Kelley v. State

2009 Ark. 389, 327 S.W.3d 373, 2009 Ark. LEXIS 398
Supreme Court of Arkansas·Decided June 25, 2009·No. CR 08-1502·Published·Cited by 36 cases

Opinions

ANNABELLE CLINTON IMBER, Justice.

Appellant Eric Wayne Kelley was convicted by a Pulaski County jury of one count of rape of a child less than fourteen years of age and was sentenced to a term of forty-seven years’ imprisonment. He now appeals, arguing that the circuit court abused its discretion in admitting certain evidence over his objections in accordance with Arkansas Rule of Evidence 404(b) (2009). Specifically, Kelley challenges the admission of certified documentary proof of his two prior convictions for indecency with a child younger than seventeen and the testimony of a prosecution witness whom Kelley had allegedly raped when the witness was a minor. Because the instant appeal follows an appeal that was decided in this court, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(7) (2009). We affirm Kelley’s conviction and sentence.

A recitation of the facts of this case is set forth in Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007) (“Kelley I”). As indicated therein, the Warrants Division of the Sherwood Police Department received information regarding Kelley from the United States Marshals Service on November 7, 2005. Specifically, the Department learned that Kelley was wanted in Dallas County, Texas, on warrants involving sexual offenses committed against children. Kelley was believed to be living in Sherwood and having sexual relations with an eleven-to twelve-year-old boy of Middle Eastern descent. An investigation revealed that an individual by the name of Melvin Eugene Kelley resided at 101C Audubon Cove in Sherwood. An Arkansas identification photograph of Melvin Eugene Kelley matched a photograph of Eric Wayne Kelley provided by the Marshals Service.

On November 10, 2005, Officer Kevin Webb of the Sherwood Police Department was patrolling in the area of Kelley’s residence and observed a black Nissan Maxi-ma, registered to Melvin Eugene Kelley, leaving the residence. Webb conducted a traffic stop. When Kelley, the driver, could not produce a driver’s license, Webb asked for his name and date of birth. Kelley responded that his name was Melvin Kelley and provided a false date of birth. When Webb inquired about the juvenile in the front passenger seat, who matched the description of the boy with whom Kelley was suspected of having sexual relations, Kelley stated that it was his twelve-year-old nephew. After the arrival of other officers on the scene, Kelley was shown the photograph from the Marshals Service and nodded to indicate that it was him. The passenger, twelve-year-old M.M., told Officer William Michaels of the Sherwood Police Department that Kelley was his “friend.” Kelley was then arrested.

M.M. was taken to the Sherwood Police Department, where his mother was to pick him up. With his mother’s permission, he was interviewed by Sergeant Jeff Hagar. M.M. initially denied that Kelley had ever hurt him but eventually disclosed that Kelley had performed oral sex on him approximately ten to twenty times over the course of the last year. M.M. further stated that Kelley had taken nude photographs of him, which he had seen on Kelley’s digital camera and which he believed to have been downloaded onto Kelley’s computer. M.M. also disclosed that Kelley had shown him pornographic videos. Based on the information provided by M.M., the officers obtained a nighttime search warrant for Kelley’s apartment and executed it at approximately 12:52 a.m. on November 11, 2005. Several pieces of electronic equipment were seized, including various compact discs and digital video discs.

The State filed a felony information charging Kelley with the rape of M.M. and later amended the information to include the charge of engaging children in sexually explicit conduct for use in visual or print medium. Kelley I, 371 Ark. at 602, 269 S.W.3d at 328. The State nolle prossed the latter charge prior to trial, and Kelley was convicted on the rape charge. Id. This court, however, reversed his conviction and remanded for a new trial, holding that the circuit court erred in denying Kelley’s motion to suppress the evidence seized from his home during the execution of the nighttime search warrant. Id. at 601, 269 S.W.3d at 327. More specifically, we held that the affidavit and warrant lacked any factual basis to support a nighttime search, as they contained only the conclusory statement that the objects to be seized were in danger of imminent removal, without providing any facts or explanation in support of that statement. Id. at 608, 269 S.W.3d at 333. Moreover, the good-faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not apply to save the warrant, because the affidavit lacked all indicia of reasonable cause to justify a nighttime seárch, and the officers therefore should have known that the affidavit was in violation of our rules. Kelley I, 371 Ark. at 608, 269 S.W.3d at 333. We further held that, in view of the imposition of a life sentence, the error could not be deemed harmless. Id. The mandate issued on January 17, 2008.

On retrial, Kelley was again convicted of rape and was sentenced, as a habitual offender with two prior felony convictions, to forty-seven years’ imprisonment. M.M. testified at trial that he met Kelley, whom he knew as “Gene,” in August 2004 at an Office Depot store, where Kelley sold a printer to M.M. and his mother. Kelley provided his telephone number and told M.M. and his mother to call if they encountered any problems with the printer. When M.M. and his mother had trouble installing the printer, Kelley came to the business owned by M.M.’s parents and helped to set it up. M.M. then saw Kelley again “every once in a while” when he went into Office Depot. He later needed a Sherwood address in order to attend school in a particular district and obtained Kelley’s permission to use his address. M.M. was picked up and dropped off by the school bus at Kelley’s apartment, where he was allowed to wait inside. Kelley and M.M. became friends and would often go out together to watch movies or go bowling. Kelley also bought gifts for M.M., including a cellular telephone and a video-game system. M.M. testified that at some point Kelley began engaging in behavior that made M.M. uncomfortable, which started with Kelley rubbing his thighs. The behavior progressed to Kelley masturbating M.M. and performing oral sex on him. M.M. testified that this happened ten to fifteen times. He further testified that Kelley showed him pornographic videos.

M.M. testified that, following Kelley’s arrest, Kelley placed several calls to him on the cellular telephone that Kelley had given him. These calls were made while Kelley was being detained in the Sherwood jail and were recorded. The recordings were admitted into evidence during the State’s case-in-chief and were played for the jury. On the recordings, Kelley is heard asking M.M. to bring him a “statement” that he had previously instructed M.M. to write, stating that Kelley had not hurt him. The jury also heard recordings of Kelley’s phone calls to his own parents, on which Kelley is heard asking his parents to convince M.M.’s parents to take M.M. out of town on the date of trial so that he would be unavailable to testify.

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Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373, 2009 Ark. LEXIS 398 (Ark. 2009).

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