Pitts v. State
| Decision Date | 08 September 2011 |
| Docket Number | No. CR 09-813,CR 09-813 |
| Parties | EUGENE ISAAC PITTS APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Supreme Court |
Appellant Eugene Isaac Pitts appeals from a Pulaski County Circuit Court order denying his petition for habeas corpus pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005, codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2006). On appeal, appellant argues (1) that his due-process rights were violated when the Arkansas State Crime Laboratory (ASCL) failed to conduct alternative DNA testing of a hair fragment after determining that nuclear DNA testing results were inconclusive; (2) that his due-process rights were violated when the ASCL failed to discharge its affirmative duty to preserve potentially exculpatory evidence; (3) that the circuit court's denial of his habeas petition was erroneous. We find no error and affirm.
Appellant was convicted of capital murder and kidnapping in 1979 and sentenced to life in prison without parole. We affirmed. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981). In 2001, appellant filed a pro se petition for writ of habeas corpus alleging his actualinnocence and requesting relief pursuant to Arkansas Code Annotated section 16-112-201. An amended petition was filed by his appointed counsel on November 12, 2002. In that amended petition, appellant noted that a negroid hair recovered from the victim's clothing had been used as evidence against him because it was "microscopically" similar to appellant's hair and that the validity of microscopic hair analysis had been discredited by the advent of DNA testing. He requested that the hair be retested using current DNA testing methods to determine if it matched appellant's hair. The circuit court entered an order on December 17, 2002, finding that appellant was entitled to DNA testing on the hair and ordering the ASCL to conduct DNA testing of the hair under "generally accepted scientific conditions."
The ASCL proceeded with testing of the hair fragments recovered from the original investigation. Hair fragments originally identified as Q13 were sent to the ASCL for testing. It determined that one hair fragment contained a root suitable for nuclear DNA testing, isolated that fragment, and relabeled it Q13A. The ASCL performed a nuclear DNA test on Q13A but was unable to obtain a DNA profile from the sample. It also isolated another hair fragment without a root that was possibly suitable for mitochondrial DNA testing that was relabeled Q13B. Due to the fact that the ASCL did not have the capability to perform mitochondrial DNA testing, it sent Q13B to the Federal Bureau of Investigation, which found only Caucasian hairs not suitable for testing on the sample. After it performed the nuclear DNA test, the ASCL allegedly returned Q13A to its custodian, the Office of the Clerk of the Arkansas Supreme Court, which has no record of its return. Q13A has been missing since that time.
On November 17, 2008, appellant filed another petition for writ of habeas corpuspursuant to Arkansas Code Annotated sections 16-122-201 to -208 alleging actual innocence and citing his inability to have further testing, specifically mitochondrial DNA testing, performed on the missing Q13A hair fragment. The circuit court entered an order on April 15, 2009, finding that all relief available to appellant under the statute had been granted, and he was entitled to no further relief. Specifically, the court noted that it had held three hearings on the matter of the missing hair fragment, after which it had determined that reasonable efforts had been made to locate the missing evidence but that the evidence was irretrievably lost. The circuit court found that pursuant to Arkansas Code Annotated section 16-112-208(b), where the results of court-ordered DNA testing were inconclusive, the court could either order additional testing or deny further relief. The circuit court found that it was "bereft of any actions, orders or procedures that could be taken that would result in the production of the slides [and was] compelled to deny any further relief." The court noted that, if the evidence was found, it would order that further testing be conducted on the specimen. Appellant filed a timely notice of appeal from that order.
Appellant's initial arguments on appeal both involve constitutional issues. First, he asserts that his constitutionally protected due-process rights were violated when the ASCL failed to conduct alternative mitochondrial DNA testing of Q13A after determining that nuclear DNA testing results were inconclusive. He claims that Arkansas Code Annotated sections 16-122-201 to -208 create a constitutionally protected liberty interest on the part of convicted defendants to have evidence that was introduced against them at trial retested using technology not available at the time of trial. Second, he claims that his due-process rights were violated when the ASCL failed to discharge its affirmative duty to preserve potentiallyexculpatory evidence. Neither of these constitutional arguments is preserved for our review because the trial court never ruled on either issue.
Our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be considered because the trial court never had the opportunity to rule on them. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007). Where the abstract does not...
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