Johnson v. State
| Decision Date | 01 April 2004 |
| Docket Number | No. CR 02-1362.,CR 02-1362. |
| Citation | 356 Ark. 534,157 S.W.3d 151 |
| Parties | Stacey Eugene JOHNSON v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Jeff Rosenzweig; and Dorcy K. Corbin, Arkansas Public Defender Comm'n, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Jeffrey A. Weber, Ass't Att'y Gen., Little Rock, for appellee.
Appellant Stacey Eugene Johnson was convicted of capital murder in the death of Carol Heath and was sentenced to death in 1994. See Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1848, 137 L.Ed.2d 1051 (1997) (Johnson I). We reversed that conviction because the trial court admitted a statement from the victim's daughter identifying Mr. Johnson, after the daughter had been found incompetent to testify at trial. Id. A change of venue was granted for the retrial, in which the daughter was found competent to testify and did so, identifying Mr. Johnson. He was convicted and again sentenced to death, and we affirmed the conviction and sentence. See Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1408, 149 L.Ed.2d 350 (2001) (Johnson II). A complete recitation of the facts and circumstances surrounding the murder of Carol Heath and the evidence presented at Mr. Johnson's trial is not necessary here, but may be found in Johnson II.
This is an appeal from a hearing that concerned two petitions filed by Mr. Johnson. The first was a Rule 37 petition claiming ineffective assistance of counsel, and the second was an Act 1780 petition for writ of habeas corpus filed in December 2001, which sought new testing and retesting of DNA evidence. In August 2002, the circuit court denied both the Rule 37 and the Act 1780 petitions in separate orders. Two days before the circuit court's ruling, Mr. Johnson moved to supplement his petition with a claim that victim-impact evidence and his resulting death sentence violated the rule of law handed down by the U.S. Supreme Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The trial court denied the motion to supplement.
Mr. Johnson appeals on four points. First, Mr. Johnson contends the circuit court erred in denying his Act 1780 petition for further DNA testing of evidence. Second, Mr. Johnson asserts numerous points of error regarding the circuit court's denial of his Rule 37 petition. Next, Mr. Johnson argues error in the denial of the motion to supplement his petition after the U.S. Supreme Court handed down Ring v. Arizona, supra. Finally, Mr. Johnson reargues that his death sentence was in violation of the federal and state constitutional prohibitions against ex post facto laws.
We agree with Mr. Johnson that his Act 1780 petition should have been granted for retesting of some DNA evidence; therefore, we reverse and remand for that DNA retesting to be performed. We affirm on all other points.
Arkansas Rule of Criminal Procedure 37.3 gives our court jurisdiction over this appeal of a denial of Rule 37 postconviction relief; also, as this is a case involving a sentence of death, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(a)(2).
In appeals of postconviction proceedings, we will not reverse a trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.; Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).1
As to Rule 37 claims of ineffective assistance of counsel, the general standard of review is found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland two-pronged test first requires the defendant to show that counsel's performance was deficient to the extent that "counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. There is a strong presumption that counsel's conduct falls within reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Counsel is allowed great leeway in making strategic and tactical decisions and those decisions are a matter of professional judgment. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Matters of trial tactics and strategy are not grounds for postconviction relief on the basis of ineffective assistance of counsel. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). The second prong of Strickland requires a showing of prejudice such that counsel's deficient performance deprived the defendant of a fair trial. Id. at 687, 104 S.Ct. 2052. This court has described this prejudice as meaning that the defendant must show there is a reasonable probability that, but for counsel's errors, the outcome of the trial — either in the guilt or the penalty phases — would have been different. See State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001); Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986).
Mr. Johnson requested DNA testing of some evidence and retesting of other evidence both under Act 1780 of 2001, which is codified at Ark.Code Ann. § 16-112-201-207 (Supp.2003), and under Rule 37, asserting trial counsel was ineffective for failing to request testing. The evidence at issue consists of the following: (1) a cigarette butt that was located in a green shirt that was bloodstained with the victim's blood and was found in the woods in close proximity to the victim's purse and a white t-shirt that also had the victim's blood on it; (2) negroid hairs found on the white t-shirt and in the victim's apartment on and around the victim's body; and (3) caucasian hairs that were found in the victim's apartment and on the green shirt in the woods. DNA test evidence was presented at both trials on the cigarette butt and negroid hairs, and Johnson was not able to be excluded as the donor of the DNA. According to Kermit Channell of the Arkansas Crime Laboratory, the chances the DNA belonged to another African American was 1 in 250.
Sometime after the first trial, further testing was performed on the saliva on the cigarette butt and it was shown that Johnson still was not excluded as the donor and the probability that another African American was the donor of the DNA was decreased from 1 in 250 to 1 in 28 million. In other words, retesting actually made it more likely that it was Johnson's DNA on the cigarette butt. The negroid hairs were not retested. The caucasian hairs have never been tested, and the prosecution stipulated that they did not belong to Johnson.
Along with his Rule 37 request for retesting, Mr. Johnson requests retesting of the above items under Act 1780 of 2001, which provides for retesting of evidence when there is new scientific technology available that was not available at trial. Act 1780 of 2001 is codified at Ark.Code Ann. §§ 16-112-201 through 207, and reads as follows:
(a)(1) Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid [DNA] testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence if:
(A) The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; and
(B) The evidence was not subject to the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
(2) The motion shall be filed before the court in which the conviction was entered.
(3) Reasonable notice of the motion shall be served on the prosecuting attorney who represented the state at trial.
(b) A person who makes a motion for the performance of fingerprinting, forensic deoxyribonucleic acid testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence must present a prima facie case that:
(1) Identity was an issue at trial; and
(2) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
(c)(1) The court shall order that testing be performed if:
(A) A prima facie case has been established under subsection (b) of this section;
(B) The testing has the scientific potential to produce new noncumulative evidence materially relevant to the defendant's assertion of actual innocence; and
(C) The testing requested employs a scientific method generally accepted within the relevant scientific community.
(2) The court shall impose reasonable conditions on the testing designed to protect the state's interests in the integrity of the evidence and the testing process.
Ark.Code Ann. § 16-112-202 (Supp.2003).
Illinois was the first state to pass postconviction DNA testing laws, and Arkansas's Act 1780 was largely modeled after the Illinois laws. The Illinois model was used by at least three other states, Delaware, Idaho, and Missouri, but most states follow a New York model which differs greatly in standards of review and is more akin to an ineffective assistance standard. Like Act 1780, Illinois's law requires:
(1) identity must have been an issue at trial;
(2) scientific evidence must not have been available at trial;
(3) testing must have potential to produce new, noncumulative evidence materially relevant to the assertion of actual innocence; and
(4) almost identical provisions for the preservation of evidence.
See 725 Ill. Comp. Stat. 5/116-3 (West 1998) (cited in People v. Savory, 197 Ill.2d 203, 258 Ill.Dec. 530, 756 N.E.2d 804 (2001)).
In People v. Savory, supra, the Illinois Supreme Court...
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