Michael Davis v. State of Arkansas ( 2023 )

Cite as 2023 Ark. App. 403ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-22-377
MICHAEL DAVIS Opinion Delivered September 27, 2023
APPELLANT
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. 43CR-21-489]
STATE OF ARKANSAS HONORABLE BARBARA ELMORE,
APPELLEE JUDGE
AFFIRMED
BART F. VIRDEN, Judge
A Lonoke County jury convicted appellant Michael Davis of negligent homicide, and
he was sentenced to serve one year in the county jail and ordered to pay a $1,000 fine. On
appeal, Davis argues that the trial court erred in refusing to give non-model jury instructions
on the definition of “negligently” and on the so-called Graham v. Connor standard.1 Davis
also argues that the trial court erred in not admitting all opinions by his expert witness. We
affirm.
I. Background
On June 22, 2021, seventeen-year-old Hunter Brittain and two of his friends were
replacing the transmission in Brittain’s pickup truck at Mahoney’s Body Shop in Cabot.
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Graham v. Connor, 490 U.S. 386 (1989).
Around 3:00 a.m., Brittain and one of his friends took the truck for a test drive while the
second friend stayed at the shop. Among other problems, the truck would not shift into
“park,” which prompted Brittain to place a jug of coolant behind the truck’s tire while they
added some transmission fluid. They were on their way back to the body shop when Davis,
then a sergeant with the Lonoke County Sheriff’s Office, noticed that the truck was smoking
and making a “loud racket.” Davis suspected that the truck might have been stolen, but he
“ran the plates” and there was no such report. Davis activated his blue lights to conduct a
stop after an improper lane change. Davis initially thought that Brittain was going to flee
because he heard the truck’s engine being revved, but then Brittain turned left into
Mahoney’s driveway. Davis radioed dispatch that he was pulling into Mahoney’s for a traffic
stop. Twenty-three seconds later, Davis radioed, “Shots fired.”
According to Davis, before he could put his patrol truck into “park,” Brittain had
opened the driver’s door and begun reaching into the bed of the truck. Also, Davis saw that
Brittain’s truck was rolling backward toward his patrol truck. Davis said that he fired one
shot and that Brittain’s hands flew out of the bed of his truck. Davis then saw that Brittain
had been holding a blue jug of what was later determined to be coolant. Davis testified that
he thought Brittain had been reaching for a rifle. Davis also claimed that he had been
shouting commands that Brittain remain in the truck and then that he show his hands, but
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that Brittain did not acknowledge his directives. According to the passenger in Brittain’s
truck, Davis did not yell any commands until after the shot had been fired. 2
The jury was instructed on both manslaughter and negligent homicide as well as on
the defense of justification with respect to the charge of manslaughter. The jury acquitted
Davis of manslaughter but found him guilty of negligent homicide.
II. Discussion
A. Non-Model Jury Instructions
A party is entitled to a jury instruction when it is a correct statement of the law and
when there is some basis in the evidence to support giving the instruction. Keesee v. State,
2022 Ark. 68, 641 S.W.3d 628. An appellate court will not reverse the trial court’s decision
to give or reject an instruction unless the court abused its discretion. Id. When the trial court
determines that the jury should be instructed on an issue, the model criminal instruction
must be used unless the court concludes that it does not accurately state the law. Id. A non-
AMI Criminal 2d instruction should be given only when the trial court finds that the AMI
Criminal 2d instruction does not state the law or that AMI Criminal 2d does not contain a
needed instruction on the subject. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). Just
because an appellant’s proffered instructions contain correct statements of the law does not
mean that the trial court erred in refusing to give them. Id.2
Davis activated his body camera after the shooting had occurred.
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Davis first argues that the trial court erred in refusing his proffered definition of
“negligently” in connection with the charge of negligent homicide. A person commits
negligent homicide if he negligently causes the death of another person. Ark. Code Ann. §
5-10-105(b)(1) (Repl. 2013). The statutory definition of “negligently” provides that “[a]
person acts negligently with respect to attendant circumstances or a result of his conduct
when the person should be aware of a substantial and unjustifiable risk that the attendant
circumstances exist or that the result will occur.” Ark. Code Ann. § 5-2-202(4)(A) (Repl.
2013). “The risk must be of such a nature and degree that the actor’s failure to perceive the
risk involves a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation considering the nature and purpose of the actor’s conduct
and the circumstances known to the actor.” Ark. Code Ann. § 5-2-202(4)(B). In his proffered
instruction, Davis substituted the term “a reasonable Law Enforcement Officer” for “a
reasonable person.”
The model jury instruction on negligent homicide that was read to the jury provides,
in relevant part, the following:
The term “negligently” as used in this criminal case means more than it does
in civil cases. To prove negligence in a criminal case the State must show beyond a
reasonable doubt that Michael Davis should have been aware of a substantial and
unjustifiable risk that the death would occur. The risk must have been of such a
nature and degree that his failure to perceive it, considering the nature and purpose
of his conduct and the circumstances known to him, involved a gross deviation from
the standard of care that a reasonable person would have observed in his situation.
Because the model instruction tracked the language of the statute, it was a correct
statement of the law. We note that there is no special section in the Criminal Code on
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negligent homicide when it is committed by a law enforcement officer and that there is no
separate definition for the state of mind “negligently” when a law enforcement officer is
involved. We cannot say that the trial court abused its discretion in refusing to give Davis’s
proffered instruction when the instruction that was given accurately stated the law.
Second, Davis argues that the trial court erred in rejecting his proffered non-model
jury instructions with regard to the use of deadly force by law enforcement officers, i.e., the
justification defense. He argues that the trial court’s failure to give his instructions based on
the Graham v. Connor standard improperly eliminated any consideration of the perspective
of a law-enforcement officer on the scene.3 Davis’s proposed instructions on the Graham v.
Connor standard were proffered only in connection with the charge of manslaughter, of
which Davis was acquitted. Because Davis did not seek a justification instruction with respect
to negligent homicide, his argument is not preserved for appellate review. Porter v. State, 358
Ark. 403, 191 S.W.3d 531 (2004).
B. Admission of Expert Testimony
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Graham, supra, was a § 1983 civil-rights action, in which the United States Supreme
Court held that all claims that law enforcement have used excessive force—deadly or not—in
the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly
analyzed under the Fourth Amendment’s “objective reasonableness” standard rather than
under a substantive-due-process standard. Id. at 395. The Supreme Court also said that “[t]he
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The
calculus of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at
396–97.
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We review the admission of expert testimony under an abuse-of-discretion standard.
Tiarks v. State, 2021 Ark. App. 325, 633 S.W.3d 788. To qualify as an abuse of discretion,
the trial court must have acted improvidently, thoughtlessly, or without due consideration.
Id. Moreover, we will not reverse a trial court’s evidentiary ruling absent a showing of
prejudice. Clark v. State, 2012 Ark. App. 496, 423 S.W.3d 122. The test for admissibility of
expert testimony is whether it will aid the trier of fact in understanding the evidence or in
determining a fact in issue. Ark. R. Evid. 702. Where the introduction of expert testimony
would invade the function of the jury or where it does not help the jury, the testimony is not
admissible. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818.
Glyn Corbitt, Davis’s expert, a use-of-force analyst and law enforcement
instructor/consultant, submitted an initial report in which he stated his opinion that Davis
did not commit the offense of manslaughter. The State filed a motion in limine to exclude
Corbitt’s initial report and anticipated testimony because his opinion would invade the
province of the jury. Corbitt then submitted a supplemental report in which he again
referred to the charge of manslaughter, but his report also discussed Davis’s training with
respect to approaching a stopped vehicle, the use of force, and the objective-reasonableness
standard outlined in Graham. The supplemental report was limited to Corbitt’s opinion that
Davis had adhered to the training that he had received.
The trial court permitted Davis to introduce Corbitt’s supplemental report but would
not allow him to introduce Corbitt’s initial report because it went beyond his opinion
whether Davis had followed the proper procedure and, instead, touched on the ultimate
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issues of reasonableness and the appropriateness of the charges. Davis argues that the trial
court erred in not admitting all of Corbitt’s opinions. Because Corbitt’s initial report and
his anticipated testimony mandated a legal conclusion and told the jury how to resolve
factual questions, we hold that the trial court did not abuse its discretion in excluding them.
If the opinion testimony mandates a legal conclusion or “tells the jury what to do,” the
testimony should be excluded. Rodgers v. State, 2022 Ark. App. 388, 654 S.W.3d 68. In any
event, Davis cannot show prejudice from the ruling excluding Corbitt’s initial report and
anticipated testimony given that he was ultimately acquitted of manslaughter. See Carr v.
State, 2023 Ark. App. 345, 669 S.W.3d 854.
Affirmed.
ABRAMSON, J., agrees.
HIXSON, J., concurs.
KENNETH S. HIXSON, Judge, concurring. I agree with the majority that this case
must be affirmed based on the applicable laws enacted by our legislature and the Arkansas
Model Jury Instructions that track the language of those statutes. I write this concurring
opinion to express my position that the legislation could, and perhaps should, be more fully
developed to account for the situation—as is the case here—of a law enforcement officer acting
in the line of duty making split-second life-changing decisions.
I acknowledge that Davis’s arguments regarding the jury instructions rely on Graham
v. Connor, 490 U.S. 386 (1989), which was a civil case brought under 42 U.S.C. § 1983 for
the alleged deprivation of constitutional rights due to excessive police force. In Graham, the
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Supreme Court held that a civil constitutional excessive-force claim arising from an arrest or
investigatory stop is properly characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right to be secure in their persons against
unreasonable seizures of the person. The Graham court went on to state that the
“reasonableness” of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The
Supreme Court wrote further:
The calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.
Graham, 490 U.S. at 396–97.
Davis asserts that Graham differentiates between when a police officer is justified in
using force as opposed to a normal citizen. Davis, however, acknowledges that state law
governs criminal prosecutions and that Graham involved an officer’s civil liability for
deprivation of Constitutional rights. But Davis asserts that, along the lines of the Supreme
Court’s reasoning in Graham, the reasonableness of the conduct in a criminal prosecution
of a police officer should be evaluated not from the prospect of a reasonable civilian but
rather from the prospect of a reasonable police officer similarly situated. Davis makes a valid
point: If an officer’s conduct is judged from the perspective of a reasonable officer in a civil
case where only money damages are involved, should this standard not apply equally in a
criminal case when an officer’s liberty is at stake?
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The jury convicted Davis of negligent homicide, and as the majority opinion states,
the model instruction given by the trial court was a correct statement of the law. The jury
instruction, AMI Crim. 2d 1005, is structured from the definition of “negligently” as defined
by Ark. Code Ann. § 5-2-202(4) (Repl. 2013). And that definition makes no differentiation
between the conduct of a normal citizen and the conduct of a police officer. Davis asked to
have the language in the model instruction modified from “a gross deviation from the
standard of care that a reasonable person would have observed in his situation,” to “a gross
deviation from the standard of care that a reasonable law enforcement officer would have
observed in his situation.” I cannot conclude that the trial court abused its discretion in
denying Davis’s requested modification because the model instruction given by the trial
court accurately stated the law, and the modification would have added a provision not
found in the instruction.
The State argues that Davis’s proposed modification is a moot point because the
model instruction states that the standard of care is judged from what a “reasonable person
would have observed in his situation,” and in this case, Davis’s situation was that of a police
officer making a traffic stop. However, I beg to disagree. There are two contrasting jury
instructions that come into play here. First, the jury is instructed that the jury is “to apply
the law as contained in these instructions to the facts and render your verdict upon the
evidence and the law.” See AMI Crim. 2d 101(c). Then, in virtually the next breath, the jury
is instructed that arguments of counsel “are not evidence but are made only to help you in
understanding the evidence and the appliable law.” See AMI Crim. 2d 101(f). The appellant’s
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closing argument that the jury should view the defendant’s conduct as “a reasonable person
would have observed in his situation” (which the jury could ignore) does not carry the same
weight as the judge instructing the jury to view the defendant’s conduct—as a matter of law—
as “a reasonable law enforcement officer would have observed in his situation.” Those are
strikingly different statements that could affect a jury of his peers in deliberations.
I further agree with the majority’s holding that Davis’s proposed jury instruction on
justification is not preserved for review because, although justification was raised as a defense
to manslaughter, it was not raised as a defense to negligent homicide. However, I submit
that, even had this issue been preserved, we would likely be constrained to affirm on this
issue as well. The model jury instruction, AMI Crim. 2d 708, derives directly from Ark.
Code Ann. § 5-2-610(b)(2) (Repl. 2013) and states that a law enforcement officer may use
deadly physical force upon another person when he reasonably believes that it is necessary
to defend himself from what he reasonably believes to be the use or immediate use of deadly
force. Although Davis contends that language should be added to this model instruction to
the effect that the reasonableness of an officer’s actions must be judged from the perspective
of a reasonable officer, he is again asking for an additional provision that is simply not
included in the statute as enacted.
Our supreme court has stated that there is no better settled rule in criminal
jurisprudence than that criminal statutes must be strictly construed and pursued. Smith v.
State, 352 Ark. 92, 98 S.W.3d 433 (2003). The courts cannot, by construction or
intendment, create offenses under statutes that are not in express terms created by the
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legislature. Id. Nothing is taken as intended that is not clearly expressed, and it would violate
the accepted canons of interpretation to declare an act to come within the criminal laws of
the State merely by implication. Id.Because the statutes relevant to this case, as written, do not specifically contemplate
the perspective of a reasonable police officer in assessing the conduct of the officer charged
with a homicide committed when the officer was acting in the line of duty, I invite the
legislature to revisit its legislation in this regard. There can be no doubt that a police officer
is in a markedly different position of heightened awareness than that of the normal citizen
when the officer is carrying out his or her duties to investigate suspicious activity and
confront those who may pose an immediate danger to the officer’s personal safety as well as
the safety of others. However, because the jury instructions given by the trial court in this
case are accurate model instructions based on the law as it currently stands, I agree there was
no error committed by the trial court. For these reasons, I concur in the affirmance of
Davis’s conviction for negligent homicide.
Robert A. Newcomb, for appellant.
Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.
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