Ka Makkali v. State
2017 Ark. 46
| Ark. | 2017Background
- Malik (Saba) Ka Makkali (aka Gary Cloird) was convicted in 1992 of rape and van theft; convictions and consecutive sentences were previously affirmed.
- In 2002–2004 Makkali pursued coram nobis relief alleging undisclosed DNA evidence; courts found vaginal-swab DNA would not be exculpatory.
- In July 2015 Makkali filed a habeas petition under Act 1780 (Ark. Code §16-112-201 et seq.) seeking DNA testing of a vaginal swab and, after remand, moved to amend to seek testing of a shotgun, screwdrivers, handgun, toilet roll, bedsheet, fingerprints, and ‘‘fact testing’’ of phone bills.
- The Jefferson County Circuit Court denied the habeas petition and the amendment as untimely and meritless; Makkali timely appealed.
- The Arkansas Supreme Court held the appeal presents no merit: Makkali failed to rebut the statutory presumption of untimeliness and failed to show additional testing would significantly advance a claim of actual innocence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition was timely under Act 1780 and its amendments | Makkali argued testing requests should be considered despite delay; alleged incompetence and asserted innocence | State argued petition was filed >36 months after conviction, raising rebuttable presumption of untimeliness and that Makkali failed to meet statutory exceptions | Court: Petition untimely; Makkali failed to rebut presumption (no competent evidence, new evidence, new tech, manifest injustice, or good cause) |
| Whether vaginal-swab DNA testing could significantly advance claim of innocence | Makkali contended retesting could exonerate him of participation in rape | State pointed to victim testimony, co-defendant confession, witness statements and prior rulings showing oral contact would not be proved/disproved by vaginal-swab DNA | Court: Additional vaginal-swab testing would not create reasonable probability of innocence; prior holdings confirm nonexculpatory nature |
| Whether testing of other items (guns, tools, bedsheet, toilet roll) met Act 1780 requirements | Makkali sought testing of multiple items to show noninvolvement | State argued items not shown to be in State custody with preserved chain of custody and testing would not materially advance innocence claim | Court: Makkali failed to show items were preserved under required conditions or that testing would significantly advance claim |
| Whether fingerprint testing and ‘‘fact testing’’ of phone bills could exonerate Makkali | Makkali contended further fingerprint analysis or phone-bill analysis could place him elsewhere or show others’ use of cards | State noted lack of specificity about items, trial testimony that prints were not recovered, and evidence that a friend used the calling cards | Court: Requests deficient and would not overcome strong testimonial evidence; insufficient to advance claim |
Key Cases Cited
- Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (affirming convictions) (background on original conviction and appeal)
- Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004) (coram nobis: vaginal-swab DNA would not be exculpatory)
- Pankau v. State, 2013 Ark. 162 (Act 1780 allows testing when new scientific evidence proves actual innocence)
- King v. State, 2013 Ark. 133 (DNA testing authorized when it will significantly advance claim in light of all evidence)
- Clemons v. State, 2014 Ark. 454 (petition must identify specific evidence, chain of custody, and a defense theory showing actual innocence)
- Hill v. State, 2016 Ark. 258 (amendments created predicate requirements, including rebuttable presumption for petitions filed >36 months post-conviction)
- Crawford v. Cashion, 2010 Ark. 124 (appeals from postconviction orders may be dismissed when appellant cannot prevail)