2nd brother loses high-court case

Convicted in El Chico killing, he called evidence lacking

The Arkansas Supreme Court shot down on procedural grounds a capital-murder convict's appeal in an opinion released Thursday.

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Kiywuan Perry, 26, had challenged the conviction and life sentence he received in Pulaski County Circuit Court. A jury found Perry guilty in the April 2012 robbery of his employer, the El Chico Restaurant in Little Rock, and the slaying of a co-worker, Jesus Herrera.

Perry and his brother, Zackeya Perry, 21, were convicted as the main conspirators in the robbery and shooting though several people were arrested.

A friend, Quantez Dobbins, and Kenya Smith, the mother of Kiywuan Perry's child, also were charged in the shooting. After testifying against the brothers, Dobbins received a two-year sentence and Smith received probation.

Kiywuan Perry's attorneys argued that the state's case against Perry hinged on testimony from accomplices and that there wasn't sufficient evidence to connect Perry to the shooting.

On Thursday, in a unanimous opinion penned by Chief Justice Jim Hannah, the justices disregarded the argument because attorneys failed to properly lodge their challenge to the evidence in circuit court when they requested a directed verdict.

The court also chose not to address an argument raised by Perry's attorneys that the court erred by not giving jury members a "verdict form" on which they could have decided whether Smith was an "accomplice" in the robbery and shooting.

The justices' reasoning, according to Hannah, was that Perry's attorneys offered no "cogent argument" to support the assertion.

The Perry brothers were arrested a day after gunmen burst into the now-shuttered El Chico restaurant on Rodney Parham Road and ordered everyone into the back freezer.

Herrera, a longtime employee, was isolated from the others and gunned down.

Kiywuan Perry's attorneys argued that the witnesses against Perry were "so clearly unbelievable" that "their testimony should be disregarded as a matter of law."

Perry's attorneys requested a directed verdict at trial, and were denied, and raised that request on appeal with the state's high court.

Hannah found that because the attorneys did not specify a reason or make an argument for why the prosecution's evidence was lacking in their motion, the rules of procedure compelled him to ignore them.

"When [a defendant] fails to make a specific motion for directed verdict indicating the particular deficiencies in the State's proof, it is as if he failed to object at all, and that failure below precludes our review of the sufficiency of the evidence on appeal," Hannah wrote.

Zackeya Perry lost a similar appeal before the court earlier this year.

Both men remained in state prison Thursday night.

Metro on 12/19/2014

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