Pankau v. State, CR 12-288

• Decision Date: 18 April 2013
• Docket Number: No. CR 12-288,CR 12-288
• Parties: RODNEY ARLEN PANKAU APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2013 Ark. 162

RODNEY ARLEN PANKAU APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR 12-288

SUPREME COURT OF ARKANSAS

Opinion Delivered April 18, 2013

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. CR-08-798-1]

HONORABLE WILLIAM A. STOREY,

JUDGE

AFFIRMED.

PAUL E. DANIELSON, Justice

Appellant Rodney Arlen Pankau appeals from the circuit court's orders denying and dismissing his petitions for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009) and for writ of habeas corpus based on new scientific evidence pursuant to Arkansas Code Annotated § 16-112-201 (Repl. 2006). His sole point on appeal is that the circuit court erred in denying scientific testing of certain hairs, recovered from the scene of the crimes for which he was convicted, that were not tested prior to his convictions for residential burglary and attempted rape. We affirm.

On September 30, 2008, a judgment and commitment order was entered convicting Pankau of residential burglary and attempted rape and sentencing him to a total term of 540 months' imprisonment. Pankau appealed his convictions and sentence, and the court of appeals affirmed. See Pankau v. State, 2009 Ark. App. 502 (unpublished). Pankau subsequently filed a petition for postconviction relief and a separate petition for writ of habeascorpus.

In his petition for postconviction relief, Pankau asserted that he was denied the effective assistance of counsel when his trial counsel failed to elicit exculpatory evidence that Pankau had not been present at a certain bar on the evening of the burglary and attempted rape. Pankau further contended that trial counsel was ineffective in failing to seek independent testing of a hair, from which the Arkansas State Crime Laboratory was unable to obtain a DNA profile, that was recovered from the crime scene.

Likewise, in his petition for writ of habeas corpus, Pankau asserted that, pursuant to Ark. Code Ann. § 16-112-202 (Repl. 2006), he was entitled to testing of the hair in light of a newly available method of testing that was substantially more probative than that previously available. Pankau claimed that, while the Arkansas State Crime Laboratory was unable to obtain a DNA profile from the hair, a new system of testing existed, which permitted analysis from a smaller amount of DNA. Pankau contended that the proposed testing might produce new material evidence in support of his defense of misidentification, which would raise a reasonable probability that he did not commit the offenses.

Following a hearing on January 11, 2010, the circuit court entered an order on March 3, 2010, directing the Arkansas State Crime Laboratory and any law enforcement custodians of evidence to send the hair to Bode Technology for independent testing. According to the Bode report, dated June 2, 2011, the hair's DNA profile matched Pankau's DNA profile. Another hearing was held on August 12, 2011, and on September 1, 2011, Pankau filed a supplement to his petition for writ of habeas corpus and motion for testing.

In his supplement, Pankau asserted that while the one hair had been tested, "[w]hat was not ascertainable from the Crime Lab report . . . was that there were three (3) hairs sent to the Crime Lab and eventually to the DNA section, but only the one hair [since tested] was tested. The other two were not tested." Pankau moved that the other two hairs be tested, asserting that testing could lead to his exoneration. The State countered Pankau's supplement and petition, stating that testing of the two hairs would not produce new material evidence that would raise a reasonable probability that Pankau did not commit the offenses, as required by Ark. Code Ann. § 16-112-202.

On January 12, 2012, the circuit court entered its two orders denying Pankau relief. In the first order denying Pankau's Rule 37.1 petition, the circuit court concluded that Pankau failed to demonstrate that he was prejudiced as a result of his trial counsel's failure to interview prior to trial the operator of the bar at which Pankau was allegedly present on the evening of the crimes. It further concluded that Pankau had failed to demonstrate that he was prejudiced as a result of his trial counsel not requesting and obtaining independent testing of the hair found at the crime scene. In addition, the circuit court found that Pankau failed to demonstrate (1) that he had received ineffective assistance of counsel; (2) that there was a reasonable probability that but for trial counsel's alleged errors in representation, the result of Pankau's proceedings would have been different; and (3) that his trial counsel's trial preparation fell below an objective standard of reasonableness.

In its separate order, the circuit court denied and dismissed Pankau's petition for writ of habeas corpus and the supplement thereto. The circuit court found that Pankau'ssupplement to the petition was not made in a timely fashion and that the proposed method of testing of the additional hairs contemplated a technique that was in existence at the time of the original testing ordered by the circuit court in 2010. The circuit court further found "[t]hat the proposed testing of the specific evidence at issue, if successful in obtaining more precise results, would fail to raise a reasonable probability that Defendant/Petitioner did not commit the offenses for which he was convicted." Pankau filed a timely notice of appeal and supplemental notice of appeal.

For his sole point on appeal, Pankau argues that the circuit court abused its discretion in denying his request to test the additional hairs found at the crime scene. He contends that as soon as his counsel ascertained that there were additional hairs that had gone untested, he filed a supplement to his habeas corpus petition seeking the testing of the additional hairs. He avers that his defense at trial was that of mistaken identity and that, because a hat was found at the crime scene that contained both his DNA profile and that of an unidentified person, the testing of these previously untested hairs would have provided exculpatory evidence in the form of a DNA profile of someone other than himself. Pankau maintains that these previously untested hairs—not referred to in the Crime Lab's reports or the testimony at trial—had the real potential to provide exonerating evidence. As such, Pankau contends, the failure to test violates the spirit of the DNA habeas statute, and the circuit court's order denying testing of these additional hairs should be reversed.

The State responds that, despite Pankau's claim that the additional hairs to be tested were "newly discovered," they were not, in light of the fact that they were "discovered andavailable" at the time he filed his original petition in 2009. The State further urges that the type of testing sought was also available at the time of his original petition. In the alternative, the State claims, the circuit court did not clearly err in denying Pankau relief because the additional testing would not have established Pankau's actual innocence as required by the statute.

In appeals of postconviction proceedings, we will not reverse a circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. See Misskelley v. State, 2010 Ark. 415. 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. See id. The same...