Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doty v. State

Supreme Court of Arkansas

October 20, 2016



          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

          PAUL E. DANIELSON, Associate Justice

         Appellant Adam F. Doty was convicted of first-degree battery in the White County Circuit Court and sentenced to ten years' imprisonment. The Arkansas Court of Appeals affirmed. Doty v. State, 2015 Ark.App. 193. Doty subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015). The circuit court denied the petition after a hearing. Doty now appeals, arguing that his trial counsel was ineffective in three ways: (1) failing to obtain a recording of a 911 call that would have corroborated the testimony of a defense witness; (2) erroneously advising a defense witness to omit certain remarks from his testimony; and (3) failing to use available exhibits to discredit assertions of certain prosecution witnesses. We affirm the denial of postconviction relief.

         Doty's first-degree-battery charge stemmed from a shooting that occurred on the evening of September 1, 2013. The victim, Justin Yandell, testified at trial that he, his father, and his brother heard gunfire close to their home and then heard shotgun pellets hitting their barn. Justin and his brother, Josh Yandell, approached their fence line to investigate, with Justin carrying a holstered pistol in the waistband of his shorts. At the fence line, they met Jesse Wood, who was with his young son collecting doves that had been shot. The Yandells had a conversation with Wood, who informed them that he was also with his father-in-law, George "Skip" Doty, and his brother-in-law, Adam Doty. The party was dove hunting on nearby property that they believed to be their family land. Justin recognized Skip Doty's name and decided to approach him to speak to him about the gunfire. According to Justin's trial testimony, he removed his pistol from his waistband and left it on the ground near the fence line before walking approximately eighty to one hundred yards to where the Dotys were. Wood followed behind him, and Josh Yandell returned home.

         Justin testified that he found Skip and Adam Doty sitting in lawn chairs, holding shotguns. As he approached, he asked, "Are you Skip Doty?" At that point, Adam Doty came up behind Justin and hit him behind the right ear with the butt of his shotgun. Justin and Adam then fought over Adam's shotgun, with Justin eventually wrestling the gun away. As Justin staggered backward, holding the shotgun so that the barrel pointed toward the sky, Adam retrieved a pistol from his pocket and shot Justin in the knee. Justin testified that, as he begged for someone to call 911, the Dotys and Wood began packing up their equipment. Josh Yandell arrived minutes later, followed by their father, Jerry Yandell. According to the Yandells' testimony, the Dotys and Wood held their guns in the Yandells' faces and made threats to all of them at various points.

         Doty presented a justification defense. Wood testified that Justin did not leave his pistol at the fence line and that he carried it down to where he found the Dotys. Both Skip Doty and Adam Doty testified that they observed Justin reaching for something behind him as he approached, and Adam stated that he saw the pistol in Justin's waistband. According to Adam, Justin was very aggressive in his approach, and Adam believed that Justin would shoot either him or his father. Recordings of five 911 calls were introduced into evidence at trial: three from Josh Yandell, one from Skip Doty, and one from Wood's son.

         Doty waived his right to a jury trial and was found guilty and sentenced by the court. He attempted to challenge the sufficiency of the evidence on appeal, arguing that the State failed to negate his claim of justification. Doty, 2015 Ark.App. 193. The court of appeals held that the argument was not preserved because Doty failed to renew his dismissal motion at the close of all the evidence. See id. The mandate issued on April 23, 2015.

         On June 17, 2015, Doty filed the instant Rule 37 petition, which raised three issues. First, Doty argued that his trial counsel was ineffective for failing to obtain a previously undiscovered sixth 911 call. In this recording, county dispatch called Skip Doty back shortly after the altercation in order to ascertain where he and the other members of his party were. In short, Skip Doty informed dispatch that they were waiting on police and had not attempted to flee. This recording was apparently never handed over to the defense because the State did not know of its existence.[1] Doty alleged that his trial counsel should have discussed with his father whether he made the 911 call so that a specific request could have been made for it. Second, Doty argued that his trial counsel was ineffective for erroneously advising his father not to testify that he should have shot or almost did shoot Justin Yandell himself. Doty contended that this advice was unreasonable and that it adversely affected his father's credibility. Third, Doty argued that his trial counsel was ineffective for failing to introduce photographs and ballistics information[2] that purportedly would have called into question the Yandells' assertion that their property was being pelted by gunfire. Doty maintained that this evidence would have discredited the entire premise on which the incident allegedly started.

         After a hearing, the circuit court entered its order denying Doty's Rule 37 petition on October 28, 2015. The court found that Doty's trial counsel had given him and his father an opportunity to listen to the five 911 calls provided in discovery and that, in any event, Doty was not prejudiced by the absence of the sixth recording, which could have been used to impeach Skip Doty based on inconsistencies with his testimony. The court further found that trial counsel's advice regarding Skip Doty's testimony was reasonable trial strategy and that the photographs established nothing other than the crime-scene location. Doty filed a timely notice of appeal.

         This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. See, e.g., Taylor v. State, 2015 Ark. 339, 470 S.W.3d 271. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. See id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See id.

         On review of claims of ineffective assistance of counsel, this court follows the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See id. Under that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. See id. The benchmark for judging a claim of ineffective assistance of counsel must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Sherman v. State, 2014 Ark. 474, at 2, 448 S.W.3d 704, 708 (per curiam) (quoting Strickland, 466 U.S. at 686).

         To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient. See, e.g., Taylor, 2015 Ark. 339, 470 S.W.3d 271. To meet this requirement, a postconviction petitioner must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. See id. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of counsel, which, when viewed from counsel's perspective, could not have been the result of reasonable professional judgment. See id.

         In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. See id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id. The language, "the outcome of the trial, " refers not only to the finding of guilt or innocence but also to possible prejudice in the sentencing. See id. at 5, 470 S.W.3d at 275 (citing Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006)).[3]

         Unless a petitioner under Rule 37 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See, e.g., Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). There is, therefore, no reason for a court deciding an ineffective- assistance claim to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. See id.

         I. Failure to Obtain Missing 911 Call

         For his first point on appeal, Doty contends that his trial counsel provided ineffective assistance by failing to obtain the previously undisclosed sixth 911 call. As Doty points out, his father was cross-examined at trial regarding his conversation with dispatch following the altercation:

Prosecutor: [W]hy didn't wait there for the police to get there?
Skip Doty: We did.
Prosecutor: Not at the scene of the shooting.
Skip Doty: Because the people there that wanted to do us harm were right there. We left to where they were and went to the truck and I-and I unloaded all of our weapons and I talked to the 911 and she said, seems to me like the story-she said where are you? And I said we're standing here at the end of our lane. And they-you know, they're not coming down here. And she said, well they're-she said I thought that-
. . . .
Skip Doty (continuing): She said that's not-that's not the story that I'm hearing. She said I'm-she said that they're saying that you all have guns and you're going to go to war with the police. I said, no, ma'am. I said we're-we're right here and I'll just walk down there to them if you'll let them know that nobody's here to do anybody harm. We-we've been attacked and we just defended ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.