Petition for Writ of Certiorari — Kwasi Andrade McKinney, Petitioner v. Arkansas

OFFICE OF THE CLERK

ARKANSAS SUPREME COURT

625 MARSHALL STREET

LITTLE ROCK, AR 72201

OCTOBER 17,2019

RE: SUPREME COURT CASE NO. CR-18-546

KWAS1 ANDRADE MCKINNEY V. STATE OF ARKANSAS

THE ARKANSAS SUPREME COURT ISSUED THE FOLLOWING ORDER TODAY IN THE

ABOVE STYLED CASE:

“APPELLANT’S PETITION FOR REVIEW IS DENIED. HART, J., WOULD GRANT.”

SINCERELY,

STACEY PECTOL, CLERK

CC: JASON R. DAVIS

ADAM JACKSON, ASSISTANT ATTORNEY GENERAL

COLUMBIA COUNTY CIRCUIT COURT

(CASE NO. 14CR-16-35)

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ARKANSAS COURT OF

APPEALS

division I

No. CR-17-264

i'Th

Opinion Boihweii January 10, 202 8' ■

KWVVSI ANDRADE MCKINNEY

APPELLANT

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fNO. 24CB.-16-3S]

HONORABLE DAVE W

- TALLEY, JR

STATE OF ARKANSAS

APPELLEE

LARRY B. VAUGHT, Judge

On November 20

5

confidential informants to

his residence io

r“lrJ 24, 2035', law-enfor

iWha“

cement officers worked ■with two

ton, appeUanriC

asi McKinney at

MBd “ 202 “•“"“V >'•> McNril, Arkansa,.

pursuant to a search

Thereafter on Januaty 28, 2016,

warrant, law-enforcement officers s

earched McKinney’s home and found

™hTOphMmtal, dmgparaplamapa. attd

a firearm. On November 29,

^016, a Columbia

County faiy found McKtm

ofiy guilty of delivery of

methamphetamine, possession of

metbamphetamin

e, maintaining a drug premises,

simultaneous possession of drugs and a

firearm. P°SSHSion of “«hamph£amiflc with

to deliver, and possession or a firearm

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ce*&io persons.5 He was sentenced to

serve twenty-right years’,2 gj

su' years’, eighteen years’,

J'W imprisonment, respectively, to be run

consecutively,

for a total of JS4

years. On appeal, McKin

nc>’ contends that (f) there

was insufficient evidence

t:° SUPPGU *e Action, for

icous possession of dm

gs arid a firearm and for

possession of ,

(2) fc di™.

court abused its di

scretion in ordering consecutive

sentences; md (3) fo,

abused t, discretion in denying bis

request for a pretrial

hearing. W« affirm in

part and reverse aQ(i remartd'in

part.

McKinn c7 argues that the evidence

was insufficient to

support liis convictions for

simultaneous

possession of drags and

a firearm and for

possession, of a firearm,’ M ore

specifically, h

e argues that the proof failed

to establish that lie

wnmnaiyci). possessei, d,Ke

items. He cites th

taHmoar of Officer JM,flan O,

"**“ °f ** ’tatemh judidai Dr„e

fas.ij Force who

stated that th

«e were two other men, Sharde

Mullins aad jaylon McKamie,

hi the h

ome at foe time of foe search. Chamber

3 also tes&'fied that these t

placed the drugs and ficeati

wo men could hare

n in the closet; but they^ n°tin^srigated5 and the fireaan and

drugs were not submitted

t0

cjime ^ for latent-nri

print testing. Based on

this evidence,

ivxty years; thirty years; and twelve

}

e welfare of a '

2Mc,I<inney wag

toefoampiietamine

delivery-of.

committing the cri

tea P***** ^tisoniXie™ for

proximity to certain facilities fa church's

years.

( c”urc^1) for a total of twenw-eight

sufficiency of foe

methsmpheamins. «***, . Zg “j* 0f

evidence

methamphetaimru!,

intent to deliver.

possession

0f

^ and possession of me*

amphetamine with

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McKxaacy argues, “k is not

/

^

■f-ealm of possibility mat

someone else planted {the

toj Mfa

M

and face, the consequences.”

In order to preserve for appe2. dl(, JKae ^

sufficiency of die evidence, 3 defendant

must first raise the issue to the circuit

court as provided in Arkansas Rule of Criminal

Procedure 33.1. Rule 33.1(a) provides that;

'm a j^y taal, a defendant must

challenge

sufficiency by a specific. motion for directed

verdict at the dose of the evidence offered by the

■prosecution and at the close of all the

evidence. Ark. R. Gtim. K 33.1 (a) {20! ?). A defendant's

failure to raise the i

issue at

times and in the.

^ ****** h7 &c rule will consfeute a

waiver of any question pertaining to the

sufficiency of the evidence to su

ppott the judgment.

■Ark- R. Com. p. 33.1(c).

fire™ ®d *„gs] thae Md lrf[

A motion for directed verdict is mad

1

equate if it states "that the. evidence is insufficient

[and] does not preserve for

appeal issues relating to

specific deficiency such as insufficient

pi-opfon the elements of the offense” Gilhrd

« ^ 372 Atlc 98, 101, 270 S.W.3d gag. B38

(2008) (citing Ark. R.

The motion must

Cnm. p. 33.1(c); J!«k& *

357 ^

274, 23.9 S..W,3d 494 (2006)).

specifically advise the circuit court as

270 S.W.3d at 838. TI

"

l"*^* *“s

ft« specific gto

that the absent prod be pinpointed is that it ,J0WS

Rtan'tmg die motion op if justice

-trussing proof. Id, 270 S.W„3d

insufficie

to how the evidence was deficient. Id

unds be stated and

^"““'fwheoptiooafcAcr

requires, allowing the State to

reopen its case to supply the

at 838-39. W,e ^ not ^kircss the merits

.rgumet where rV dwcttd.vmfc[

o* an appellant’s

not sP6d&. -K 270 S.W.3d st

839.

fa ** pre$“‘ “*• McKi”<><7 m* the

wng motions for directed verdict:

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*•«■£? SC i“S"s'" ^ k

e»iy stated that he did

did ««»W.w4,ttkcSatfiidBpffiKftiti

not possess the firearm. He

e constructive!

7 possessed the fixeaxna.

ney’s mod

o« was too genefaUo preserve the

COdftr ACSe Cim3ftlsla«c«, ^ hold dm McKim

c°nstructh*'e-.poSgessjoa

i

ai«u«a»t he h« raised

on aPPeai. Omit,

^ K J'4s*’ 2013 Ark, App. 597,

at 6-7, o85 S,W.3d 875, 878/9 Riding that the

appel/ant failed

to preserve ids sufficiency

argument where fa«

argued m his motions for

directed verdict that the

possession °f ^ aild cfef paaphemafi

State failed to prove.

a but argued on

aPPeai that the State failed to

establish constructive

Possession). Accordingly

we affirm on the

the ctude/ice

lssue of the suffidentry- of

suPpOttm^ifcKioney's

convictions for simul

“ieo„SpossessiMof ^

fiteaan and possession of

a -firearm b7 certain persons.

McKinney also

«*"« on appal

court- abused its di

consecutive sentences. After

Kcrefion in ordering

I

the l^/

return^ i

its griky verdicts and

^commendation, the State

sentencing

requested that foe circuit-c

ourt sentence McKixt

yCrtrS °f i^Pended imposition of sehte

ncy to twenty-four

ncc* (SiS) for die possession.

dehV:^-o^edwrophetatnine

oP-methamphetatuin

e and

convictions and to

ordei- that the

sentences for & e remaining

convictions (p0ssessj on of

a &earm, by certain

persons, toamtaining a drug

shauita neons

possession of drugs and a firearm, t

premises,

and die

proximity enhance

rj!t-c0: which

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totaled 130 year's, be run consecutively. McKinney’s counsel did not respond ox object.

Thereafter, the circuit court found that, it lacked authority to order SIS -where the defendant

had been determined to be 2 habitual offender, md It concluded, that it would follow the jury’s

sentencing recommendations. Hie court then stated that the jury had spent "quite a bit of time

deliberating on this. Obviously, they had different thoughts about different

sentences,” and

ordered that the sentences run consecutively for a total of 154 years. McKinney did not object,

la order to preserve an. argument for appeal there must be

an objection in the circuit

court that is sufficient to apprise that court of the particular error alleged. Bmm « State, 326

Ark. 56, 60, 9ol S.W.2d 80, 83 (1996). Further, we will not address ailments raised for the

first time on appeal.. Id, 931 S.W.2d at 83. Our

supreme court lias specifically stated that when

an Appellant did not object to his or her terms of imprisonm

ent being imposed consecutively,

me court would not address the argument on appeal. Af, 9ol S.W,2d at 83 (citing Bichards#/}

k State, 314 Aik. 512, 863 S.W.2d 572 (1993)).

In the instant case’ McKinney raised no objection to the State’s request that Ms

sentences ran consecutively or to die circuit court’s ruling that Ms

The alleged emir should have been called

sentences run consecutively.

to the attention of the circuit court by tirriely

objection or in,ary so fat fa comt could fa greet, fa opportanny to comet fa

error.

Therefore, we hold that McKinney’s sentencing argument is not preserved for appeal B

mm,

326 Ark., at 60, 931 S.W.2d at 83; Mixon p. State, 330 Ark

171,174,954 S.W.2d 214,216 (1997)

(holding that in order to preserve a challenge to tfcetkcuit court’s decision to

run sentences

consecutively, the appellant must make •an objection in circuit court). Accordingly, we af&m

the circuit court’s decision to run McKinney’s

sentences consecutively.

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Add. 51

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McKinney’s fine] atgumem on appeal is that the circuit conn abused to dwnsion i„

denying bis mfm foI , pretriai hear** On October 13, 20M, McKinney filed live prmmi

motions: a motion to

suppress statement, a motion to suppress search, a morion to compel

testing of certain evidence, a motion for reconsideration

or in die alternative to reduce bail,

•and a moaon m famine. On November 8, 2016, counsel for MdGnne

y requested a hearing on

motions, and the State objected the following day.

No hearing was held, and on November 14, 2016, the circuit court entered

denying the motions to suppress the statement, to

finding that they were untimely.-* Ibe court

an. order

suppress the search, and to compel testing,

found that McKinney had appeared on two

occasions (July 7, 2016, and August 18, 2016} and announced he

the jury trial started, counsel for McKinney moved

was ready for trial. Before

for reconsideration, stating that by

tte cwk xkmlin fading ftat McKinney bad tace mamneed ta, hc

was ready for trial

M.d tat ta motion testing the tettag of e,j(W cowld nM ^ p„fomed ^

trial.

The court denied the motion, for reconsideration.

On appeal, McKinney argues that, pursuant to Arkansas Rule of Criminal IWore

16.2(b), a motion to suppress evidence is timely if filed

bail, stating that it had thorougSy

The court Lk the

ten days before trial. A.rk, R. Cam. P

^ aJternative to reduce

^ °ctobeJ 20^ ^ hearing,

is not. in dispute on appeal.

enL

^position of these two motions

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iti.2(b) (2017). He contends that he filed hi

the circuit court abused its discretion hi de

s suppression motions5 well before that; therefore,

nying his motion based on ontimefiness.

I he. State first argues that, based on Rule 16,1

Procedure, Rule 16.2 does not apply because this

omnibus-hearing procedure was utilised. Ark

tliis case does not demonstrate that

or the Arkansas Rules of Criminal

was a criminal prosecution in which the

It Com. P. 16.1 (2016). However, &erecordin

an omnibus hearing was set. and/or held. Therefore, Rule

16.2 does apply. And based on Rule 16.2, .McKinney's motions to

suppress—filed forty-seven

days before trial—were timely filed. Therefore,

discretion in finding that the motions to

suppress were untimely,

McKimey forth^ contends that he

motions. While Rule 16-2 do es not mandate a

j

we hold that the circuit com abused its

was entitled to a hearing on his suppression

pretrial hearing on suppression motions, at the

very least, our statutory and case jaw mandates a hearing on the motion

statement Cam * Sta*> 76 Ark APP- 250, 254, 65 S.W.3d 889.

to suppress the

891 (2001). "A hearing is

mandatory on a motion to suppress, and the

supreme court has said that a defendant is not

tequired to question foe admissibility of his pretrial

statements more than once.” Id. at 254,.65

S,W.3d at 891. likewise, in TRmkin v. Stat*, out supreme

court held that the circuit court erred

when it admitted foe defendant’s

custodial statements without conducting a hearing

on the

drfendanrt suppression mod™, as it had been related to da 325 Aik

• 379, 399-400, 948

»,d 352, 408 (W, ae ^ ,,etMeEtd ^ ^

Aon()B[cd ^

107(h)(1) (1987), which provided in

!

mandatory terms that a circuit court must hold a hearing

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sJ

a°y

related to fori

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on a motion to

suppress a statement See also Grsmv,

206(1998) (hoiding that, baSed

3 Ptettial

on Arkansas Code Ann

is required when a

335 Ark. 1,

29-30,977 S.W.2d 2 92,

otated section 5-2-309(c) (Rep]. 1997),

defendant contests a

Based on the above, McKi

mental evaluation),

nneywas entitled to a hearing on his motio

n to suppress his

urt abused its discretion in d

^ng his request We do

this holding to McKinney motion

not extend

to suppress the search, as there is no

statutory authority

mandating a pretrial hearin

g on such a motion.

statement, and the circuit co

As a final argument; the State

tends that if the circuit court erred in denvi

typing the

uppress McKinney’s stateme

come J

%

harmless beyond a reasonable doubt

^he State contends that McKinney, in ^

bt

statement, revealed informal

on about his

methamphetamine trade, but h

e did not confess to

any facts surrounding the cJiarges fae faced

at trial For instance, he did

not confess to the November 20

or 24,2015 drug transactions or

to possessing any of the evid

ence obtained in the search of his h

°me on January 28,2016. The

State utgues that the information in the statement

Was cumulative of the testim

Witnesses MttW;thus,d,EKrotTOsh2nnlKs.

°ny of other

motion to s

I

Illegally obtained

harmless-

evidence that is

erroneously admitted is subject to the

etrof analysis. Schaiski ‘ ^ 322Ark 63>

907 S.W.2d 693,

697 (1995) (citing

Fafgi t>. Connecticut, 375 U.S.

harmless, this

85 (1963)). Before a federal

court must declare it harmless

70, 907 S.W.2d at 697 (dtati

constituttonal

beyond a reas

constitutional etror can be held

enable doubt Scbabkz, 322 Ark. at

■j

ons omitted).

lathe case at bar, there was overwhelm!

mag evidence to

suPpott the jury’s findings that

hfcKin ney sold drugs to the

confidential informants on

November 10

and 24, 2015. The

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Add. 54

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informants and Officet Chambers, who participated

McKinney sold them drugs, md there

admission of McKinney s statement

«i the, dmg transactions, testified that

wcfc videos of the

transaction's. 7 hate/bre, the

was hatmless error beyond a reasonable doubt as to die

convictions for delivery of methaniph

*“*“ “d P“s“sion of rnnbamphetanatae, ,,„<j «

affirm tnose convictions.

However, we cannot reach the

same conclusion regarding the remaining convictions

for maintaining a drug ^ aimulaneou

® possession of drugs and a firearm,

possession

»f ■Mtharophrami* *4 i,Itcnt ddka. „

”d P°ssessi0° of a fiteatto by certain persons.

While McKmaefs StattmeQt did «otmdude admissions

on these, charges, his statement did

detail his drug business, and the i

July could have found shat

possessed the firearm and drugs

at bis house f part of his drug business. Therefore,

W£ Cannot C0Dciude.that the admission of

!Z“,l ■*“,0 tis

“etmunphetamine with inteat to deliver,

possession of a firearm

■“* * ** ~ ~ *

simultaaeo os possession of drugs and a foea,TO; md

oy certain persons—was- harmless b

eyoad a reasonable doubt.

In conclusion, we affirm McKinney's convictions for deli

1 ety 01 methaniphctanaiiie

and Possession of methamphetamme. Plow:

ever, we hold that dJ£ circuit court abused its

accretion in denying McKinney’s

motions to suppress fais statement and the search b

used on

undmdiness. Therefore,

we reverse and remand the circuit court’s

order denying McKinneys

suppression motions. We also hold that th

e circuit court abused its discretion in

denying

McKinney’s request for a

hearing on his motion to

suppress his statement and that thi s was

not harmless error.

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