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Duck v. State

Supreme Court of Arkansas

September 27, 2018

KEVIN CONWAY DUCK APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. CR-2013-649-I] HONORABLE JOHN H. WRIGHT, JUDGE

          T. Clay Janske and Brian L. Johnson, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          KAREN R. BAKER, ASSOCIATE JUSTICE

         On March 31, 2017, a Garland County Circuit Court jury convicted appellant, Kevin Conway Duck, of first-degree murder and sentenced him to life imprisonment. Because Duck does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. McMiller v. State, 2014 Ark. 416, 1, 444 S.W.3d 363, 364.

         This appeal stems from the death of Dawna Natzke on or around December 21, 2011. The record demonstrates that Duck and Natzke were involved in a romantic relationship. On December 21, 2011, Duck, Natzke, and Natzke's mother, Doris Smith, attended a Christmas party together in Hot Springs Village. Around 10:30 p.m., Duck and Natzke left the party together. After they left the party, Natzke was not seen again. The following day when Natzke did not report to work and her family could not reach her, the family notified law enforcement that Natzke was missing. On December 31, 2011, Natzke's remains were located near a pond outside Hot Springs Village. Duck was developed as a suspect, charged and convicted as described above. Duck timely appealed and presents two issues on appeal: (1) the circuit court erred in denying Duck's motion to exclude the State's expert witness's testimony and motion for mistrial based on an alleged discovery violation and (2) the circuit court erred by admitting text messages that were obtained through a subpoena and not a warrant.

         I. Brady Violation

         For his first point on appeal, Duck contends that the circuit court erred by denying Duck's motions to exclude testimony of expert witness Agent William Shute of the FBI and his motion for mistrial for use of Shute's testimony. Both motions were made based on alleged discovery violations.

         "To establish a violation of Brady v. Maryland, 373 U.S. 83 . . . (1963) by the State's withholding of evidence, the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence must have been suppressed by the State, either willfully or inadvertently; prejudice must have ensued. Howard v. State, 2012 Ark. 177, at 8, 403 S.W.3d, 36, 44." Isom v. State, 2015 Ark. 225, at 2, 462 S.W.3d 662, 663. "Brady . . . requires the State to disclose all favorable evidence material to the guilt or punishment of an individual. For a true Brady violation, [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. . . . The reasonable probability standard is applied collectively, not item by item, such that the cumulative effect of the suppressed evidence, and not necessarily each piece separately, must be material. The rule set out in Brady also encompasses evidence known only to police investigators and not to the prosecutor. In order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police." Newman v. State, 2009 Ark. 539, at 13-14, 354 S.W.3d 61, 69 (internal citations and quotations omitted).

         On appeal, "the standard of review for imposing sanctions for discovery violations is whether there has been an abuse of discretion. A prosecutorial discovery violation does not automatically result in reversal. The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose. Absent a showing of prejudice, we will not reverse." Hicks v. State, 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000) (internal citations omitted).

         At issue are the Verizon records for Duck's cellular phone and Agent Shute's report generated based on the records. This issue was litigated at the circuit court level and the procedural history is as follows. On November 25, 2013, Duck was charged with first-degree murder and the affidavit for arrest provided that the State used Agent Shute to analyze Duck's cell phone. On December 4, 2013, Duck filed a discovery motion seeking the report. On December 9, 2013, Duck filed a second discovery motion seeking the report. On February 10, 2014, the circuit court held a status hearing and Duck requested the report, but the State responded that a formal report had not been completed at that time and anticipated having the report completed in one month. The circuit court ruled that if the report was not available in three weeks the trial would be rescheduled. On January 27, 2015, Duck filed a motion to exclude Agent Shute's report, asserting that the State had not timely turned over Shute's report. On February 3, 2015, the State provided Duck with the Shute's report in the form of a PowerPoint presentation. On February 9, 2015, the circuit court held a hearing and denied Duck's motion to exclude Shute's report. Duck sought a continuance, which was granted.

         On January 29, 2016, Duck filed a motion for supplemental discovery seeking cell phone records and cell phone triangulation and alleging that he needed the original digital files from the phone company. On March 14, 2016, Duck filed a motion to compel request for supplemental discovery asserting that the State had not complied with its January 29, 2016 request for supplemental discovery. On March 18, 2016, the circuit court held a hearing regarding the motion for supplemental discovery and the motion to compel regarding the cell phone records. Duck relied on an affidavit from his expert witness, Ben Levitan, that contended the cell phone records he had received were not adequate. Levitan's affidavit contended that the documents Levitan received from the State did not show the cell tower used by Duck for each call on the dates in question, and that the order of records was not in the order normally used by Verizon and was not the original document. The affidavit also stated that the records indicated that the State received the original text messages. In sum, the affidavit stated that the documents received were not the originals and were scanned, marked up, and highlighted copies. Further, the affidavit opined that based on the documents shared with Duck, it is unclear how the State could arrive at specific opinions about Duck's location and movements of Duck on December 22, 2011. The circuit court ruled that a new subpoena was to be issued to Verizon and Duck's expert would be allowed to generate what information the subpoena requested from Verizon so there would be no dispute as to what had been submitted or provided by Verizon; and that it would be accessible to Duck in the form delivered by Verizon. The circuit court entered an order requiring the State to immediately supply Duck with a complete set of all original and unaltered phone records subpoenaed in the case.

         On March 20, 2016, the State provided Duck with additional telephonic records. On March 24, 2016, Duck filed a motion to exclude the State's expert-witness testimony, or in the alternative, motion for continuance. The circuit court denied the motion to exclude and granted the continuance. On June 20, 2016, Duck filed an additional motion for continuance to allow Duck's expert to complete his analysis. On October 5, 2016, the State filed a motion titled "Statement on Phone Records" stating that it had subpoenaed Duck's cell phone records from Verizon in accordance with the circuit court's March 2016 order and that Duck's phone records were kept by a third party, not Verizon, and were only retained for one year. Duck responded and stated that he had the four cell phone site locations Agent Shute used but that his expert witness believed that the cell phone information provided by the State was still incomplete. Duck requested a continuance. On October 10, 2016, Duck again requested another continuance asserting that the State had recently delivered additional discovery to him.

         Prior to the commencement of Duck's 2017 trial, Duck renewed his motions to exclude Agent Shute from testifying, alleging that the State had failed to timely provide all cell phone records. The State responded that it had provided all of the records that Agent Shute relied on in forming his opinion. The circuit court denied the motion. Finally, at trial, Karen Milbrodt, custodian of records for Verizon, testified for the State that she was the custodian of cell phone records. On cross-examination, she testified that the records had been preserved in raw form and that she printed a copy two days before trial. The following day, Duck requested an in-chambers ...


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