ADAM F. DOTY APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE WHITE COUNTY CIRCUIT COURT, [NO. CR-2013-419]
HONORABLE ROBERT EDWARDS, JUDGE AFFIRMED.
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
E. DANIELSON, Associate Justice
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.
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.
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.
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.
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.
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. 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 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.
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.
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.
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).
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.
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)).
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.
Failure to Obtain Missing 911 Call
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
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 ...