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Davis v. State

Court of Appeals of Arkansas, Division IV

October 4, 2017

BILLY JOE DAVIS APPELLANT
v.
STATE OF ARKANS ASAPPELLEE

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-14-410] HONORABLE JODI RAINES DENNIS, JUDGE

          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, JUDGE

         A Jefferson County jury convicted Billy Joe Davis of aggravated robbery, first-degree battery, and theft of property. He appeals his convictions, arguing that the circuit court (1) abused its discretion by denying his request to continue the trial to procure a witness and (2) erred by permitting the State to amend the felony charges at trial. We affirm.

         On August 14, 2014, the State charged Davis with aggravated robbery, first-degree battery, and theft of property against Calvin Jiles. The charges related to a June 24, 2014 incident in which Davis, Aaron Lovelace, Anphernie Harris, and an unknown fourth individual allegedly followed Jiles home from a fast-food restaurant, shot him, and took his money. The State also charged Lovelace and Harris with crimes related to the incident, but their charges were severed from Davis's case. The court set Davis's trial for February 29, 2016. As of the trial date, the State had not charged the alleged fourth individual.

         On the day of trial, Davis's counsel requested a continuance because his witness, Chris McGee, had failed to appear. He asserted that McGee would testify that he was the fourth individual; that Davis drove him, Harris, and Lovelace to Jiles's home to sell drugs, not to rob Jiles; that Davis never exited the vehicle; that Lovelace shot and robbed Jiles; and that Davis did not intend to rob Jiles. Davis's counsel explained that Davis had not remembered McGee's legal name prior to March 2015, [1] but that month, he saw McGee in the Dub Brassell Detention Center in Pine Bluff and obtained his name and birthdate. With this information, Davis's counsel subpoenaed McGee as a witness. Davis's counsel admitted that Davis had spoken with McGee only briefly at the detention center and also acknowledged that he believed McGee may plead the Fifth Amendment rather than testify. Davis's counsel filed an affidavit stating the facts to which he believed McGee would testify at trial.

         The State objected to the continuance, and the court denied Davis's request. In making its ruling, the court noted,

You have no evidence or proof from Mr. McGee that this is what he would testify [to] and that he will not plead the Fifth because, if he does [the State is] going to charge him with aggravated robbery . . . and battery first.

         Thereafter, the case proceeded to trial.

         Jiles testified that he operates a barbeque-catering business. He stated that on June 24, 2014, he was walking into his home following a trip to Church's Chicken when three males approached him. He explained that two of them appeared to be lookouts, while a third individual shot him three times and demanded money. Jiles gave him cash from his pocket along with a check that he had received from a customer, and the men ran away. He identified Davis as one of the lookouts.

         During the State's case, the State moved to amend the criminal charges. In the original charges, as to the first-degree-battery charge, the State alleged that Davis, "[w]ith the purpose of causing physical injury to Calvin Jiles, caused physical injury to Calvin Jiles by means of a firearm." At trial, the State asked to amend the first-degree-battery charge to allege that Davis, "acting alone or with one or more other persons, [Davis] commit[ed] or attempt[ed] to commit a felony, and in the course and furtherance of that felony or flight immediately therefrom, [Davis] or [an] accomplice cause[d] serious physical injury to [Jiles] under circumstances manifesting extreme indifference to the value of human life."

         Davis objected to the amendment, arguing that it fundamentally changed the nature of the original charge, created an unfair surprise, and was extremely prejudicial to his defense. The court disagreed with Davis and granted the State's request to amend the first-degree battery charge.

         Thereafter, the jury convicted Davis of all charges and sentenced him to twenty years' imprisonment for aggravated robbery, ten years' imprisonment for first-degree battery, and six months' imprisonment for misdemeanor ...


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