Cite as

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.07.21 13:59:52 DIVISION I No. CR-18-546 -05'00' Adobe Acrobat version: 2022.001.20169 Opinion Delivered August 28, 2019

KWASI ANDRADE MCKINNEY APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT APPELLANT [NO. 14CR-16-35]

V. HONORABLE DAVID W. TALLEY, JR., JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

LARRY D. 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,

,

at 9,

. 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.

at

9–10,

. 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,

.

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

2 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,

.

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

3 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,

, at 22,

; Wallace v. State,

,

.

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.,

, at 3–4,

(citing Stilley v. Fort Smith Sch. Dist.,

,

(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,

,

.

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

4 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

motions to recuse are nothing more than conclusory allegations that the circuit court is biased

or prejudiced. Accordingly, we hold that the circuit court did not abuse its discretion in

denying McKinney’s request for a hearing on his motion to recuse.

For his fourth and final point on appeal, McKinney argues that even without the benefit

of a hearing, the circuit court was required to recuse pursuant to Rule 2.11 of the Arkansas

Code of Judicial Conduct based on the undisputed fact that the trial judge had represented

McKinney previously, which he claims demonstrates the appearance of impropriety and calls

into question the trial judge’s impartiality.

Judges must perform their duties impartially, without bias or prejudice. Brown v. State,

,

(citing Ark. Code Jud. Conduct R. 2.2 & 2.3(A)

(2012)). Judges are presumed to be impartial, and the person seeking the recusal bears the

burden of proving otherwise.

(citing Owens v. State,

,

(2003)). A trial judge has a duty not to recuse from a case when no prejudice exists.

Id. at 5,

. Thus, if there is no valid reason for the judge to disqualify himself

or herself, the judge has a duty to remain on the case.

. Finally, the trial

judge’s decision not to recuse is a discretionary one and will not be reversed on appeal absent

an abuse of that discretion.

. To decide whether there has been an abuse

of discretion, this court reviews the record to determine if prejudice or bias was exhibited.

.

5 Our review of the record reveals that McKinney has failed to present any evidence of

bias or prejudice exhibited by the trial judge. McKinney relies on Rule 2.11(A)(1), which

mandates disqualification if a “judge has a personal bias or prejudice concerning a party or a

party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.” Ark. Code

Jud. Conduct R. 2.11(A)(1). However, as stated above, there is a complete absence of facts

alleged or evidence introduced to demonstrate that the trial judge’s comments or actions were

biased or prejudiced against McKinney before, during, or after the suppression hearing. The

mere fact that a judge has ruled against a party is not sufficient to demonstrate bias. City of

Rockport v. City of Malvern,

,

.

The argument that recusal was warranted because the trial judge represented McKinney

in various criminal matters from 2003 to 2010 is without merit. As set forth above, Rule

2.11(A)(6)(a) provides that a judge shall disqualify himself or herself when the judge served as

a lawyer in the matter in controversy, and there is no allegation or evidence that the trial judge

represented McKinney in this case. Further, our supreme court has held that the mere fact

that a judge previously prosecuted a defendant for a separate crime is not by itself grounds for

recusal. Brown,

,

; see also Beshears v. State,

,

(1997) (holding that the trial judge’s prior prosecution of the

appellant in a criminal matter and representation of the appellant in a civil matter did not

warrant the trial judge’s recusal to avoid the appearance of impropriety absent any evidence of

bias or prejudice).

Because McKinney has failed to present any evidence that the circuit court

demonstrated bias or prejudice against him, he has failed to rebut the presumption that the

6 trial judge was impartial. Accordingly, we hold that the circuit court did not abuse its discretion

in denying the motion to recuse, and we affirm all three orders entered by the circuit court on

April 25, 2018: the order denying McKinney’s motion to suppress statement, the order denying

his motion to suppress search, and the order denying his motion to recuse.

Affirmed.

GLADWIN and BROWN, JJ., agree.

Davis Firm, PLLC, by: Michael L. Yarbrough, for appellant.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

7