{ "id": 3559466, "name": "Kevin McKENZIE, a/k/a Keith Barrett v. STATE of Arkansas", "name_abbreviation": "McKenzie v. State", "decision_date": "2005-05-12", "docket_number": "CR 03-775", "first_page": "257", "last_page": "278", "citations": [ { "type": "official", "cite": "362 Ark. 257" }, { "type": "parallel", "cite": "208 S.W.3d 173" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "343 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226578 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0526-01" ] }, { "cite": "349 Ark. 53", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513747 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "69" }, { "page": "70", "parenthetical": "emphasis added" }, { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ark/349/0053-01" ] }, { "cite": "343 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226498 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0062-01" ] }, { "cite": "841 S.W.2d 589", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1898915, 1898910 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0446-01", "/ark/310/0713-01" ] }, { "cite": "310 Ark. 713", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898910 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0713-01" ] }, { "cite": "310 Ark. 744", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898920 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0744-01" ] }, { "cite": "322 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447476 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0045-01" ] }, { "cite": "353 Ark. 384", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155514 ], "weight": 5, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0384-01" ] }, { "cite": "338 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243480 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "refusing to apply third Wicks exception in the case of allegedly improper cross-examination" }, { "parenthetical": "refusing to apply third Wicks exception in the case of allegedly improper cross-examination" } ], "opinion_index": 0, "case_paths": [ "/ark/338/0220-01" ] }, { "cite": "261 Ark. 820", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678931 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0820-01" ] }, { "cite": "606 S.W.2d 556", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1709259 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0554-01" ] }, { "cite": "126 S.W. 90", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1910, "opinion_index": 0 }, { "cite": "94 Ark. 65", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545399 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/ark/94/0065-01" ] }, { "cite": "85 S.W. 428", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "74 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720049 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/74/0256-01" ] }, { "cite": "190 S.W. 441", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "126 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551722 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ark/126/0354-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "786" }, { "page": "785-87" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "414 So.2d 234", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9537393 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/so2d/414/0234-01" ] }, { "cite": "961 F. Supp. 249", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 360755 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/f-supp/961/0249-01" ] }, { "cite": "926 F.2d 418", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542318 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f2d/926/0418-01" ] }, { "cite": "818 F. Supp. 238", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3785440 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/f-supp/818/0238-01" ] }, { "cite": "986 F.2d 1135", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 662087 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "1142" } ], "opinion_index": 0, "case_paths": [ "/f2d/986/1135-01" ] }, { "cite": "328 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50314 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0081-01" ] }, { "cite": "353 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155502 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0001-01" ] }, { "cite": "17 S.W.3d 61", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1257745 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0415-01" ] }, { "cite": "241 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "year": 2000, "opinion_index": 0 }, { "cite": "854 F.2d 65", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525187 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/f2d/854/0065-01" ] }, { "cite": "285 F.3d 744", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9446462 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "746" }, { "page": "747" }, { "page": "748" }, { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/f3d/285/0744-01" ] }, { "cite": "252 F.3d 968", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11089963 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "970" }, { "page": "971" }, { "page": "972" } ], "opinion_index": 0, "case_paths": [ "/f3d/252/0968-01" ] }, { "cite": "303 Ark. 375", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882800 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0375-01" ] }, { "cite": "297 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891423 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0066-01" ] }, { "cite": "318 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455726 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0201-01" ] }, { "cite": "306 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900905 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0417-01" ] }, { "cite": "147 S.W.3d 691", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 5368503 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0248-01" ] }, { "cite": "356 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5367207 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0345-01" ] }, { "cite": "348 Ark. 446", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74167 ], "weight": 7, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0446-01" ] }, { "cite": "355 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2649489 ], "weight": 4, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/355/0082-01" ] } ], "analysis": { "cardinality": 1374, "char_count": 35098, "ocr_confidence": 0.787, "pagerank": { "raw": 2.3116809485899797e-07, "percentile": 0.7885421119146329 }, "sha256": "9668a8ae88c131f520c4f6c84d51ae3fd9fff8cca21433fd2f4e4010bab3845b", "simhash": "1:aceae0a5028d501b", "word_count": 6002 }, "last_updated": "2023-07-14T18:25:30.363503+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kevin McKENZIE, a/k/a Keith Barrett v. STATE of Arkansas" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Kevin McKenzie was convicted of possession of marijuana and cocaine with intent to deliver and was sentenced to a total of sixty years\u2019 imprisonment. The court of appeals certified McKenzie\u2019s appeal to this court because the appeal presents an issue needing clarification or development of the law regarding the constructive possession of contraband. See Ark. Sup. Ct. R. 1-2(b)(5).\nIn his first point on appeal, McKenzie argues that the trial court erred in denying his directed-verdict motion because the evidence was insufficient to demonstrate beyond a reasonable doubt that McKenzie constructively possessed the contraband. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003); Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant\u2019s guilt and inconsistent with any other reasonable conclusion. Id.\nWe have explained that, in constructive possession cases, the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused. George v. State, 356 Ark. 345, 147 S.W.3d 691 (2004). Constructive possession may be established by circumstantial evidence. Polk, supra. When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Id. This control can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. George, supra; Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).\nFurther, while this court does not appear to have addressed this particular question in the context of a driver of an eighteen-wheel tractor-trailer, we have opined that joint occupancy of an ordinary vehicle (such as a car) standing alone, is not sufficient to establish possession or joint possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). There must be some other factor linking the accused to the drugs. Id. Other factors to be considered in cases involving automobiles occupied by more than one persons are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused\u2019s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id.; see also Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990).\nThe evidence presented during the State\u2019s case-in-chief at McKenzie\u2019s trial was as follows: On September 23, 2001, Officer Greg Toland of the Arkansas Highway Police was working at a weigh station in Crawford County. Toland pulled McKenzie over for a random inspection of his truck; when McKenzie showed Toland his log book, Toland noticed that McKenzie was two hours over his permissible drive hours. Toland also saw that McKenzie\u2019s bill of lading indicated that only two pallets had been picked up in California, which Toland thought unusual. Toland asked for consent to search the vehicle, which McKenzie granted.\nMcKenzie provided Toland with the key to open the trailer. When Toland and McKenzie opened the trailer, Toland noticed it was warmer than it should be, given that the bills of lading indicated that McKenzie was carrying lemons and grapefruit, which should have been stored at a temperature between thirty-seven and forty-five degrees, according to the loading sheet. After noticing the temperature, Toland saw that somebody had been on top of the load ofproduce, \u201clike they had been crawling from the back to the front,\u201d and the boxes were \u201cmashed down.\u201d Toland shone his flashlight underneath the pallets; at the very front, far end of the truck, he saw some green and black material that turned out to be duffel bags. Toland said that there was a \u201cspace on the left hand side, where you could see all the way down,\u201d and at the front, there was a stack of empty pallets.\nToland called for back-up, because McKenzie had a passenger in the cab of his truck. When Officer Jeff Smith of the Crawford County Sheriffs Department arrived, the two proceeded to the front of the trailer and started taking pallets off the top of the duffel bags; then they opened the bags and found 334.4 pounds of marijuana.\nJack Stepp, assistant safety supervisor for the Arkansas Highway Police, also testified for the State. Stepp testified about drivers\u2019 responsibilities under Department of Transportation regulations, stating that \u201cthe driver is ultimately responsible for [the] load\u201d in his trailer, and that \u201c[w]ith respect to produce, if there is a seal and a lock on the load, the driver is responsible for putting it there,\u201d although it was not common for a shipper ofproduce to lock the load. It was so unusual, Stepp testified, that he could not recall ever seeing a lock on a load ofproduce in his fifteen years of experience. Stepp further stated that it was uncommon to have the temperature at sixty-one degrees for a load ofproduce, and that it was \u201cnot a common trucking practice to have a load crawled on top of because it would damage the produce.\u201d Of the five or six trucks Stepp had seen where someone had crawled on top of the produce, he said, \u201call of them were hauling illegal controlled substances.\u201d\nWe believe that this evidence, viewed in the light most favorable to the State, supports the jury\u2019s finding of guilt. As mentioned above, there have been no other Arkansas cases involving constructive possession of contraband in a tractor-trailer or eighteen-wheeler, but cases from federal courts of appeal are instructive. For example, in United States v. Sanchez, 252 F.3d 968 (8th Cir. 2001), the Eighth Circuit Court of Appeals affirmed a conviction for possession of marijuana with intent to deliver. In that case, the facts showed that appellant Sanchez was driving a tractor-trailer; at a weigh station, Missouri State Highway Police Officer John Adams stopped the truck and decided to perform a safety inspection. Adams became suspicious because the trailer lacked proper registration; the bill of lading indicated that Sanchez was hauling onions from Springer, Oklahoma (despite the fact that Adams had never seen produce that originated in Springer, Oklahoma); the weight on the bill of lading did not match the weight on the scales; the onions were being refrigerated, even though it was November; and the trailer was only half-full, despite Sanchez\u2019s assertions that he was traveling all the way to the east coast. In addition, Adams later testified that Sanchez appeared nervous and had a difficult time sitting still while the two spoke. Sanchez, 252 F.3d at 970.\nA second officer arrived and asked permission to search the trailer; Sanchez gave the officer a key. When the officer looked in the trailer, he became suspicious that a false wall had been built into the trailer, because there was new metal trim that was out of keeping with the rest of the truck. Information that Sanchez gave to the officers about his trip eventually turned out to be false, such as the fact that the company for which Sanchez claimed to work indicated that they had never met Sanchez. In addition, a search of the cab turned up a Home Depot receipt that reflected the recent purchase of items consistent with those necessary to build a false compartment. Id. at 971.\nIn affirming, the Eighth Circuit held that Sanchez had sole control and dominion over the vehicle in which the contraband was discovered; Sanchez had given false and evasive answers in response to police questioning; and his testimony at trial was inconsistent with the responses he had given to police. Id. at 972.\nIn another Eighth Circuit case, that court affirmed a conviction for possession of cocaine with intent to distribute. United States v. Johnson, 285 F.3d 744 (8th Cir. 2002). There, appellant Johnson was stopped at a weigh station; the officer present discovered that Johnson\u2019s log book was missing information for three days of his trip. The log book did reflect, however, that Johnson had stopped in El Paso, Texas, which was several hundred miles out of the way for his stated itinerary of Bakersfield, California, to \u201csomeplace in Connecticut or Maryland.\u201d The officer also noticed that the trailer was locked with a lock \u201cof a type impervious to bolt cutters, and the truck\u2019s vent door, a small door permitting inspection of the load, was locked.\u201d Johnson, 285 F.3d at 746. When the officer finally got up into the back of the trailer and began moving boxes, Johnson jumped up into the truck to move the boxes around. Id. at 747. The officer eventually discovered forty boxes containing approximately 1,000 bricks of cocaine weighing 2,213 pounds. Id.\nAt trial, Johnson\u2019s passenger, Joseph Heck, testified that he and Johnson had moved some of the melons around \u201cin order to create an igloo-shaped space for a load Johnson said they would add in El Paso.\u201d Id. at 748. Heck also testified that he saw Johnson meet with several Hispanic men in El Paso, where the men loaded forty cardboard boxes into the truck. After leaving El Paso, Heck said, Johnson made several phone calls during which Heck heard him say, \u201cWe\u2019re on time,\u201d and \u201cShe\u2019s on board.\u201d Id. Given all of this evidence, the Eighth Circuit concluded that the jury was presented with \u201cample evidence that Johnson was aware of the cocaine in the truck and was transporting it as part of an agreement to distribute it[.]\u201d Id. at 750.\nSimilarly, in United States v. Morales, 854 F.2d 65 (5th Cir. 1988), the Fifth Circuit Court of Appeals held there was sufficient evidence of constructive possession to support appellant Morales\u2019s conviction, where there was testimony that Morales had dominion and control over the truck and trailer he was driving from the time he picked it up until he was stopped; further, an employee who oversaw the loading of the trailer testified that he saw no marijuana in the trailer when it was loaded, nor did he see anyone else in the trailer until Morales picked it up and drove away in it. Morales, 854 F.2d at 68. Thus, the court concluded, the jury could reasonably infer that the marijuana was placed inside the truck after Morales took possession of it, and that Morales had either actual or constructive knowledge of its presence. Id.\nIn the present case, McKenzie testified that he did not observe or oversee the loading of his truck, and was unaware of the presence of the contraband in the trailer he was hauling. However, this court has made it patently clear that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, see Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003), and a jury is not required to believe a defendant\u2019s self-serving testimony. See Sera v. State, 241 Ark. 415, 17 S.W.3d 61 (2000).\nThe State\u2019s evidence showed that McKenzie had the only key to a locked trailer, and the fact that the trailer was locked was very unusual, as it only contained produce. In addition, the pallets appeared to have had someone crawl over them; as McKenzie was the only person with a key to the trailer, the jury could reasonably have concluded that McKenzie was the person who crawled on the fruit to reach the contraband at the far end of the trailer. Further, McKenzie\u2019s testimony that he did not oversee the loading of the trailer was contradicted by the State\u2019s evidence that it was an established industry practice for the driver of a truck to observe the loading of his trailer. A defendant\u2019s improbable explanation of suspicious circumstances may be admissible as proof of guilt. See Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003); Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). In sum, we conclude in this constructive possession case that the State proved other factors linking McKenzie to the contraband, and we therefore reject his challenge to the sufficiency of the evidence.\nIn McKenzie\u2019s second point on appeal, he argues that the trial court erred in allowing the State to leave the marijuana out in the open during the trial. After the jury was selected for McKenzie\u2019s trial, the court asked counsel if there was \u201canything that needs to be taken up\u201d before opening arguments began. McKenzie\u2019s attorney replied, \u201c[Wje\u2019ve got to find aplace to put all this marijuana because, you know, obviously, it\u2019s permeating the air because of the fact that it\u2019s open.\u201d Counsel further objected on the grounds that the strong odor would \u201cgive the jury the impression that that\u2019s the condition it was in when it . . . was discovered, and that\u2019s not true.\u201d The court stated that it \u201c[didn\u2019t] see any problem with it. It can stay where it is. I need to get on with the trial.\u201d\nDuring trial, Dan Hedges of the State Crime Laboratory testified that the packages of marijuana were not open when they were delivered to his laboratory, and that the odor was caused by the \u201cterpenes coming off the plant material.\u201d Hedges noted that when the packages were sealed up, \u201csome people would smell something, and some people wouldn\u2019t. Some people probably wouldn\u2019t smell a thing.\u201d Just after Hedges\u2019s testimony, the court called the attorneys to the bench, whereupon the following colloquy occurred:\nCourt: Is any juror \u2014 I noticed some were using tissues. Is any of the jurors having trouble with the smell?\nJuror: I can\u2019t smell anything. I\u2019ve got allergies; that might be the reason.\nCourt: When we take a break, I\u2019d like for it to be removed. If they\u2019re not having an immediate problem, I\u2019ll leave it here. At the break, let\u2019s have it moved out.\nOn appeal, McKenzie argues that the trial court abused its discretion in allowing the marijuana to remain in the courtroom during the trial. He asserts that the State\u2019s entire theory was based on constructive possession, and suggests that the jury could have reasoned, based on the very strong smell in the courtroom, that McKenzie must have been able to smell the marijuana in the truck and, thus, have knowledge of its presence. The State responds that the marijuana was not, as McKenzie asserts, in the courtroom for the \u201centire first day of trial,\u201d pointing out that the record shows it was brought into the courtroom at 2:15 p.m. and was removed during a break between 4:45 and 5:00 p.m. The State further suggests that this was not an improper tactic, but was instead a critical element of the prosecution\u2019s case, as three of the State\u2019s four witnesses directly testified about the marijuana.\nThere is no reported Arkansas case involving the odor of marijuana in the courtroom. McKenzie relies on United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993), in which the Seventh Circuit Court of Appeals held that the trial court erred in allowing containers of marijuana to \u201cremain open and emit the odor of marijuana during the defendant\u2019s case in chief\u2019; the court noted that the problem was compounded by the fact that \u201cthe odor of marijuana in the truck\u2019s cab was a key issue.\u201d Garcia, 986 F.2d at 1142. The court opined that the government\u2019s refusal to close the containers appeared to be \u201cno more than an effort to produce a condition which supported its theory of guilt[.]\u201d Id.\nHowever, when the Garcia case was remanded to the federal district court, that court noted that it was \u201cdisturbed\u201d by the Seventh Circuit\u2019s ruling regarding the odor of marijuana. United States v. Garcia, 818 F. Supp. 238 (C.D. Ill. 1993). The district court wrote that it had presided over the trial and could \u201ccategorically state that there was no \u2018strong, pungent odor of marijuana\u2019 pervading the courtroom,\u201d Garcia, 818 F. Supp. at 240, and criticized Garcia for having \u201cdissembled\u201d and \u201cmisrepresented\u201d to the appellate court that the odor of marijuana permeated the courtroom. Id. The court also pointed out that Garcia did not object to the introduction of the physical evidence, and that marijuana, as a piece of evidence, was more probative than prejudicial. Id. Given the district court\u2019s clarifications of the facts of the Garcia case, McKenzie\u2019s reliance on the Seventh Circuit\u2019s ruling is inapposite.\nOther state and federal courts have held that it is not error to permit open containers of marijuana to remain in the courtroom during trial. In United States v. Ramos Rodriguez, 926 F.2d 418 (5th Cir. 1991), the Fifth Circuit Court of Appeals held that the presence of 227 pounds of marijuana in the courtroom during trial was neither a violation of Fed. R. Evid. 403 nor a due process violation, as the marijuana remained in the courtroom no more than four hours, and there was no evidence that the government had acted in bad faith. In United States v. Dunn, 961 F. Supp. 249 (D. Kan. 1997), a federal district court held that the odor of marijuana in tbe courtroom did not prejudice the defendant, where the marijuana had been properly admitted into evidence, and the defendant was able to argue to the jury that there was a difference in the \u201codor-producing circumstances of the marijuana\u2019s presence in the courtroom and its presence, wrapped in trash bags, in the trunk of a new, full-sized car.\u201d Dunn, 961 F. Supp. at 252. Finally, in Kalinosky v. State, 414 So.2d 234 (Fla. Ct. App. 1982), a Florida court of appeals held that there was no merit to Kalinosky\u2019s argument that his attorney had been rendered ill by the odor of the marijuana; the court did, however, \u201ccaution that the trial court and counsel should be continually conscious of maintaining a proper atmosphere of judicial decorum in the courtroom.\u201d Kalinosky, 414 So.2d at 235.\nWe cannot say that the presence and alleged odor of the marijuana in the courtroom during McKenzie\u2019s trial was unduly prejudicial. Only one juror responded to the court\u2019s question about jurors\u2019 using tissues, and that juror said that he had allergies and could not smell anything. Further, contrary to McKenzie\u2019s assertion in his brief, the forensic chemist did not specifically testify that the \u201cmarijuana odor\u201d in the courtroom was \u201cquite potent.\u201d As noted above, Dan Hedges testified that the odor in the courtroom was caused by the \u201cterpenes,\u201d which were \u201cquite potent.\u201d In any event, the court had the marijuana removed from the courtroom at the end of the testimony of the three witnesses who had been in contact with the marijuana. As such, there was no abuse of discretion in allowing the marijuana to stay in the courtroom during the first two and a half hours of the trial.\nThe final argument in this appeal concerns the prosecutor\u2019s cross-examination of McKenzie and his closing arguments to the jury. Although McKenzie acknowledges that his attorney never objected to either the cross-examination or the closing arguments, he contends on appeal that the prosecutor\u2019s errors were so flagrant and highly prejudicial in character as to have required the trial court to intervene on its own motion and admonish the jury to disregard the prosecutor\u2019s comments.\nBefore discussing the application of the so-called Wicks exceptions to our contemporaneous objection rule, see Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we set out the prosecutor\u2019s objectionable comments in their entirety. During the State\u2019s cross-examination of McKenzie, the two following sets of questions occurred \u2014 the first involved McKenzie\u2019s mother, and the second dealt with McKenzie\u2019s knowledge of the policies of the fruit-packing companies for whom McKenzie was driving. Prosecutor Marc McCune\u2019s exchange with McKenzie about his mother was as follows:\nQ: You\u2019ve testified that you were a law enforcement officer.\nA: Law enforcement, yes.\nQ: Would it surprise you if your mom said you were not in law, never were in law enforcement?\nA: My mom could never tell you that.\nQ: Your mom told me that.\nA: My mom could never tell you that.\nQ: Your mom\u2019s name is Maude Ford.\nA: My mom could never tell you that. I spent five years in the military law and with law enforcement.\nQ: Your mom\u2019s name is Maude Ford:\nA: Correct.\nQ: Lives in Pompano Beach, Florida?\nA: My mother does not live in Pompano Beach, Florida. My mother lives in Hollywood, Florida.\nQ: Hollywood, Florida? Would it surprise you that she said you left because you were accused of a crime in Kingston, Jamaica?\nA: My mom could never tell you that I was accused of a crime in Kingston, Jamaica, Mr. McCune.\nQ: Would it surprise you that I talked to your mom on the phone?\nA: Well, Mr. McCune, you could not have talked to my mom on the phone. My mom does not have a phone. You might have got that communication because I communicated with my mom from the mail while I\u2019m here.\nQ: Would it surprise you that I looked up your mom\u2019s name on the internet, and your mom has a phone?\nA: My mom does not have a phone, Mr. McCune. I would have called her from \u2014 if my mom had a phone, I would have called her. And I know that the phone record doesn\u2019t show that I ever called my mom since I\u2019m here, and that is my mom.\nQ: Right. And, so, it doesn\u2019t surprise you that your mom said you were accused of a crime in Kingston, Jamaica, and that\u2019s why you came to America?\nA: I never . . . was accused of a crime in Jamaica. I spent five years in the military, and I happened to be ... [to] help the DEA from here to put away people like politicians who are involved in drugs and \u2014 er \u2014 er \u2014 gang leaders.\nQ: Mr. McKenzie, would it surprise you that DEA said they had no record of your ever helping, assisting, or arresting anybody?\nA: That could never be true, Mr. McCune, because DEA came to Jamaica back then in order for us to stop the flow of drugs coming from Jamaica to this country.\nQ: Mr. McKenzie, my question is, would it surprise you that they have no record of you ever helping or assisting?\nA: It would surprise me, because I helped.\nQ: Okay. Thank you.\nThe next exchange occurred when McCune was asking McKenzie about McKenzie\u2019s response to the temperature variance in the back of the truck:\nQ: Wouldn\u2019t you think the fruit companies have a better knowledge of how to refrigerate fruit than you?\nA: I have seen where shippers tell you to put your \u2014\nQ: Mr. McKenzie, my question is, don\u2019t you think they would have a better knowledge than you, not other shippers, you?\nA: I have better knowledge. I see where I have knowledge better than the shippers because they tell you to put \u2014 to set the temperature at a certain degree, and it is wrong.\nQ: Now, when you\u2019re loading, are you permitted to be back there and watch them load?\nA: Most docks, you are not in California.\nQ: I\u2019m not talking about most docks. These loads you picked up.\nA: I never did.\nQ: Are you permitted?\nA: You are not permitted.\nQ: Not permitted?\nA: Because of liability purpose. I was there.\nQ: Would you be surprised if Blue Banner says they have posted signs, saying, stand back there and watch it and count it?\nA: They never \u2014 there was no sign that says, driver \u2014 I see sign for liability purpose; the drivers are not permitted on the dock. You could get sued \u2014 they could get sued for it.\nQ: Would it surprise you that Blue Banner said they had posted signs, saying to watch it?\nA: It would surprise me.\nQ: Would it surprise you that Ventura Pacific says that more than ninety percent of the drivers stand back in the loading docks and watch it and watch it be counted?\nA: There was no reason \u2014 when I went there, that was the reason why the loading had \u2014\nQ: Mr. McKenzie, my question is, would it surprise you that Ventura Pacific says that more than ninety percent of their drivers watch it being loaded and counted?\nA: It would surprise me, Mr. McCune, because there were signs there, that says that there is no \u2014 drivers not permitted to be on the dock because of liability purpose.\nQ: So, it would surprise you that if Ventura said the drivers are encouraged to observe the product as it is loaded, as they are solely responsible for their count and the method of loading?\nA: It would surprise me because they didn\u2019t want you to be on the dock, in the first place; and then it was a contract between the shipper and receiver. There was no reason for me to be on the back[.]\nQ: So Blue Banner and Ventura Pacific, they\u2019d be lying if they said that you could stand back there and watch?\nA: It\u2019s a surprise to me because the sign is there.\nQ: Would it also surprise you that Ventura Pacific, in checking this load number, says, no locks or seals were applied to your trailer?\nA: There\u2019s a contract between the shipper and the receiver. There was \u2014\nQ: My question is, would it surprise you when they check their loading records, that no lock or seal was applied to your trailer?\nA: It would surprise me because they gave me a lock to put on that trailer because of the contract between the shipper.\nQ: Would it surprise you that Blue Banner does not lock or seal?\nA: It surprises me because they do have a lock and seal.\nQ: Would it surprise you that Ventura says, we do not use door locks under any circumstances?\nA: It surprises me because they gave me a lock; they had a lock there.\n* * * *\nQ: So, it would surprise you when they say \u2014 these companies say, we don\u2019t put locks or seals under any circumstances?\nA: It would surprise me.\nQ: Who opens up your doors?\nA: When we back up there, somebody\u2019s there with a key because once you give them your load number and your shipping number \u2014\nQ: Who opens up your doors? The question is, who opens up your doors?\nA: They got a hand, somebody there, that comes out there with the key to open the door.\nQ: Would it surprise you that Blue Banner and Ventura says [s/c] that the driver backs it up, the driver opens the door, the driver pulls forward, and the driver closes the door?\nA: It surprises me, Mr. McCune, because on this particular load, this is exactly what took place.\nQ: So these companies, again, would be lying?\nA: [No oral response.]\nFinally, we quote prosecutor McCune\u2019s statements made during his closing argument:\nWhat did McKenzie put on the truck, a lock that he had the key to. Jack Stepp testified that in his fifteen years of experience, produce haulers driving trucks do not lock their trucks. Blue Banner and Pacific, they don\u2019t put any locks or seals on it because it\u2019s fruit. It\u2019s not like they\u2019re haulingTVs, it\u2019s not like they\u2019re hauling DVD players for BestBuy or something like that. It\u2019s true. They don\u2019t lock them. Blue Banner doesn\u2019t lock; Ventura Pacific doesn\u2019t lock.\n* * * *\nThen we use our common sense on who\u2019s responsible for the load. All the officers testified, even \u2014 even McKenzie said that the driver\u2019s responsible for it. Ventura Pacific said over ninety percent of their drivers watch it because they\u2019re responsible.... Blue Banner says the drivers, they have signs posted up there saying, you need to watch it and you need to count because you\u2019re responsible.\n(Emphasis added.) And during his rebuttal closing argument, Mc-Cune said the following:\n[McKenzie] said that truck drivers, this is all standard procedure, they don\u2019t watch it, they don\u2019t pay attention. Well, what did Ventura Pacific say, that ninety percent of the drivers watch the loading procedure, watch it and count it. Mr. McKenzie got up there and said, oh, the companies open and close your doors; [but] both Blue Banner and Ventura Pacific said no, it\u2019s the driver\u2019s truck, they open it and they close their doors. Mr. McKenzie said they lock it, and there\u2019s a contract, where they\u2019ve got this key that they just pass it on to these different companies. Well, Ventura Pacific on this particular load number said no locks or seals applied. Blue Banner says no locks applied.\n(Emphasis added.)\nClearly, Mr. McCune was, in essence, testifying during his cross-examination of McKenzie; just as clearly, because the State never called a witness from either Blue Banner or Ventura Pacific to testify about the companies\u2019 shipping practices during the State\u2019s case-in-chief, McCune was arguing facts not in evidence during his closing arguments. The question, however, is whether this unprofessional conduct was so egregious as to give rise to the trial court\u2019s duty to intervene, without an objection from McKenzie\u2019s attorney, Charles Waldman.\nIn Wicks, 270 Ark. 781, 606 S.W.2d 366, this court recognized four exceptions to the contemporaneous objection rule, of which only the third one is relevant in the instant case. The Wicks court wrote as follows:\nA third exception is a mere possibility, for it has not yet occurred in any case. That relates to the trial court\u2019s duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial. We implied in Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection is necessary if the trial court fails to control a prosecutor\u2019s closing argument and allows him to go too far: \u201cAppellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256 [85 S.W. 428 (1905)]; Harding v. State, 94 Ark. 65 [126 S.W. 90 (1910)].\u201d\nWicks, 270 Ark. at 786. Of particular importance for the present case, however, the Wicks court also rendered the following caution:\nIt must be noted that, first, we did not reverse the judgment in Wilson, and second, the quoted statement was taken essentially from the cited Murphy case, where we went on to say explicitly that if the court faih to restrain an improper argument, counsel should make a definite objection and call for a ruling. We have mentioned the Wilson suggestion in two recent cases, but in neither one was the judgment actually reversed because of the trial court\u2019s failure to act on its own motion. Ply v. State, 270Ark. 554, 606 S.W.2d 556 (1980); Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977). Thus, every statement of the original Wilson suggestion has been obiter dictum, because no judgment has been reversed on account of the trial court\u2019s failure to intervene. Such a reversal would necessarily be an extremely rare exception to our basic rule.\nId. at 786-87 (emphasis added); see also Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999) (refusing to apply third Wicks exception in the case of allegedly improper cross-examination).\nMcKenzie concedes that this exception has still never been applied in the context of improper cross-examination or closing arguments. Indeed, this court recently pointed out in Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), that the third Wicks exception has only been applied to cases in which a defendant\u2019s fundamental right to a trial by jury is at issue. Anderson, 353 Ark. at 398 (citing Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992)). The Anderson court further pointed out that the third Wicks exception \u201chas not been applied to consider possible prosecutorial errors in relation to cross examination, Vaughn v. State, [supra], to privileged testimony, Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000), or closing arguments, Buckley [v. State, 349 Ark. 53, 76 S.W.3d 825 (2002)], and Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001).\u201d Id.\nIn Buckley, supra, this court rejected an argument that the prosecutor\u2019s reference to another criminal case was improper and fundamental error; there, the State had asked a character witness for the defense if she \u201c \u2018would be surprised\u2019 to find out that Buckley had provided drugs to \u2018some person who was on a binge that killed somebody that night.\u2019 \u201d Buckley, 349 Ark. at 69. Despite Buckley\u2019s protestations of prejudice, this court held that \u201cthis kind of alleged error must be preserved by contemporaneous objection.\u201d Id. at 70 (emphasis added). In addition, the Buckley court rejected an argument that the third Wicks exception should apply where the State had allegedly argued outside the record by telling jurors that Buckley had been trafficking in drugs for ten years. Buckley did not object that the prosecutor was arguing outside of the record, and this court declined to conclude that this kind of error was so \u201cfundamental\u201d that the Wicks exception should apply. Id. at 69.\nIn the instant case, while we express serious concern over both prosecutor McCune\u2019s improper cross-examination and closing argument and defense attorney Waldman\u2019s obvious failure to object to the prosecutor\u2019s overly aggressive conduct, we must conclude that the errors of which McKenzie complains are not of the sort that fall into the third Wicks exception and that would require the trial court to intervene on its own motion. McKenzie\u2019s remedy, if any, is a petition for postconviction relief under Ark. R. Crim. P. 37.\nAffirmed.\nDan Hedges, a forensic chemist at the Arkansas State Crime Lab, testified that he tested the matter removed from the track, and it was indeed marijuana; there were also 4.26 pounds of cocaine.\nDespite this exchange, the State never introduced testimony or documentary evidence from either of the two California shipping companies that would have proven what their shipping practices were.\nThe first exceptions occur 1) when the trial court fails to bring to thejury\u2019s attention a matter essential to its consideration of the death penalty itself; 2) when defense counsel has no knowledge of the error and hence no opportunity to object. The fourth exception arises in the context ofArk.R.Evid. 103(d), which provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention of the trial court. See Wicks, 270 Ark. at 785-87; Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003).", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Leah Chavis, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Misty Wilson Borkomki, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Kevin McKENZIE, a/k/a Keith Barrett v. STATE of Arkansas\nCR 03-775\n208 S.W.3d 173\nSupreme Court of Arkansas\nOpinion delivered May 12, 2005\nLeah Chavis, for appellant.\nMike Beebe, Att\u2019y Gen., by: Misty Wilson Borkomki, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0257-01", "first_page_order": 279, "last_page_order": 300 }