court properly denied Bush’s motions for directed verdict, and
under our standard of review, we hold that substantial evidence of his guilt exists.
Bush also argues on appeal that Officer Dollar’s testimony was inadmissible under
Arkansas Rule of Evidence 701 because an opinion on the physical change of the blood falls
outside the scope of lay-person testimony. Bush filed a motion in limine to preclude Officer
Dollar’s testimony that blood, later identified as Bush’s, was fresh when initially found in
the apartment but had dried between the time she took two sets of photographs at the crime
scene. At the hearing on the motion in limine, Officer Dollar testified that she arrived at
the crime scene around 8:30 p.m., met with other responding officers, conducted an initial
walkthrough of the property, photographed the blood stains twice, and then collected swabs
for the Arkansas State Crime Laboratory. Regarding the specific sample at issue, she testified
that the blood appeared to have dried between the first and the second photographs, which
was “three to four hours.” She explained that she noticed the blood had dried when she
initially took the sample, but she did not include it in her report because she lacked training
on the issue. She also explained that she arrived at her opinion about the blood after she had
reviewed the two photos of the specific sample. Specifically, Officer Dollar testified:
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It did not necessarily appear to me on the first observation that it was
very wet or very fresh. I might not have noted that it was in particular
fresher than any of the other stains. But upon viewing it later[,] and
seeing how it had changed[,] and had become darker and misshapen,
that led me to relook at both photos and see that, ‘oh it must have
been fresher at that time.’
On cross-examination, Officer Dollar testified that she is not an expert in blood evidence,
but since taking the sample, she has taken two courses about blood evidence for a total of
sixty-eight hours. The circuit court eventually denied the motion in limine.
Arkansas Rules of Evidence 701 and 702 govern opinion testimony. Lay witnesses
may provide opinion testimony when the opinion is “rationally based on the perception of
the witness; and the opinion is helpful to a clear understanding of his [or her] testimony or
the determination of a fact in issue.” Ark. R. Evid. 701. Expert witnesses may provide
opinion testimony “if scientific, technical, or specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue.” Ark. R. Evid. 702.
Bush argues that the circuit court should have granted his motion in limine to
exclude Officer Dollar’s improper expert testimony. However, a circuit court has broad
discretion when making evidentiary rulings, and this court will not reverse the court’s ruling
absent an abuse of discretion. Humphry v. State, 2023 Ark. 16, at 5, 659 S.W.3d 691, 695.
Abuse of discretion is a high threshold that does not simply require error in the circuit
court’s decision but requires that the circuit court act improvidently, thoughtlessly, or
without due consideration. Id.Bush concedes that an expert witness is not required to identify blood. See, e.g., Smith
v. State, 282 Ark. 535, 540, 669 S.W.2d 201, 205 (1984); see also Leach v. State, 2012 Ark.
179, at 18, 402 S.W.3d 517, 529 (testimony that a defendant had blood on his hands was
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admissible because the opinion was based on the officer’s personal experience as a law-
enforcement officer and the opinion was rationally based on his personal observations). Bush
argues, however, that the chemical and physical changes to a forensic blood sample that may
or may not occur over time falls outside the scope of ordinary lay-opinion testimony. He
claims that this information would require specialized scientific education and training,
which Officer Dollar did not have. Bush provides no authority that expert testimony was
needed to establish that a physical change had occurred, or more specifically, that blood had
dried. When an appellant fails to cite convincing legal authority, this court will not reach
the merits of the argument. Bunch v. State, 344 Ark. 730, 739, 43 S.W.3d 132, 138 (2001).
This court has consistently ruled that an officer’s opinion testimony based on his or
her work experience and observations is admissible. E.g., Flowers v. State, 373 Ark. 127, 132,
282 S.W.3d 767, 771 (2008)(testimony of an officer that a truck’s window had been broken
on the outside did not require expert testimony because the officer’s testimony was rationally
based on his experience, forensic training, and personal observation); Robinson v. State, 353
Ark. 372, 383, 108 S.W.3d 622, 629 (2003) (opinion testimony by an investigator on the
amount of blood lost by a victim was rationally based on perception and was admissible);
Gruzen v. State, 276 Ark. 149, 155, 634 S.W.2d 92, 95 (1982) (opinion testimony by an
officer on how long a person had been dead was admissible because it was based on the
officer’s experience and observations). Officer Dollar testified that the blood on the counter
went from being “fresher” to “dried.” Her testimony about those physical changes could
have been given by any lay person, and she used photographs to show the differences
between earlier photos and later photos of how the blood looked.
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Bush effectively cross-examined Officer Dollar on her analysis of the blood changes
as well as her seemingly inconsistent statements about the time between photos and why
she only recently stated that the blood was “fresher” when she had previously indicated no
such thing. This court has made it patently clear that the jury is the sole judge of
the credibility of the witnesses and the weight to be given their testimony. Brooks v. State,
2016 Ark. 305, at 7, 498 S.W.3d 292, 296. Officer Dollar further testified that she had been
to approximately 1700 crime scenes over her eight years of experience, more than half of
which contained blood. Although Bush thoroughly impeached the witness, the jury was
free to determine how much weight to give Officer Dollar’s testimony. Id. The circuit court
did not abuse its discretion in allowing the testimony because the court determined that
Dollar’s opinion was rationally based both on her experience as a crime-scene specialist and
her observation of the crime scene and its photographs. Flowers, 373 Ark. at 128, 282 S.W.3d
at 769. As such, the circuit court did not abuse its discretion by denying Bush’s motion in
limine and admitting Officer Dollar’s testimony.
Rule 4-3(a)
In compliance with Arkansas Supreme Court Rule 4-3(a), the record has been
examined for all objections, motions, and requests made by either party that were decided
adversely to appellant, and no prejudicial error has been found.
Affirmed.
James Law Firm, by: William O. “Bill” James and Drew Curtis, for appellant.
Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.
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