Michael Davis v. State of Arkansas

Cite as 2023 Ark. App. 403
ARKANSAS 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.

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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 applicable 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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