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Berks v State of Arkansas

Case No. CACR12-478 (AR Ct. App., Mar. 27, 2013)

Appellant Jonathan Berks was convicted by a jury of second-degree murder and aggravated residential burglary in connection with the beating death of his neighbor, Wallace Taylor. The jury recommended consecutive sentences of thirty years’ imprisonment on each count, which the trial court imposed. On appeal, appellant contends that the trial court erred in (1) denying his motion for directed verdict; (2) certifying a witness as an expert without conducting a Daubert/Foote hearing; (3) denying his motion in limine to exclude the finding that sexual-abuse allegations he made against the victim were unsubstantiated; and (4) allowing DNA evidence over his objection that it was untimely. We find no error and affirm the trial court’s order.

On April 16, 2010, police and emergency medical technicians were dispatched to Wallace Taylor’s home in Hot Springs Village after Jean McCarthy called 911 from his home. Ms. McCarthy testified that she and Mr. Taylor had been dating since January 2010 and had planned to go to a party that day. When Mr. Taylor did not pick her up at 4:15 as planned, she drove to his house. She testified that the garage was open, the grill was out front, and the door was ajar. She went in, found Mr. Taylor unresponsive and lying on the kitchen floor, and called 911. She said that there was blood all over the phone.

Daniel Stramp, a paramedic, testified that he arrived at Mr. Taylor’s home at 4:51 p.m. on April 16, 2010. He said that he noticed a ladder lying on the floor of the garage when he arrived. He went inside and saw Mr. Taylor on his back in the kitchen, looking very sick. Matthew Boyd, a Hot Springs Village police officer, testified that when he arrived at Mr. Taylor’s home, he saw the paramedics working on Mr. Taylor, who was lying on the kitchen floor wearing only a pair of boxer shorts. He said that Mr. Taylor was bruised on his face and head and that there was blood on the carpet and the floors in the house. Officer Boyd said that Mr. Taylor’s face was covered in dried blood, his eyes were swollen and black and blue, he had a large abrasion on his chest, and he had trouble breathing. He testified that Mr. Taylor’s heart stopped while the ambulance was en route to the hospital.
 

 

Judge(s): Rita W. Gruber
Jurisdiction: Arkansas Court of Appeals
Trial Court Judge(s)
John Wright

 
Court of Appeals Judge(s)
Rita Gruber
Kenneth Hixson
Larry Vaught

 
Appellant Lawyer(s) Appellant Law Firm(s)
Joseph Self

 
Appellee Lawyer(s) Appellee Law Firm(s)
Kent Holt Office of the Arkansas Attorney General
Dustin McDaniel Office of the Arkansas Attorney General

 

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identified in daubert where they are reasonable measures of the reliability of expert scientific community were admissible. the arkansas supreme court adopted the reasoning reliability, and to decide whether or when special briefing or other proceedings are he had a large abrasion on his chest, and he had trouble breathing. he testified that mr. february 26, 2010, that the allegations were unsubstantiated. appellant claims that the state of arkansas the admissibility of evidence absent an abuse of that discretion. green v. alpharma, inc., 373 at the home of mutual friends. they left the friends’ house to go for a ride and drink some relevant testimony is reliable. our opinion in [general electric co. v.] joiner [522 u.s. he arrived at mr. taylor’s home after the paramedics had taken mr. taylor to the hospital. for his first point, appellant argues that the trial court erred in denying his motions for deciding in a particular case how to go about determining whether particular expert character that it will, with reasonable certainty, compel a conclusion one way or another. brian nickles, a sergeant with the hot springs village police department, testified that although the jury might have determined that mr. taylor’s injuries were caused by and called 911. she said that there was blood all over the phone. filed an allegation of sexual misconduct with his children against mr. taylor in january 2010, hematoma to the brain caused by blunt-force injury and that the manner of death was across the street from appellant’s home. mr. livesay testified that both appellant and mr. stayed with appellant for three weeks while he looked at homes. mr. taylor bought a home supreme court’s reasoning in kumho tire co. v. carmichael, 526 u.s. 137 (1999)—in which the top of the asics-brand shoe matched the pattern of the impression on the tank top. in the police department. testimony. rather, we conclude that the trial judge must have considerable leeway in opinion delivered march 27, 2013 jonathan hersh berks appellant was 1 in 1,132,000 and on the cutting from the left shoe and appellant was 1 in ark. 378, 397, 284 s.w.3d 29, 43 (2008). in the case before us, mr. humphries opined on mr. taylor’s abdomen, in addition to scrapes, bruises, and abrasions on the forearms and daniel stramp, a paramedic, testified that he arrived at mr. taylor’s home at 4:51 p.m. april 5, 2010, and appellant said that his wife and children were gone for the week. appellant a pair of shoes in the nearby creek and he asked appellant what he was doing. appellant told in the courts of arkansas (including the subject area of latent prints and the sub-area of shoe allegations were relevant to show motive in this case. we hold that the trial court did not 11 daubert factors may or may not be pertinent in assessing reliability, depending on the nature 1,164,000 in the caucasion population. expressed a fear of appellant. floor wearing only a pair of boxer shorts. he said that mr. taylor was bruised on his face and measures of reliability in a particular case is a matter that the law grants the trial judge determined to have been imprinted on mr. taylor’s bloody shirt were appellant’s. several chief latent examiner for the arkansas state crime lab; that he had received his latent-print finally, appellant contends that the trial court abused its discretion in denying his needed to investigate reliability, as it enjoys when it decides whether or not that expert’s state crime lab, testified that the probability of selecting an individual at random from the clothes in a barbeque pit in the park ground, and that he had dumped his tennis shoes in a 5 part of their search for “truth” and the “jus[t] determin[ation]” of proceedings. fed. trial court’s decisions about how to determine reliability as to its ultimate conclusion. stephen erickson, the deputy chief medical examiner at the arkansas state crime lab, stopped, appellant asked him to open the trunk. mr. robinson said he saw appellant dipping witnesses testified that mr. taylor was afraid of appellant. several witnesses testified that tennis shoes was mistakenly delayed, and a report was not issued until several days before trial. testimony.” 522 u.s. at 138–139, 118 s.ct. 512. that standard applies as much to the county circuit court consistent with and could have been made by the shoes submitted. he testified that the looked at mr. taylor’s house when mr. livesay was backing his car out of appellant’s cite as 2013 ark. app. 203 certification in 1996; that he had attended numerous seminars, schools, and workshops on thereto in the form of an opinion or otherwise.” under daubert and foote, the trial court must taylor called him in early 2010 and expressed the desire to sell their homes and move away cite as 2013 ark. app. 203 at a pretrial hearing on october 17, 2011, the state recognized that the dna 136 (1997)] makes clear that a court of appeals is to apply an abuse-of-discretion no. cacr12-478 evidence had been mistakenly delayed and stated that if the defense wanted to move for a 7 in admitting the resolution of his sexual-abuse allegations against mr. taylor. appellant had trial, although the results from the dna tests were in. moreover, although appellant knew 12 the trial court’s order. hematoma. wallace taylor’s home in hot springs village after jean mccarthy called 911 from his home. cite as 2013 ark. app. 203 robinson said, “you really beat him up kinda bad?” appellant answered, “yeah. i beat him continuance, the state would have no objection. appellant made no motion at that time, nor threatened to kill mr. robinson’s mom if he said anything. he testified that appellant came count, which the trial court imposed. on appeal, appellant contends that the trial court erred ms. mccarthy testified that she and mr. taylor had been dating since january 2010 and had qualified as an expert in latent prints and the sub-area of shoe prints over appellant’s objection. evidentiary decisions for an abuse of discretion. williams, 2011 ark. app. 675, at 8, 386 a fall, it did not. there was ample testimony and evidence that mr. taylor’s death was caused appellee were found on the floor. dr. erickson opined that mr. taylor’s death was a homicide caused of daubert for evaluation of scientific evidence under the arkansas rules of evidence in farm in determining when a daubert/foote analysis is necessary in a particular case, the exclude other asics shoes of the same type, make, size, and design. on cross-examination, he broad latitude to determine. documentation—in comparing the recovered tennis shoes and the bloody imprint he found cite as 2013 ark. app. 203 testimony. trial court did not abuse its discretion in denying appellant’s request to exclude this evidence. abuse its discretion in admitting this evidence. cite as 2013 ark. app. 203 been bumped. robinson said that appellant was “freaking out” and “sweating like crazy.” appellant appellant’s dna was on the shoes. jennifer beaty, a forensic dna examiner for the arkansas 2 in minnesota and one he knew in hot springs village, testified that mr. taylor had recently by blunt-force trauma to his head. dna evidence indicated that the shoes that were later purpose of evidence is to disclose a motive for a killing, anything that might have influenced arrived. he went inside and saw mr. taylor on his back in the kitchen, looking very sick. by his house the next day and said, “are we good? . . . don’t snitch on me, man.” mr. a pair of glasses that were bent and had blood on them. there was also blood spatter on the appellant arkansas court of appeals walls in the bathroom. he said that he discovered a broken watch with what he suspected from each other. he said that he told both of them that it would have been a bad financial allegations, the crimes against children division of the arkansas state police concluded on discretion. williams v. state, 2011 ark. app. 675, at 8, 386 s.w.3d 609, 614. where the to testimony that a ladder was lying on the floor of the garage, suggesting that mr. taylor 240, 262, 100 s.w.3d 715, 729 (2003). up.” mr. robinson said that, on the day after the murder, he and appellant saw each other general population having the same genetic markers on the cutting from the right shoe and surrounding appellant’s allegations against mr. taylor and his state of mind regarding those standard when it “review[s] a trial court’s decision to admit or exclude expert door was ajar. she went in, found mr. taylor unresponsive and lying on the kitchen floor, on april 16, 2010. he said that he noticed a ladder lying on the floor of the garage when he the paramedics testified that the contents of the home had been disturbed, that there was less than three months before mr. taylor’s death. after conducting an investigation of the dustin mcdaniel, att’y gen., by: kent g. holt, ass’t att’y gen., for appellee. testimony is valid and whether the reasoning and methodology used by the expert has been will often be appropriate for use in determining the reliability of challenged expert police and took the police to the creek where appellant had left his shoes. never touch another child. appellant said that he had kicked, kneed, and elbowed the victim bobbie humphries, the chief latent examiner for the arkansas state crime lab, was of intellectual rigor that characterizes the practice of an expert in the relevant field. submitted to him to examine. he determined that transfer impressions on the shirt were 3 affirmed united states, 293 f. 1013, 1014 (1923), pursuant to which only expert opinions that were for his third point on appeal, appellant argues that the trial court abused its discretion 553 (2000). evidence of circumstances that explain the act, show a motive, or illustrate the judge that sexual-abuse allegations he made against the victim were unsubstantiated; and (4) 10 the half-bath. he also saw blood on the sink and the countertop, near the toilet, and on the arkansas rules of evidence provides, “if scientific, technical, or other specialized knowledge was blood on it on the floor and a yellow tank top with suspected blood stains in the den. the she drove to his house. she testified that the garage was open, the grill was out front, and the eventually discovered and brought to the police department, he noticed that the pattern on under the federal rules of evidence. the court rejected the long-used test from frye v. did he move for a continuance at the pretrial hearing on october 24, 2011, two days before a jury convicted appellant of second-degree murder and aggravated residential s.w.3d at 614. wall and on two glass display cabinets. he said that there was blood on the coffee table and blood all through the house, and that mr. taylor’s broken glasses, watch, and hearing aid discussed the objective of the trial judge’s gatekeeping requirement as follows: decision to sell at that point. mr. livesay testified that he went to dinner with appellant on rule evid. 102. thus, whether daubert’s specific factors are, or are not, reasonable decision to admit this testimony. of the issues, and misleading of the jury. injuries to the head and face. he said that the severity of the injuries was consistent with a and that he had used a baby ruth mini-slugger, which he threw into the river next to the up pretty good. i beat the hell out of him, yeah.” mr. robinson gave a statement to the he said that he saw blood on the floor in the hallway, the living room, the laundry room, and matthew boyd, a hot springs village police officer, testified that when he arrived at mr. division i pattern had to have been made by an asics shoe with the same pattern, but he could not taylor’s heart stopped while the ambulance was en route to the hospital. mr. taylor had molested appellant’s three kids and that he wished “someone would beat him expert’s methods is properly taken for granted, and to require appropriate proceedings conducting a daubert/foote hearing; (3) denying his motion in limine to exclude the finding explained that appellant and mr. taylor had been friends in minnesota and that mr. taylor creek where they would never be found. mr. jones said that, although he did not remember head and that there was blood on the carpet and the floors in the house. officer boyd said in the less usual or more complex cases where cause for questioning the expert’s taylor. the jury recommended consecutive sentences of thirty years’ imprisonment on each the trial court has broad discretion in evidentiary rulings, and this court will not burglary. appellant brings four points on appeal. continuance in spite of the state’s willingness to accede to a continuance. we hold that the vaught and hixson, jj., agree. appellant next contends that the trial court erred in certifying mr. humphries as an conduct a hearing to determine the admissibility of mr. humphries’ testimony or in its homicide. he testified that he could directly relate the external evidence of assault from the directed verdict on both counts because the proof was ambiguous regarding whether mr. v. state, 91 ark. app. 86, 89, 208 s.w.3d 812, 815 (2005). the test is whether there is finally, we have continued to maintain that trial courts have broad discretion in ruling to his department. he described the methodology he used—photographs and overlay driveway on the way to dinner, and appellant said, “i might just have to kill him.” in cite as 2013 ark. app. 203 court has broad latitude in determining the reliability of an expert’s testimony and that the he testified that the yellow tank top and the asics tennis shoes found in the creek were january 2009, testified that appellant introduced him to wallace taylor in july 2009. he prolonged assault. he also discovered two rectangular-pattern injuries on the right flank of addition, several friends of mr. taylor, one whom mr. taylor had known for seventeen years knees, consistent with a fall. dr. erickson opined that mr. taylor died from a subdural make a preliminary assessment of whether the reasoning or methodology underlying expert police investigation to his internal physiological finding of the cause of death, the subdural been excluded as not relevant or, under rule 403 of the arkansas rules of evidence, because allowing dna evidence over his objection that it was untimely. we find no error and affirm accused’s state of mind may be independently relevant and admissible. id. the circumstances if the stains on the shirt were blood stains and to determine what made the pattern that was based on a scientific technique that was “generally accepted” as reliable in the relevant cite as 2013 ark. app. 203 appellant giving him the victim’s name, appellant told him that he and the victim had been motion to exclude the dna evidence obtained from the tennis shoes. dna testing of the reverse a trial court’s ruling on the introduction of evidence unless it has abused that rita w. gruber, judge honorable john h. wright, only the evidence that supports the verdict and viewing the evidence in the light most tank top was bagged, sealed, and eventually sent to the arkansas state crime lab to determine appellant mentioned harming mr. taylor before he was killed. mr. jones and mr. robinson 9 latent prints and on tire and shoe-pattern impressions; that he had been certified as an expert testimony. it is to make certain that an expert, whether basing testimony upon prints); and that all shoe and tire impressions that come to the arkansas state crime lab come beers. mr. robinson said they first went to appellant’s house, where appellant retrieved a of the issue, the expert’s particular expertise, and the subject of his testimony. the court in (1) denying his motion for directed verdict; (2) certifying a witness as an expert without the objective of that requirement is to ensure the reliability and relevancy of expert cite as 2013 ark. app. 203 appellant asked mr. robinson to stop the car so he could use the restroom. once they were aggravated residential burglary in connection with the beating death of his neighbor, wallace bureau mutual ins. co. v. foote, 341 ark. 105, 14 s.w.3d 512 (2000). rule 702 of the could have fallen. he also points to dr. erickson’s admission that he could not exclude the joseph c. self, for appellant. otherwise, the trial judge would lack the discretionary authority needed both to avoid its probative value was substantially outweighed by the danger of unfair prejudice, confusion testified that appellant told them he had beaten someone and gave specific details. considering leonard livesay, the realtor who sold appellant his home in hot springs village in cite as 2013 ark. app. 203 that the shoes were being tested, appellant never sought his own expert nor filed a motion for possibility that the blunt-force injuries were caused by falling. that mr. taylor’s face was covered in dried blood, his eyes were swollen and black and blue, time to conduct his own analysis of the evidence. once again, we review a trial court’s friends in minnesota and that he had gotten the victim to move to hot springs village. substantial evidence to support the verdict, which is evidence that is of sufficient force and the imprint found on a yellow tank top in mr. taylor’s house. he testified that he was the all, and not just scientific, expert testimony—is helpful. the court emphasized that the trial a friend of appellant’s, stephen robinson, testified that appellant had told him that 6 on the day of trial, appellant orally moved to exclude the evidence because he did not have professional studies or personal experience, employs in the courtroom the same level said that he could not state what size or style asics made the impression. baughman v. state, 353 ark. 1, 5, 110 s.w.3d 740, 743 (2003). v. is an issue for the fact-finder, who is free to believe all or a portion of any witness’s testimony the shoes from the creek were submitted to the crime lab for analysis, and partial taylor’s death was caused by another person and because the only evidence placing appellant the commission of the act may be shown. gaines v. state, 340 ark. 99, 108, 8 s.w.3d 547, testimony is reliable. that is to say, a trial court should consider the specific factors appellant told mr. jones that the victim had touched his children and that the victim would favorable to the state, we hold that substantial evidence supports the jury’s verdict. found on the shirt. sergeant nickles testified that when appellant’s tennis shoes were the trial court must have the same kind of latitude in deciding how to test an expert’s nor do we deny that, as stated in daubert, the particular questions that it mentioned planned to go to a party that day. when mr. taylor did not pick her up at 4:15 as planned, affirmed. and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. cite as 2013 ark. app. 203 properly applied to the facts of the case. coca-cola bottling co. of memphis v. gill, 352 ark. [no. cr-2010-248-i] qualified as an expert by knowledge, skill, experience, training, or education, may testify appellant jonathan berks was convicted by a jury of second-degree murder and in mr. taylor’s home was a shoe imprint found on a tank top in the home. appellant points him not to worry about it and said that he had “beat up somebody pretty good.” mr. 8 4 parameters a trial court should consider in determining the admissibility of scientific evidence when the sufficiency of the evidence is challenged, we consider only the evidence that performed the autopsy on mr. taylor. he testified that there were numerous blunt-force taylor’s home, he saw the paramedics working on mr. taylor, who was lying on the kitchen pharmaceuticals, 509 u.s. 579 (1993), the united states supreme court set forth the unnecessary “reliability” proceedings in ordinary cases where the reliability of an kumho tire co., 526 u.s. at 152–53. white garbage bag that he put in the trunk. then they drove to a small side road, and finally, anthony jones, who shared a jail cell with appellant for about three weeks, on the admissibility of scientific evidence, and we will not reverse the trial court’s ruling on harris v. state, 72 ark. app. 227, 232, 35 s.w.3d 819, 822–23 (2000). witness credibility appeal from the garland cite as 2013 ark. app. 203 expert witness without conducting a daubert/foote hearing. in daubert v. merrell dow cite as 2013 ark. app. 203 on the shirt. we hold that the trial court did not abuse its discretion in its decision not to on april 16, 2010, police and emergency medical technicians were dispatched to that the table appeared to have been displaced. it also looked like the display cabinets had formal living room, he observed “quite a bit of blood,” a hearing aid covered in blood, and will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness admission of this conclusion was highly prejudicial to him and that the evidence should have by a prolonged assault and that appellant was the perpetrator. the investigating officers and reliability arises. indeed, the rules seek to avoid “unjustifiable expense and delay” as the court held that the trial judge’s basic gatekeeping function imposed in daubert applies to supports the verdict, viewing the evidence in the light most favorable to the state. lefever testified that appellant told him that he had beaten someone to death, that he had burned his dna profiles were obtained from cuttings taken from each shoe. the results indicated that


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