591 S.W.3d 265 (Ark. 2019), CR-18-700, Johnson v. State

Docket Nº:CR-18-700
Citation:591 S.W.3d 265, 2019 Ark. 391
Opinion Judge:SHAWN A. WOMACK, Associate Justice
Party Name:Stacey Eugene JOHNSON, Appellant v. STATE of Arkansas, Appellee
Attorney:Bryce Benjet, pro hac vice, The Innocence Project; and Lassiter & Cassinelli, Little Rock, by: Erin Cassinelli, for appellant. Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
Judge Panel:Baker, J., concurs. Hart and Wynne, JJ., dissent. Karen R. Baker, Justice, concurring. Josephine Linker Hart, Justice, dissenting. Robin F. Wynne, Justice, dissenting.
Case Date:December 12, 2019
Court:Supreme Court of Arkansas

Page 265

591 S.W.3d 265 (Ark. 2019)

2019 Ark. 391

Stacey Eugene JOHNSON, Appellant

v.

STATE of Arkansas, Appellee

No. CR-18-700

Supreme Court of Arkansas

December 12, 2019

Page 266

APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT [NO. 67CR-93-54], HONORABLE CHARLES A. YEARGAN, JUDGE

Bryce Benjet, pro hac vice, The Innocence Project; and Lassiter & Cassinelli, Little Rock, by: Erin Cassinelli, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

OPINION

SHAWN A. WOMACK, Associate Justice

Stacey Johnson was twice convicted and sentenced to death for the 1993 murder of Carol Heath. Johnson has challenged his conviction on direct appeal, in state postconviction proceedings, and on federal habeas review. All of his challenges have ultimately proven unsuccessful. Now, Johnson seeks DNA testing of twenty-six pieces of evidence. He contends the results of the proposed testing could possibly exonerate him. The court is authorized to order testing only under certain specified conditions. See Ark. Code Ann. § § 16-112-201-208 (Repl. 2016) ("Act 1780"). The circuit court concluded that Johnson failed to meet the predicate requirements for testing and denied his request. We affirm.

I.

A.

On the morning of April 2, 1993, Carol Heath was found dead on the living room floor of her DeQueen duplex. She was lying in a pool of blood, dressed only in a white shirt that had been wadded up around her neck. Her throat had been sliced through one-quarter inch into her spine, completely severing her windpipe, strap muscles, and the major arteries and veins in her neck. But that was not the sole cause of her death. Heath had also been strangled and sustained blunt force head injuries. The defensive wounds scattered across her arms and legs suggested that she tried to resist her attacker. Bite marks were found on each breast. A small contusion was discovered near the vaginal area that was consistent with, but not conclusive of, sexual assault.

Heath’s two children were also in the home that night: Ashley, six years old, and Jonathan, age two. They were in the bedroom when Heath’s body was discovered by her sister-in-law, Rose Cassady. After police removed the children through the bedroom window, Ashley told Cassady that "a black man broke in last night."

A few hours later, Ashley was interviewed by Arkansas State Police Investigator Hayes McWhirter. She told McWhirter that a black male with a "girl sounding name" had come over that night. He wore a "black hat with something hanging down in the back," a green shirt, and a sweater. According to Ashley, the man told Heath he had just been released from jail and was mad at Heath for dating Branson Ramsey. She saw the man and her mother fighting. Ashley then saw Heath lying on the floor bleeding, while the man stood next to Heath with a knife in hand. After the interview, Ashley twice identified Johnson— an African American male— from a line-up of seven photographs.

Prior to Heath’s murder, Johnson lived in Albuquerque, New Mexico. He came to DeQueen in January 1993 to attend his father’s funeral. While in town, Johnson met Ramsey, who was dating Heath at the time. He followed Ramsey to a party at Heath’s apartment. According to Shawnda Flowers Helms, Heath’s friend, Johnson asked both women if they would date him

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and transport drugs for him. They refused and told him they did not date black men. Soon thereafter, Johnson approached the women at Ramsey’s social establishment. He again asked them to date him and transport drugs. They again refused. Helms testified that Johnson appeared angry each time they rejected him.

Johnson was soon arrested for being a felon in possession of a firearm. He was incarcerated in the Sevier County jail from February 1993 until April 1, 1993. Steve Hill, a fellow inmate, testified that Johnson talked about meeting Heath through Ramsey and his plans to see her when he was released. According to Hill, Johnson also stated that "when he got out, he was going to have sex with the first woman he ran into." The day before his release, Johnson spoke about Heath with another inmate, Bobby Ray Wilkinson. Johnson told Wilkinson that he had "fucked her a time or two." Wilkinson knew Heath and did not believe him. So, Wilkinson asked him to describe the inside of her apartment, which he did. Before Johnson was released the following afternoon, he told Wilkinson that "he was going to go see [Heath] and he was going to fuck her again when he got out."

On April 1, Johnson was released from jail at 2:00 p.m. He was the only African American male released from the Sevier County jail between March 14 and April 2 that year. After his release, Johnson went to his stepmother’s home. She gave him a white t-shirt that had belonged to his father. When Johnson left that evening, he was wearing a black "do rag," a green shirt, and a jacket. He told her that he planned to stay the night with a white girl who had two young children.1 Heath’s body was found the next morning.

Three days after Heath’s murder, her purse was discovered by a local resident at a roadside park between DeQueen and Horatio. Police examined the area and found a green pullover shirt, a white t-shirt, and a towel. A partially smoked cigarette was found in the pocket of the green shirt. Johnson’s stepmother later testified that the white shirt looked like the one she had given him on April 1. She also recognized the green shirt as the one Johnson wore when she last saw him that evening. Testing revealed that the blood on the shirts and towel was consistent with Heath’s DNA. Saliva on the cigarette was consistent with Johnson’s DNA, as were several African American hairs found on and around Heath’s body. This scientific evidence connected Johnson to both crime scenes.

Johnson was arrested several days later in Albuquerque after providing false identification during a traffic stop. He offered the arresting officers $5,000 each to release him. At the station, Johnson gave his true identity and confessed to one officer that he killed someone in Arkansas and had a warrant out for his arrest. He was soon extradited to Arkansas and stood trial for capital murder.

B.

Johnson was first convicted of capital murder and sentenced to death in 1994. Because Ashley was found not competent to testify, the trial court allowed Officer McWhirter to read her prior statement and testify to her identification of Johnson. On appeal, we held that Ashley’s identification was not admissible under the excited utterance exception to the hearsay rule. See Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996) (Johnson I ). We reversed and ordered a new trial.

Page 268

Johnson was re-tried in 1997. This time, Ashley was competent to testify. New STR-DNA testing had also been conducted on the partially smoked cigarette, the green shirt, and the African American hairs. Under the new testing, the probability of the saliva on the cigarette belonging to anyone other than Johnson decreased to one in 28 million African Americans. See Johnson v. State, 356 Ark. 534, 543, 157 S.W.3d 151, 159 (2004) (Johnson III ). The testing also showed that the African American hairs found on and around Heath’s body were consistent with Johnson’s DNA and would occur in one of 720 million African Americans. See Johnson v. State, 366 Ark. 390, 392, 235 S.W.3d 872, 873 (2006) (Johnson IV ). The probability that the blood on the green shirt belonged to Heath was similarly bolstered. Id.

Nevertheless, Johnson maintained his innocence. He alleged that another person, namely Ramsey, murdered Heath. But the jury was not convinced. Johnson was once again convicted of Heath’s murder and sentenced to death. The conviction was affirmed on direct appeal. See Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000) (Johnson II ).

Johnson unsuccessfully sought postconviction relief under Rule 37. See Johnson III, 356 Ark. 534, 157 S.W.3d 151. He also moved for DNA testing under Act 1780. Johnson sought testing of a number of Caucasian hairs, retesting of the partially smoked cigarette, and retesting of some African American hairs. We ordered retesting only on the latter. Id. That decision was made under the mistaken belief that the hairs had not been tested since the 1994 trial. See Johnson IV, 366 Ark. at 394, 235 S.W.3d at 874-75. On remand, the circuit court held that new testing had been performed prior to the 1997 trial. Id. As mentioned above, the hairs were consistent with Johnson’s DNA in a pattern that would occur in one of 720 million African Americans. Id. We affirmed the court’s refusal to conduct further testing. Id. Johnson’s pursuit of federal habeas relief was equally unavailing. See Johnson v. Norris, 537 F.3d 840 (8th Cir. 2008), cert. denied, 555 U.S. 1182, 129 S.Ct. 1334, 173 L.Ed.2d 605 (2009).

The State of Arkansas subsequently scheduled Johnson’s execution for April 20, 2017. Three weeks before his execution date, Johnson sought a recall of our mandate or, alternatively, permission to seek error coram nobis relief. He also requested a stay of execution. In his petition, Johnson again sought testing of the Caucasian hairs. He alleged the testing would show that Ramsey, who died in 1998, was responsible for Heath’s death. We denied his petition.

Days later, Johnson filed the underlying petition for postconviction DNA testing in the circuit court. He claimed the proposed testing might reveal DNA belonging to Ramsey or some other identified man, which could undermine the prosecution’s case or exonerate him. He sought testing of twenty-six pieces of evidence. The evidence can be broadly categorized into three groups: (1) evidence of an alleged sexual assault2 ; (2) evidence...

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4 practice notes
  • 600 S.W.3d 539 (Ark. 2020), CV-19-750, Mills v. State
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 14, 2020
    ...Ark. 360, 533 S.W.3d 578. Failure to meet any one condition precludes scientific testing as a matter of law. Johnson v. State, 2019 Ark. 391, 591 S.W.3d 265. The conditions to be satisfied for relief under the Act for DNA testing require, among other things, that the DNA......
  • Johnson v. State, 022020 ARSC, CR-18-700
    • United States
    • Arkansas Supreme Court of Arkansas
    • February 20, 2020
    ...1780 and the admissibility of proffered testimony regarding the reliability of eyewitness identifications. See Johnson, 2019 Ark. 391, at 8. We affirmed the circuit court's conclusion that the proposed testing could not raise a reasonable probability that Johnson did not......
  • Mills v. State, 051420 ARSC, CV-19-750
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 14, 2020
    ...Ark. 360, 533 S.W.3d 578. Failure to meet any one condition precludes scientific testing as a matter of law. Johnson v. State, 2019 Ark. 391, 591 S.W.3d 265. The conditions to be satisfied for relief under the Act for DNA testing require, among other things, that the ......
  • Makkali v. State, 051420 ARSC, CV-19-825
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 14, 2020
    ...advance the defendant's claim of innocence in light of all the evidence presented to the jury. Johnson v. State, 2019 Ark. 391, 591S.W.3d 265. In addition, under section 16-112-202, the petition must identify specific evidence for testing that was secured as a result of&......
4 cases
  • 600 S.W.3d 539 (Ark. 2020), CV-19-750, Mills v. State
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 14, 2020
    ...Ark. 360, 533 S.W.3d 578. Failure to meet any one condition precludes scientific testing as a matter of law. Johnson v. State, 2019 Ark. 391, 591 S.W.3d 265. The conditions to be satisfied for relief under the Act for DNA testing require, among other things, that the DNA......
  • Johnson v. State, 022020 ARSC, CR-18-700
    • United States
    • Arkansas Supreme Court of Arkansas
    • February 20, 2020
    ...1780 and the admissibility of proffered testimony regarding the reliability of eyewitness identifications. See Johnson, 2019 Ark. 391, at 8. We affirmed the circuit court's conclusion that the proposed testing could not raise a reasonable probability that Johnson did not......
  • Mills v. State, 051420 ARSC, CV-19-750
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 14, 2020
    ...Ark. 360, 533 S.W.3d 578. Failure to meet any one condition precludes scientific testing as a matter of law. Johnson v. State, 2019 Ark. 391, 591 S.W.3d 265. The conditions to be satisfied for relief under the Act for DNA testing require, among other things, that the ......
  • Makkali v. State, 051420 ARSC, CV-19-825
    • United States
    • Arkansas Supreme Court of Arkansas
    • May 14, 2020
    ...advance the defendant's claim of innocence in light of all the evidence presented to the jury. Johnson v. State, 2019 Ark. 391, 591S.W.3d 265. In addition, under section 16-112-202, the petition must identify specific evidence for testing that was secured as a result of&......