APPEAL
FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-16-35]
HONORABLE DAVID W. TALLEY, JR., JUDGE.
Davis
Firm, PLLC, Michael L. Yarbrough, for appellant.
Leslie
Rutledge, Att'y Gen., Adam Jackson, Ass't Att'y
Gen., for appellee.
LARRYD. VAUGHT, JUDGE.
Kwasi
Andrade McKinney appeals the order entered by the Columbia
County Circuit Court denying his motion to recuse. He argues
that (1) there is a conflict in the law of judicial
disqualification that requires clarification; (2) this court
should change the standard of review in
judicial-disqualification cases; (3) the circuit court was
required to hold a hearing on his motion to recuse; and (4)
the circuit court was required to recuse pursuant to Arkansas
Code of Judicial Conduct Rule 2.11. We affirm.
This is
the third time McKinney's case has been before this
court. In his first appeal, McKinney challenged a sentencing
order that convicted him of delivery of methamphetamine,
possession of methamphetamine, maintaining a drug premises,
simultaneous possession of drugs and a firearm, possession of
methamphetamine with intent to deliver, and possession of a
firearm by certain persons and sentenced him to a total of
154 years' imprisonment. McKinney argued in his first
appeal that (1) there was insufficient evidence to support
the convictions for simultaneous possession of drugs and a
firearm and for possession of a firearm; (2) the circuit
court abused its discretion by ordering the sentences to be
served consecutively; and (3) the circuit court abused its
discretion by denying his request for a pretrial suppression
hearing.
On
January 10, 2018, this court affirmed McKinney's
convictions for delivery of methamphetamine and possession of
methamphetamine. McKinney v. State, 2018 Ark.App.
10, at 9, 538 S.W.3d 216, 222. We reversed and remanded the
remaining convictions holding that the circuit court abused
its discretion in denying McKinney's motions to suppress
his statement and the search of his home based on
untimeliness and that the court abused its discretion in
denying his request for a hearing on his motion to suppress
his statement. Id. at 9-10, 538 S.W.3d at 222. We
directed the circuit court on remand to rule on the merits of
McKinney's motion to suppress search and to hold a
hearing on the record for the limited purpose of considering
the arguments and allegations in his motion to suppress
statement. Id. at 10, 538 S.W.3d at 223.
On
remand, the circuit held a suppression hearing. At the onset
of the hearing, McKinney, who was represented by counsel,
made a pro se oral motion that the trial judge recuse based
on a "conflict of interest." The circuit court
asked McKinney if he had filed the motion to recuse, and
McKinney answered that he had not. The court advised McKinney
that before it could rule on the motion, McKinney had to file
it and give the State the opportunity to respond. McKinney
requested a continuance. The circuit court denied the request
for a continuance, stating that it was moving forward with
the suppression hearing as directed by this court. The court
invited McKinney to file any motion he liked at the end of
the suppression hearing.
After
the suppression hearing, McKinney filed his motion to recuse.
Citing Arkansas Code of Judicial Conduct 2.11, McKinney
alleged that the trial judge should recuse because he had
represented McKinney in criminal matters from 2003-2010 and,
as a result, had a "conflict of interest."
On
April 25, 2018, the circuit court entered three orders: an
order denying McKinney's motion to suppress statement, an
order denying his motion to suppress search, and an order
denying his motion to recuse. The order denying the motion to
recuse stated that the trial judge had represented McKinney
in various cases between 2003 and 2010 but that none of those
cases were in any way related to his current criminal
charges. The order further stated that the past
representation had not caused any bias or impartiality of the
court for or against McKinney. The court noted that it had
presided over a jury trial concerning McKinney and no request
for recusal was raised. Finally, the order stated that
McKinney's motion mischaracterized the contents of Rule
2.11 of the Arkansas Code of Judicial Conduct.
McKinney
filed a timely notice of appeal from the circuit court's
three orders entered on April 25, 2018. In the second appeal,
due to addendum deficiencies, we held that counsel failed to
comply with Arkansas Supreme Court Rule 4-2(8)(A)(i), and we
ordered a supplemental addendum. McKinney v. State,
2019 Ark.App. 138.
McKinney's
appeal has returned to us for the third time with the
addendum deficiencies corrected. McKinney's first two
arguments on appeal are (1) there is a conflict in the law of
judicial disqualification that requires clarification and (2)
this court should change the standard of review in
judicial-disqualification cases. We cannot reach the merits
of these two arguments because McKinney is asking our court
to overrule Arkansas Supreme Court precedent, which we cannot
do. In re Estate of Edens, 2018 Ark.App. 226, at 22,
548 S.W.3d 179, 192; Wallace v. State, 2017 Ark.App.
659, at 7, 537 S.W.3d 269, 273.
McKinney
next argues that the circuit court was required to hold a
hearing on his motion to recuse. There is no requirement that
a hearing be held every time a party files a recusal motion
and requests a hearing. Ferren v. USAA Ins. Co.,
2015 Ark.App. 477, at 3-4, 469 S.W.3d 805, 807 (citing
Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238
S.W.3d 902 (2006) (no hearing was required where the moving
party's motion was "devoid of any facts supporting
his assertion[s]" of bias and prejudice and "raised
no issue of fact or law to be raised in a hearing.")). A
hearing is necessary, however, when one is requested and
there is more than a conclusory allegation that a judge is
biased or otherwise subject to recusal. Ferren, 2015
Ark.App. 477, at 4, 469 S.W.3d at 807.
In the
case at bar, McKinney requested a hearing on his motion to
recuse. However, both his oral and written recusal motions
were devoid of any facts to support the claim that the trial
judge was biased or prejudiced against McKinney. The oral and
written motions asserted only conclusory allegations of bias,
e.g., the trial judge should recuse "on grounds of
conflict of interest." McKinney provided no examples of
the trial judge's comments or actions that demonstrated
bias or prejudice. McKinney also relied on Rule 2.11 of the
Arkansas Code of Judicial Conduct contending that "a
judge shall disqualify himself if [he] previously served as a
lawyer." However, McKinney's motion failed to recite
the entirety of Rule 2.11, which provides that a judge shall
disqualify himself or herself when the judge served as a
lawyer in the matter in controversy. Ark. Code Jud.
Conduct R. 2.11(A)(6)(a). There is no allegation or evidence
that the trial judge represented McKinney in the instant
case. As a result, McKinney's ...