Cite as 2023 Ark. 90 SUPREME COURT OF ARKANSAS No. CR-22-498
Opinion Delivered: May 25, 2023
DAVID SHAUN WHITE APPELLANT APPEAL FROM THE YELL COUNTY CIRCUIT COURT, NORTHERN V. DISTRICT [NO. 75NCR-20-65] STATE OF ARKANSAS APPELLEE HONORABLE JERRY D. RAMEY, JUDGE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
David White was convicted of first-degree murder for the killing of Steven Burchett
on January 28, 2022, and was sentenced to life imprisonment as an habitual offender. He
now appeals his conviction, raising nine points on appeal. Five arguments are not preserved
for our review, and the other four have no merit. We affirm the conviction.
I. Background
On June 3, 2020, Burchett and a man named Jeremy Johnston left in Burchett’s SUV
from Harkey’s Valley and went to White’s in-laws’ house to pick up money that White’s wife,
Jesse Kendrick, owed Burchett. White and Kendrick rode with Burchett and Johnston to
meet Mike Baker in Dardanelle to get Kendrick’s Social Security card so that she could get
Burchett’s money. Burchett drove, Johnston rode in the front passenger seat, Kendrick in the rear passenger seat behind Johnston, and White in the rear passenger seat behind
Burchett.
On the way to meet Baker, White told Burchett to turn down a road so that he could
check a mailbox at a property Baker owned where he was expecting to receive his stimulus
check. As Johnston got out of the SUV on the front passenger side to check the mailbox,
he heard tires rolling over gravel. He turned around and saw that White had pulled Burchett
over the top of the driver’s seat and into the back seat of the Yukon.
The Yukon was rolling forward because Burchett had not shifted it into park before
White pulled him into the back seat. Johnston jumped in to shift the Yukon into park, but
Kendrick cut him with a knife before he could do so. Kendrick shifted the Yukon into park
and got out of it with a gun and a knife.
As Johnston made his way around the Yukon, he approached the back passenger door
on the driver’s side. Upon arriving, he witnessed White standing over Burchett, who lay face
down in the back seat with his legs dangling out of the open door onto the running board.
White held a knife to him with his hands gripped tightly around Burchett’s throat. Despite
Burchett’s attempts to free himself, White pinned him down and stabbed him with the knife.
White shouted, “You’re dying [expletive],” and “You’re dead, old man.” After he
killed Burchett, White said, “[T]hat’s what you get for talking [expletive] to us.” White then
proceeded to search through Burchett’s pants and truck. He managed to retrieve Burchett’s
wallet, which contained one hundred dollars and then attempted to wrap the body in a tent.
However, White became frustrated with the task and eventually abandoned it. He then
2 pointed his knife at Johnston and ordered him to assist with dragging the body about seventy-
five yards toward a discarded refrigerator on the property. White forcefully placed Burchett’s
body inside the refrigerator and slammed the door shut. He then demanded that Johnston
accompany them, and together they departed in Burchett’s Yukon. Kendrick took the wheel
with Johnston seated beside him, and White, still holding the knife, occupied the rear
passenger seat behind Johnston.
They then made a series of stops for various reasons. First, they headed toward an
old bridge to dispose of certain objects in the river and attempted to cleanse the bloodstains
from the Yukon. Second, they traveled to Dardanelle to meet with Baker and obtain
Kendrick’s Social Security card. Next, they went to New Blaine to acquire drugs from friends
who were camping in the area and then proceeded to Burchett’s camper, located in Harkey’s
Valley, where they obtained heroin. Then they drove back to White’s in-law’s residence to
obtain a bag of clothing for White and Kendrick, and they crossed over Petit Jean Mountain
en route to Conway. Once in Conway, they ran the vehicle through a car wash to discard
additional items and scrub out the Yukon’s interior before stopping at White’s friend’s home
to purchase marijuana.
Their next destination was Clinton, where they pulled over at a residence, and White
exchanged a firearm for methamphetamine. Following this, they headed north toward
Omaha, located near the Missouri state border, and they stopped at Harley Fryer’s house,
where White asked Fryer to fix the knife he had utilized to murder Burchett. Fryer was
unable to comply and handed the weapon back to White. Later on, while White was
3 momentarily distracted and had set the knife down, Johnston discreetly picked it up and left
it resting on the bed rail of a truck that was parked on Fryer’s property.
The following day also involved a series of stops. First, they drove to A.J. Navarro’s
house to get more meth. Second, they drove to Harrison and stopped at White’s brother’s
house for a few hours before making a trip to Walmart. From Harrison, they drove back to
Dardanelle, where they arrived at around 6:00 that evening. They stopped at a gas station
in Dardanelle, and while White was inside the store, Johnston called his grandmother to
pick him up. Johnston’s grandmother took him to Baker’s house, and he told Baker to call
the police. Johnston then met law enforcement officers at Baker’s property, where White
had killed Burchett, and led them to the refrigerator containing Burchett’s body. Then, with
Johnston’s assistance, law enforcement discovered the knife used to kill Burchett at Fryer’s
home. Ultimately, White was found by police hiding in the woods at his in-laws’ house and
was arrested.
In an interview on June 5, 2020, White initially denied any involvement in Burchett’s
murder. He claimed that he dropped Burchett off in Pottsville, went on to Conway without
him, and never heard from him again. He also claimed that the cuts on his hand were “from
the lawnmower.” On June 7, 2020, the Yell County jail detention officers found White
crying on the floor of a holding cell. He then proceeded to tell the officers that he had killed
somebody and that it had “happened so fast.” He did not say at that time that anyone had
attacked him or that he had acted in self-defense.
4 Then, on June 8, White asked to talk to the police again. He confessed to killing
Burchett but claimed he had “reacted badly in self-defense.” He said that when they stopped
to check the mailbox at Baker’s property, he put his hand on Burchett’s shoulder and told
him they could not pay him. According to White, Burchett then cut him with a knife he
had in his hand, and White “flipped out” and “grabbed [Burchett’s] hand, and . . . started
stabbing [Burchett] with it.”
An autopsy determined that the manner of Burchett’s death was homicide caused by
multiple sharp-force injuries––three cuts, and eight stab wounds. Burchett’s body had two
cuts underneath the chin and on the front of the neck and one on the arm near the right
elbow. There were two stab wounds on the right, front part of the neck; one had caused a
thyroid cartilage fracture. There were three additional stab wounds in other areas of the
neck––one had penetrated through the skin and soft tissues of fat and muscle, hitting the
spine. The other two stab wounds on the neck had been inflicted from above and from the
side and downward. There were two stab wounds to the chest; the larger of the two measured
over three inches deep and penetrated through the ribs into the left chest cavity in the area
where the left lung is. The second stab wound was on the lower right abdomen and measured
about four inches deep. Additionally, there were rib fractures that may have been inflicted
after Burchett died because there was no hemorrhage in the area surrounding the soft tissue.
According to the medical examiner, the injuries Burchett sustained would have led to death
by asphyxia, bleeding out, or both.
5 White testified on his own behalf at trial. His version of the events surrounding
Burchett’s death was largely consistent with the State’s evidence, although he claimed he had
acted in self-defense. He said Burchett cut him on his index finger with a small, 1.5-to-2-
inch-blade pocketknife, after which he pulled Burchett over the driver’s seat and into the
back seat of the Yukon. He alleged that Burchett had cut himself “back to front” with the
pocketknife in his own hand when he pulled Burchett over the driver’s seat and ultimately
pushed him face down into the backseat floorboard. He then twisted Burchett’s arm behind
him and stuck the pocketknife in the seat. After that, he got out of the Yukon, walked over
to Johnston, and asked, “What the hell is going on, dude?” Then, he walked back to the
Yukon and saw that Burchett had managed to push himself up off the backseat floorboard,
“maybe eight to ten inches[.]” He pushed Burchett back down and wrestled with him again
over the pocketknife. Finally, he elbowed Burchett in the ribs as hard as he could. He heard
Burchett’s ribs break, after which Burchett “rattled out and died.”
He dumped Burchett’s body in a refrigerator, took one hundred dollars from
Burchett’s wallet, and went to get high. He admitted that the cut on his finger was not life-
threatening. He also admitted that he could have opened the car door and gotten away from
Burchett. Additionally, he admitted that Burchett posed no direct threat to him when he
walked back to the Yukon and hit Burchett in the ribs. He also admitted that he never made
any calls to 911, or to anyone else, for help.
Appellant now appeals, raising nine points for reversal.
6 II. Discussion
The nine arguments that appellant raises are (1) there was insufficient evidence for
White’s murder conviction because the State failed to negate his justification defense beyond
a reasonable doubt; (2) there was insufficient evidence for first-degree murder; (3) the trial
court abused its discretion by admitting the portion of Johnston’s statement alleging that
White “beat the crap out of Brandy May”; (4) the trial court abused its discretion by rejecting
White’s proffered justification instructions and instead instructing the jury on a duty to
retreat that no longer existed; (5) the trial court improperly restricted White from rebutting
the State’s assertion that his flight was evidence of consciousness of guilt rather than fear of
retaliation by Burchett’s associates; (6) the trial court improperly restricted White from
presenting his justification defense by refusing to let him testify to Burchett’s prior violent
acts that were known to him at the time of the offense; (7) the trial court erred by allowing
the prosecutor to misstate the law regarding parole eligibility to the jury; (8) the trial court
erred in determining White to be an habitual offender when the State never included an
allegation of such in the information; (9) the trial court abused its discretion by admitting
irrelevant, overly prejudicial photos of Burchett’s body.
A. Unpreserved Claims
As a threshold matter, we summarily reject arguments one, two, three, five, and seven
as they are not preserved. Further, we caution White’s appellate attorney from presenting
nine points on appeal when more than half of them are unpreserved.
1. Arguments one and two
7 Appellant’s first two arguments contest the adequacy of the evidence that led to his
conviction for first-degree murder. He claims that the proof that he intentionally caused
Burchett’s death was insufficient because the State did not disprove his legitimate use of
lethal force against Burchett.
To preserve a challenge to the sufficiency of the evidence on appeal, the defendant
must make a specific motion for a directed verdict at the close of the State’s case and again
at the close of all the evidence. E.g., Dickey v. State, 2016 Ark. 66, at 3–4, 483 S.W.3d 287,
289; Ark. R. Crim. P. 33.1(a) & (c). A defendant’s failure to renew his directed-verdict
motion at the close of any rebuttal case that the State may present operates as a waiver of any
question relating to the sufficiency of the evidence to support the jury’s verdict. E.g., King v.
State, 338 Ark. 591, 595–96, 999 S.W.2d 183, 185–86 (1999).
Rule 33.1 is strictly construed; a motion for a directed verdict must be specific enough
to apprise the trial court of the basis for the motion. Dortch v. State, 2018 Ark. 135, at 6–8,
544 S.W.3d 518, 522–23. “We will not address the merits of an appellant’s insufficiency
argument where the directed-verdict motion is not specific.” Gillard v. State, 372 Ark. 98,
101, 270 S.W.3d 836, 839 (2008). A defendant is bound by the scope and nature of his
directed-verdict motion at trial and cannot change the grounds on appeal. Kinsey v. State,
2016 Ark. 393, at 9, 503 S.W.3d 772, 778.
During the trial, White moved for a directed verdict after the State had presented its
case, arguing that the State had not proved beyond a reasonable doubt that he had intended
to kill Burchett and had not provided evidence to rule out the existence of justification. He 8 repeated this argument after the defense rested its case, claiming that Johnston did not see
the beginning of the altercation and could not have identified the initial aggressor. However,
he did not renew his directed-verdict motion after the State presented a rebuttal witness,
Officer Scott Moore. As a result, by not renewing his motion at the end of all the evidence,
he waived his right to challenge the sufficiency of the evidence supporting his conviction, so
we will not consider these arguments on appeal.
2. Arguments three and five
In his third claim, White argues that the trial court abused its discretion by allowing
a part of Johnston’s recorded police interview to be presented in which he referred to an
incident where White purportedly “beat the hell out of [Brandy May].” He asserts that the
trial court erred by not excluding the statement under Ark. R. Evid. 404(b) since it was
introduced to depict him as a person of ill repute. Alternatively, he contends that the
statement should have been excluded as excessively prejudicial under Ark. R. Evid. 403.
White’s fifth claim is that the trial court improperly restricted White from rebutting
the State’s assertion that his flight was evidence of consciousness of guilt rather than fear of
retaliation by Burchett’s associates.
Appellant did not raise either argument in the trial court. Therefore, his arguments
are not preserved, and we are precluded from addressing them here. See Hamilton v. State,
348 Ark. 532, 537–38, 74 S.W.3d 615, 618 (2002) (“The contemporaneous-objection rule
requires a party’s objection at the trial level to preserve an argument for appeal.”).
3. Argument seven
9 White’s seventh argument is that the trial court erred by allowing the prosecutor to
misstate the law regarding parole eligibility to the jury. The prosecutor cautioned the jury
against sentencing White to a term of years because “when he reaches 70 percent of that
amount, he is eligible for parole and released back into society.” The prosecutor effectively
implied that White would only serve the minimum sentence allowed by law rather than
possibly being parole eligible at that time.
White admits that this issue is not preserved, but requests that we apply the third
exception to the contemporaneous-objection rule set out in Wicks v. State, 270 Ark. 781,
782–87, 606 S.W.2d 366, 367–70 (1980). This exception deals with the trial court’s duty to
intervene, without an objection, and correct a serious error either by an admonition to the
jury or by ordering a mistrial. Id. The third exception is limited to only those errors affecting
the very structure of the criminal trial, such as the fundamental right to a trial by jury, the
presumption of innocence, and the State’s burden of proof.
Here, there is no basis for us to apply the third Wicks exception to the prosecutor’s
closing argument since this does not affect the very structure of the criminal trial, such as
the fundamental right to a trial by jury, the presumption of innocence, and the State’s
burden of proof. See Fields v. State, 2019 Ark. App. 162, at 5–8, 574 S.W.3d 201, 207–08
(holding no basis to apply third Wicks exception or to reverse sentences on the basis of
prosecutor’s comments regarding parole eligibility during sentencing-phase closing
argument). Therefore, since this issue is not preserved and no exceptions apply, we will not
consider this argument. 10 B. Preserved Claims
1. Argument four
Appellant’s fourth point on appeal is that the trial court abused its discretion by
rejecting White’s proffered justification instructions and instead instructing the jury on a
duty to retreat that no longer existed.
This court will not reverse a trial court’s refusal to submit an instruction to the jury
absent an abuse of discretion. Grillot v. State, 353 Ark. 294, 318, 107 S.W.3d 136, 150
(2003). “Abuse of discretion is a high threshold that does not simply require error in the
trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or
without due consideration.” Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004).
When the trial court determines that a defendant “has offered sufficient evidence to raise a
question of fact concerning a defense, the instructions must fully and fairly declare the law
applicable to that defense[.]” Yocum v. State, 325 Ark. 180, 190, 925 S.W.2d 385, 390 (1996).
White argues that he had the right to receive the non-model justification instructions
that he proposed, reflecting the law as amended by Act 250 of 2021, arguing that the model
instruction no longer accurately reflected the legal duty to retreat at the time of his trial in
January 2022. See Ark. Code Ann. § 5-2-607(b) (Supp. 2021) (providing a person is not
required to retreat before using deadly physical force if six enumerated conditions are
satisfied).
The jury was given an appropriate instruction by the trial court regarding the law that
applied to the self-defense justification, which was based on the law in effect when the offense 11 was committed. The 2021 amendment is not retroactively applicable because the legislature
did not expressly provide that it should be applied retroactively. Therefore, the trial court
did not abuse its discretion, and we affirm the jury instruction given in court.
2. Argument six
In his sixth argument on appeal, White asserts that the trial court erred by preventing
him from testifying about Burchett’s past violent acts. The trial court allowed him to testify
about the acts he is now referring to in his argument. During his testimony, White was asked
if Burchett ever mentioned killing him. He responded by reiterating his previous testimony
about Burchett threatening to “shoot up” his in-laws’ house where his daughter resided. The
State objected to his response because it was irrelevant to the question asked, and the trial
court sustained the objection. Nonetheless, the court made it clear that it would allow the
testimony if defense counsel wanted to ask about things Burchett had done to other
individuals. Thus, the trial court did not prevent him from testifying about Burchett’s past
violent acts, and we affirm the trial court’s decision.
3. Argument eight
White’s next argument revolves around his entitlement to resentencing based on the
standard sentencing range for a Class Y felony. He asserts that he lacked notice of his
habitual-offender status and contends that the felony information filed on August 11, 2020,
which charged him with first-degree murder, did not include an allegation of habitual-
offender status. Furthermore, he claims that the State did not amend the information to
include such an allegation.
12 The requirement for including an habitual offender allegation in the felony
information serves the purpose of providing the defendant with notice of the essential
elements that the State will rely on when determining the punishment. As stated in Glaze v.
State, 2011 Ark. 464, at 4, 385 S.W.3d 203, 207, the purpose is to ensure the defendant is
informed. In this case, White had actual notice of both his prior convictions and the fact
that they would be introduced during the penalty phase of the trial to support an enhanced
sentence under the habitual-offender statute. This notice was sufficient to alert White that
he could be sentenced as an habitual offender and that his prior convictions would be
considered in assessing an enhanced sentence. Glaze, 2011 Ark. 464, at 4–5, 385 S.W.3d at
207.
On August 12, 2021, over five months before the trial held on January 24-27, 2022,
the State filed a formal notice to include an allegation that White had been previously
convicted of four or more felonies. The notice explicitly conveyed the State’s intention to
try him as an habitual offender and put him on notice that, if convicted, he would be subject
to an extended term of imprisonment for the offense charged as outlined in Ark. Code Ann.
§ 5-4-501(b). Furthermore, at an October 1, 2021, pretrial hearing, the trial court addressed
and accepted the State’s formal notice regarding the enhancement. However, White did not
raise any objections, arguments, or comments concerning the timing, form, or habitual
offender allegation itself.
Therefore, since the State’s August 12 notice referencing White’s original charge––
alleging that he had four or more prior felony convictions, and expressly stating that he was
13 subject to being tried and sentenced as an habitual offender under the applicable range set
out in Ark. Code Ann. § 5-4-501(b)––was sufficient to notify him of his habitual-offender
status and of the State’s intention to pursue enhanced sentencing, we affirm.
4. Argument nine
White’s final argument challenges the trial court’s decision to admit two photographs,
State’s exhibits nos. 34 and 35, depicting law enforcement officers removing the victim’s
body from the refrigerator. White contends that these photographs were irrelevant and did
not shed light on any relevant aspect of the case. Furthermore, he argues that any probative
value they may have had was outweighed by the risk of unfair prejudice.
The admission of photographs during a trial is a matter within the discretion of the
trial court, and this court will reverse such a decision only if there was an abuse of that
discretion. Collins v. State, 2020 Ark. 371, at 7, 610 S.W.3d 653, 657. It is generally
permissible to admit photographs that are helpful in explaining testimony. Id.
Photographs have been deemed admissible to demonstrate the nature and location
of wounds to counter a defendant’s claim of self-defense or establish intent. Pearcy v. State,
2010 Ark. 454, at 9–10, 375 S.W.3d 622, 627. Additionally, photographs may be admitted
depicting the condition of the victim’s body, the type or location of injuries, or the position
in which the body was discovered. Green v. State, 2015 Ark. 359, at 3, 471 S.W.3d 200, 202.
A trial court’s exercise of discretion can also be demonstrated by its careful examination of
each photograph before admitting them into evidence. Pearcy, 2010 Ark. 454, at 9–10, 375
S.W.3d at 627. 14 Here, the trial court reviewed the photographs in a pretrial hearing, applying relevant
rules to assess their relevance and weighing their probative value against any potential
prejudicial effect. The court considered several factors, including whether the photographs
shed light on any issues, corroborated testimony, aided witness testimony, or depicted the
condition of the victim’s body and the nature of the injuries. The court reexamined the
photographs before admitting them at trial. State’s exhibits nos. 34 and 35, which were
admitted through Officer Seth Race’s testimony, portrayed the location, condition, and
position of the victim’s body when it was discovered.
These photographs facilitated Officer Race’s testimony regarding the details of the
discovery and helped the jury understand the testimony better. They also corroborated
White’s testimony regarding the victim's body placement in the refrigerator. Additionally, as
noted by the trial court, the photographs depicted the nature, extent, and location of the
victim’s wounds and provided different angles and views compared to other admitted
photographs of the crime scene.
Therefore, the trial court did not abuse its discretion in admitting the challenged
photographs because the photographs were relevant, aided in understanding the testimony,
and provided corroboration. As a result, the trial court’s decision to admit the photographs
is affirmed.
III. Conclusion
We affirm issues four, six, eight, and nine on their merit, and we do not reach issues
one, two, three, five, and seven because they are unpreserved.
15 IV. Rule 4-3(a) Review
Because White received a sentence of life imprisonment, the record has been reviewed
for all errors prejudicial to him, as required by Arkansas Supreme Court Rule 4-3(a). No
reversible error was found.
BAKER, J., concurs.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Tim Griffin, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.