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King v. State

Supreme Court of Arkansas

April 18, 2019

QUENTON EDWARD KING APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-15-2739] HONORABLE HERBERT T. WRIGHT JR., JUDGE.

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          RHONDA K. WOOD, Associate Justice.

         Quenton King appeals his capital-murder conviction. He raises three evidentiary issues on appeal. First, King contends that the circuit court erred when it denied his motion to suppress a taped recording between him and a police detective. Second, he argues that the circuit court erroneously denied his motion to suppress evidence seized from his home because the affidavit attached to the warrant did not contain sufficient grounds for the search and seizure of the evidence. Finally, he claims that the circuit court should not have permitted witnesses to testify that the victim had planned to spend the weekend with him. We affirm.

         I. Background

         A jury convicted King of the capital murder of his pregnant girlfriend, Megan Price, and sentenced him to life imprisonment without parole. Price's body was discovered in her home on Sunday, June 28, 2015. Several days before Price was killed she had announced in a Facebook post that she and King had been together for fourteen years and that he was the father of her child. King was married to another woman.

         After Price's body was discovered, Detective Clint O'Kelley tried to contact King. King, who was attending a memorial service with David Kincade, returned the detective's call on Kincade's cell phone. During the call, King admitted that he had a relationship with Price and that she could have been pregnant with his child. Unbeknownst to King or Detective O'Kelley, Kincade had installed a program on his phone that automatically recorded the telephone conversation.

         After speaking to Detective O'Kelley, King confessed to Kincade that he had murdered Price. King told Kincade that he had made plans to spend the weekend with Price. Before the night of the murder he had disconnected some of his home-surveillance cameras. On the night of the murder, he left his house through the backdoor and walked across a field to the main road where an unidentified person picked him up and took him to Price's home. King used a key Price had left out for him to enter her house. Once inside, King shot and killed Price. Kincade later contacted police and reported what King had told him.

         After taking Kincade's statement, Detective O'Kelley prepared an affidavit for a search warrant averring that there was reasonable cause to believe that evidence connecting King to the murder, including a surveillance system, was located in King's home. In the affidavit, Detective O'Kelley identified Kincade as "Witness 1" because Kincade feared retaliation by King. The surveillance DVR retrieved from King's home revealed that the channel connected to the camera positioned in the back of King's home had stopped recording on June 26, 2015, and began recording again on the evening of June 29, 2015.

         Defense counsel filed a preliminary motion asking the circuit court to exclude the telephone recording between King and Detective O'Kelley and to suppress the evidence seized pursuant to the search warrant. After a hearing, the circuit court concluded that the evidence was admissible. Additionally, the State moved in limine to allow witness testimony pursuant to Arkansas Rule of Evidence 803(3) that Price had planned to spend the weekend she was murdered with King; the court granted the motion. King appeals these evidentiary rulings.

         II. Telephone Recording between Detective O'Kelley and King

         King first argues that the taped audio recording of the telephone conversation between him and Detective O'Kelley should have been excluded pursuant to Arkansas Code Annotated section 5-60-120. In the conversation, King admitted that he had a relationship with Price and that the child she was carrying may have been his.

         Section 5-60-120 prohibits a person from intercepting and recording a telephone conversation between two parties unless that person is a party to the communication, or one of the parties has given prior consent to such interception and recording. We considered a similar situation in Elliott v. State, 335 Ark. 387, 389-90, 984 S.W.2d 362, 363 (1998). In that case the defendant's wife recorded telephone conversations between the defendant and his minor stepdaughter, which revealed that the defendant had sex with the minor. Like King, Elliott argued that section 5-60-120 precluded the tape's introduction. This court rejected that argument because while the statute makes the recording of the conversations unlawful, it "does not proscribe the admissibility of an unlawful recording." Id. at 389. We reasoned that "the search and seizure clauses are restraints upon the government and its agents, not upon private individuals; the corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals." Id. We find this authority persuasive and affirm the circuit court's denial of King's motion in limine to exclude the audio recording.

         King also argues on appeal that the recording should have been precluded pursuant to 18 U.S.C. § 2515, which is a statutory exclusionary rule that generally prohibits the introduction into evidence of illegally intercepted communications or evidence derived from illegally intercepted communications. However, King failed to make this argument to the circuit court, so it is not preserved for our appellate review. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997).

         III. Motion to Suppress Evidence Seized from King's Home

         King next argues that the circuit court erred in failing to suppress evidence seized from King's home pursuant to a search warrant. These items include a surveillance DVR containing video of activities at his house and photographs taken by police inside and outside his home. This evidence was admitted at trial.[1] King claims the warrant did not present sufficient grounds for the search and seizure of the evidence. In particular, he claims that the affidavit for the warrant prepared by Detective O'Kelley was insufficient because it did not provide any basis for the veracity of "Witness 1."

         Arkansas Rule of Criminal Procedure 13.1(b) states that "if an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained." However, failure to establish the veracity and basis of knowledge of persons providing information is not a fatal defect if the affidavit viewed as a whole "provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place." Ark. R. Crim. P. 13.1(b); see also Wagner v. State, 2010 Ark. 389, 368 S.W.3d 914. The task of the judge issuing a warrant "is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Brenk v. State, 311 Ark. 579, 588, 847 S.W.2d 1, 6 (1993) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). In reviewing a trial court's denial of a motion to suppress, we make an independent examination of the issue based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). We reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Id.

         In this case, Detective O'Kelley's affidavit states that "Witness 1," who was later identified as David Kincade, had contacted investigators and informed them that King had confessed to him that he killed Price. The affidavit identifies King as the individual already charged with the capital murder of Price. According to "Witness 1," King stated he killed Price because if his wife found out that Price was pregnant with his child, his wife would divorce him, and he would lose everything. "Witness 1" also detailed how King told him that he had unplugged the surveillance cameras at his house the week before the murder and that on the ...


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