McKeever v. State

240 S.W.3d 583, 367 Ark. 374
CourtSupreme Court of Arkansas
DecidedOctober 5, 2006
DocketCR 06-464
StatusPublished
Cited by8 cases

This text of 240 S.W.3d 583 (McKeever v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKeever v. State, 240 S.W.3d 583, 367 Ark. 374 (Ark. 2006).

Opinions

Jim Hannah, Chief Justice.

A Pulaski County jury convicted appellant Mark McKeever of three counts of committing a terroristic act. He was sentenced to ten years’ imprisonment for the first terroristic act, ten years’ imprisonment for the second, and five years’ imprisonment for the third. Additionally, McKeever was sentenced to multiple firearm enhancements pursuant to Ark. Code Ann. § 16-90-120 (1987). For reversal, McKeever argues that the circuit court erred in excluding relevant testimony from his mother regarding threats to his life. He also argues that the circuit court erred in sentencing him to multiple firearm enhancements. We find no reversible error and, accordingly, we affirm.

The testimony at trial revealed the following facts. On the night of March 12, 2005, Larry Anderson, Ettana Weatherspoon, and Adrian Thompson were out driving. As they drove by the intersection of 19th and Oak in Little Rock, they spotted an acquaintance of Anderson’s named Xavier. They stopped in the middle of the street to speak to Xavier, at which point, according to Anderson’s testimony, McKeever approached the car and shot at them. Anderson was not struck, but his companions were. They managed to drive down the road a short distance, at which point Anderson ran to his grandmother’s house for help. Anderson testified that nobody in the vehicle had a gun, and that nobody shot except for McKeever.

McKeever was the sole witness for the defense. He told the jury that in the weeks leading up to the shooting, he had been involved in an argument with Thompson, and that he feared for his life and for the safety of his family. McKeever testified that on the evening of the shooting, he was standing in the street in front of his mother’s house when he saw Thompson, Anderson, and Weatherspoon drive up. According to McKeever, Thompson had a gun in his lap. McKeever stated that he saw Thompson fumbling with the gun. McKeever testified that he was “in shock” and fired three shots into the car.

McKeever first stood trial in this matter on September 13-14, 2005. That trial resulted in a mistrial due to a hung jury. During his first trial, McKeever’s mother, Tina Curry, testified about several separate threats to her son’s life that she had received on her cell phone. First, she testified that Larry Anderson and Adrian Thompson, two of the eventual shooting victims, called her and told her that her son was not safe in the neighborhood, and that they were going to kill him. Second, she testified that a computer-generated voice said, “I’m going to get your son.”

At the retrial, the State moved in limine to exclude Curry’s testimony regarding the computer-generated voice. The objection was as follows:

Deputy Prosecuting Attorney: As to Ms. Curry, she testified that she received threats on her phone. One of those threats was a computer-generated voice. We would object to her testifying to that. I didn’t object last time. We were in the midst of trial and just simply for strategic reasons didn’t want to look like we were trying to hide anything, but that’s blatant hearsay to talk about a threat, there was a message left on her phone that was a computer-generated voice. She has no idea who left that message, and I am going to ask that she specifically not be allowed to testify to the threat. Only if she recognized the voice as a person she knew should she be able to testify to a threat.
Defense Counsel: I think she should be able to testify to a threat she received on her own voice — on her own voice mail. She can’t say who. I think it’s important for her to be able to tell the jury she played this threat that she received to the police officers.
Deputy Prosecuting Attorney: But it’s irrelevant if she can’t say who it’s from. It could have been Bill Gates, T.P., anybody, anybody that might have a beef with her son or a beef with her. That’s irrelevant. It’s prejudicial. She can’t say who that threat came from; therefore, it has absolutely no relevance to this. It’s their theory that self-defense — and, furthermore, if Mr. McKeever was unaware of those threats, it would be less relevant or not relevant at all, I should say. So I am objecting specifically to the computer-generated voice threat that she claims was on her phone and any threats if she cannot specifically identify the voice.
The Court: Okay. I will grant the motion.
Defense Counsel: Note my objection, Your Honor.
The Court: I’ll note your objection. Anything further?

The defense did not call Curry to testify during its case-in-chief, but renewed its objection to the trial court’s ruling, as follows:

Defense Counsel: Sorry, Your Honor, I forgot to — I must renew my motion based on the fact that Tina Curry would testify to if the Court allowed. The Court had said she could not testify as to the threats. I would renew my motion based on the same grounds that she be allowed to testify to that since the messages were on her voice mail.

McKeever argues that the circuit court erred in excluding Curry’s testimony because the testimony about threats to his life was relevant to his claim of self-defense. In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of that discretion. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Additionally, this court will not reverse an evidentiary ruling absent a showing of prejudice. Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (2005). All relevant evidence is admissible, except as otherwise provided by statute or court rule. Ark. R. Evid. 402. Evidence which is not relevant is not admissible. Id. Pursuant to Rule 401 of the Arkansas Rules of Evidence:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Self-defense in Arkansas is defined in pertinent part as follows:

(a)(1) A person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.

Ark. Code Ann. § 5-2-606 (Repl. 1997). McKeever argues that, under this standard the reasonable belief of the defendant is paramount and, thus, threats communicated from the victim to the defendant are relevant to show the reasonableness of the defendant’s belief that harm to himself is imminent.

McKeever states that the relevance of such threats is clear, and the fact that, in this case, one of the threats was computer-generated should go only to the weight, not the admissibility, of the threat. McKeever also states that his credibility was a central issue in this case.

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Related

Taffner v. State
541 S.W.3d 430 (Supreme Court of Arkansas, 2018)
Hinton v. State
2015 Ark. 479 (Supreme Court of Arkansas, 2015)
Vanoven v. State
380 S.W.3d 507 (Court of Appeals of Arkansas, 2011)
James v. State
2010 Ark. 486 (Supreme Court of Arkansas, 2010)
Bell v. State
266 S.W.3d 696 (Supreme Court of Arkansas, 2007)
McKeever v. State
240 S.W.3d 583 (Supreme Court of Arkansas, 2006)

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Bluebook (online)
240 S.W.3d 583, 367 Ark. 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckeever-v-state-ark-2006.