WILLIE LEE DOBY, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CR-14-430]
HONORABLE RICHARD L. PROCTOR, JUDGE
Law Firm, by: Michael Kiel Kaiser and William O.
"Bill" James, Jr., for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE
State alleged that Willie Lee Doby shot Lewis Thompson during
an argument on Doby's front porch in the wee hours one
morning in August 2014. A St. Francis County jury convicted
Doby of first-degree murder. Doby was then sentenced to
twenty-seven years' imprisonment in the Arkansas
Department of Correction. He appeals and argues five points
why the circuit court should be reversed:
1. The circuit court erred in excluding a defense
investigator pursuant to Arkansas Rule of Evidence 615.
2. The circuit court erred in permitting the State to bolster
Khalilah Thompson's testimony by playing a recording of
her prior consistent statement to the jury that was
3. The circuit court erred in denying Doby's mistrial
motion after the jury heard Thompson's recorded statement
that Doby used bleach to wash gunshot residue from his hands
and hid the murder weapon.
4. The State produced insufficient evidence to support
Doby's first-degree murder conviction.
5. The felony information was fatally flawed because the
State "failed to set forth the principal language of the
first-degree murder statute."
fourth point on appeal, which we must address first because
of potential double-jeopardy concerns, is that the circuit
court erred by denying his motion for a directed verdict
because the evidence does not sufficiently support his murder
conviction. Rankin v. State, 329 Ark. 379, 385, 948
S.W.2d 397, 400 (1997). At the end of the State's case
Doby argued that the murder charge should not be submitted to
the jury because "[t]he facts have not been
established." This general statement does not preserve
the motion for appellate review under our case law or Rule
33.1(b) of the Arkansas Rules of Criminal Procedure, which
requires that a directed-verdict motion based on insufficient
evidence must specify in what manner the evidence is
deficient; a motion merely stating that the evidence is
insufficient does not preserve the issue for appellate
review. Merchant v. State, 2017 Ark.App. 576, at 3,
___ S.W.3d ___, ___.
turn to Doby's first point on appeal and hold that the
circuit court abused its discretion in excluding a member of
the defense team under Arkansas Rule of Evidence 615. And
because we cannot say that the error was harmless, we must
reverse and remand the case for proceedings consistent with
this opinion. To be clear, we remand the case for further
proceedings rather than dismiss it because our reversal is
not related to Doby's guilt or innocence. See
generally United States v. Scott, 437 U.S. 82, 90-91
(1978) (The successful appeal of a judgment of conviction,
except on the ground of insufficiency of the evidence to
support the verdict, does not bar further prosecution on the
first day of trial, in front of the entire jury pool, the
circuit court introduced the defendant and the parties'
attorneys. The court instructed the jury on the basics of
reasonable doubt and the charges Doby faced. The court next
stated, "I would ask the State to, to call the witnesses
who may be expected to testify in this matter." The
Micah Lacy, Leslie Summers, Khalilah Thompson, Travis
Williams, Angelo Banks, Dominic Madden, Dr. Charles P. Kokes,
and Angela Hirtzel, a criminologist with the Arkansas Crime
Lab. In addition, various members of the Forrest City Police
Department, including: Jeff Nichols, Cassandra Applewhite.
These are officers, Your Honor. Darren Smith, Preston Gracy,
Adrian Winfrey, Eric Varner, Morris McNutt.
counsel then confirmed to the court that he did not expect to
call any witness and that the prosecutor had "named all
the possible witnesses." The court then asked the
jurors, "Are any of you personally, or any immediate
member of your family related to, or acquainted with, any of
the attorneys, witnesses, or the Defendant?" Eventually,
the jury was selected.
the jury was empaneled but before opening arguments began,
Doby requested a bench conference outside the jury's
hearing. Defense counsel explained that he requested the
conference because the prosecutor had asked that "the
Rule" be applied to Investigator Speir, an investigator
that the Public Defender Commission had hired to assist in
Doby's defense. In defense counsel's words,
Investigator Speir was his "work product . . . an
extension of me, as the attorney, doing the
investigation." The prosecuting attorney denied that he
intended to call Investigator Speir to testify about anything
that could be considered work product. The prosecutor, in
[W]e have several instances here where people have said that
things were said to them in the presence of other people that
they considered to [be] intimidating. Now if I have to set
about to prove that, I want the witnesses available to do it.
came this colloquy:
Court: What does that have to do with Mr. Speir?
Prosecutor: Well, Mr. Speir would have been present at the
time some of these conversations were had.
Court: Is that speculation? Or is that something that
you're pretty sure of?
Prosecutor: It's something I was told, not under oath,
while this case was being tried. I have not been in a
position to go put together that case. But in case I ever
have to do, have to introduce testimony about that incident
in this case, I want the witnesses available to do it with.
Court: Mr. Coleman [defense counsel]?
Defense: Once again, Your Honor, I don't know what
he's talking about. But the thing is, even if the Court
were to say, 'Okay, well he might have some evidence,
' he was not listed as a witness. He was not voir dired
to the jury. Nobody brought him up. He's been sitting
here. He's here to assist me.
Court: Do you agree with me that if John Doe was sitting back
in the back that Mr. Long [prosecutor] could call him as a
witness, if he wanted to? Whether he's subpoenaed or not?
Defense: No, Your Honor. We, that's why we have witness
lists ahead of time and we talk about the witnesses.
You're opening it up-
Court: No, I'm not opening anything. I'm just asking
you a question.
Defense: No, I don't think so. Especially cause you,
that's why we voir dire the jury. Have you, do you know
any of the witnesses? Do you know anything about the
witnesses? And I'm just, like I said, neither one of us
know what he's talking about. But the thing is, I do not
think that there's anything he could talk about, if
he's doing stuff.
Court: . . . Anybody else want to say anything?
Prosecutor: Judge, again, it has to do with conversations had
in the presence of certain [of] our witnesses, about
consequences of testifying. Mr. Speir was present at the time
of the conversations. If this all has to come up, you have to
make an evidentiary ruling based on it. Then he's going
to be called as a witness. And at that point in time Mr.
Coleman [defense counsel] will be able to say, "He's
under the Rule, he can't testify." And he would be
right. I'm trying to protect ...