FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43CR-00-108]
HONORABLE BARBARA ELMORE, JUDGE
Benjet, The Innocence Project; and Tinsley & Youngdahl,
PLLC, by: Jordan B. Tinsley, for appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
A. WOMACK, Associate Justice.
Martin was convicted of first-degree murder for the killing
of Kimberly Burris. He was sentenced to life imprisonment.
This court affirmed Martin's conviction on direct appeal.
Martin v. State, 346 Ark. 197, 57 S.W.3d 136 (2001).
The present case is an appeal from the Lonoke County Circuit
Court's denial of Martin's 2016 motion requesting DNA
testing pursuant to Arkansas Code Annotated §§
16-112-201 et seq. (Repl. 2016), which permits postconviction
testing of evidence under certain circumstances. We affirm.
disappeared in July 1998. Her body was found in a freezer
located in an abandoned house in Lonoke County in November
1998. Martin was arrested on suspicion of committing the
murder in March 1999 after police secured statements from
Yolanda Day (1) identifying Martin as the murderer and (2)
admitting that she and two others accompanied Martin from the
time of Burris's abduction until her murder. Day
described the location of the abandoned house, the location
of Burris's body within the house, and details about
Burris's attire at the time of her death. Day also
suggested that Martin's motive for the murder could have
been his belief that he had contracted AIDS from Burris.
Martin's direct appeal, we held that Day's accomplice
testimony had been sufficiently corroborated by
circumstantial evidence to support the jury's verdict.
Martin, 346 Ark. at 204-05, 57 S.W.3d at 141. The
State presented evidence confirming that Martin and Burris
had a sexual relationship for several months prior to the
murder, that Burris had AIDS, and that Martin informed his
parole officer of his distress over contracting AIDS.
Id. at 203-04, 57 S.W.3d at 140. Another witness
testified that she saw Martin force a screaming Burris into a
vehicle just before Burris was declared missing. Id.
Other witnesses testified as to Martin's strange behavior
immediately after Burris went missing and in the following
months, including openly speculating that she had been killed
immediately after her disappearance, moving and altering his
appearance, and removing a missing-person flier for Burris he
had previously posted. Id. Burris's grandmother
testified about Martin's similar suspicious
communications with her during the same time frame. She said
that Martin speculated about Burris's location and
claimed that he had seen her alive. Id.
Medical-examiner testimony corroborated Day's description
of Burris's body being "hog-tied, " her mouth
gagged, and her body being placed in a freezer. Additionally,
the examiner testified that the cause of death was either
suffocation from the gag or prior trauma, consistent with
Day's statement. Analysis by the Arkansas State Crime Lab
claimed that hair found at the house was microscopically
similar to Yolanda Day's. Id. We concluded that
this other evidence "clearly established Burris's
murder and tended to connect Martin to its commission."
Id. at 204, 57 S.W.3d at 141.
present action, Martin requests DNA testing pursuant to
Arkansas Code Annotated §§ 16-112-201 et
seq., of (1) the hair ascribed via microscopic
analysis to Day and (2) other evidence including the
victim's clothing and the materials used to bind the
victim's body. He asserts that testing this evidence will
support his contentions that Day's statements were
unreliable and that another suspect was the true murderer.
Our standard for reviewing the denial of postconviction
relief is whether the circuit court's findings were
clearly erroneous. See, e.g., King v.
State, 2013 Ark. 133, at 3.
have made clear in prior interpretations of the
postconviction DNA-testing statutes, the regime does not
permit testing of evidence based on a mere assertion of
innocence or the theoretical possibility that additional
testing might alter the outcome of a trial; the statute was
"not meant to do away with finality in judgments."
Johnson v. State, 356 Ark. 534, 549, 157 S.W.3d 151,
163 (2004). The petitioner must identify how the requested
testing "would establish the actual innocence
of the person in relation to the offense being
challenged." Ark. Code Ann. § 16-112-202(6)(B)
the outset, this requirement is enough to affirm the circuit
court's rejection of Martin's request for DNA testing
of the hair ascribed to Day. Martin seeks to demonstrate that
Day was not at the crime scene to show that the jury relied
on a fabricated account to reach a conviction. This argument
fails for two related reasons. First, even if DNA testing
proved that the hair-microscopy analysis was incorrect and
that the hair did not come from Yolanda Day, this new
revelation would not significantly advance Martin's claim
of actual innocence. Showing that the hair in question came
from a person who had been in the abandoned house at some
time prior to the murder or during the several-month
interlude between the crime and the discovery of the body
would not undermine the other evidence that Day's
testimony was credible. Second, and relatedly, this is
substantially the same inquiry that this court discussed on
direct appeal as outlined above. We held that the State
presented sufficient evidence corroborating Day's
testimony to implicate Martin in Burris's murder and to
justify the jury's verdict. In our discussion of the
multiple incriminating statements corroborating Day's
testimony, the hair microscopy evidence in question warranted
Martin's requests regarding other evidence, the circuit
court's denials are justified based on the presumption
against timeliness in Arkansas Code Annotated §
16-112-202(10)(B). That section states that a presumption
against timeliness applies if the motion for additional
testing is not made within thirty-six months of the date of
conviction. The presumption can be rebutted by a showing:
(i) That the person making a motion under this section was or
is incompetent and the incompetence substantially contributed
to the delay in the motion for a test;
(ii) That the evidence to be tested is newly discovered
(iii) That the motion is not based solely upon the
person's own assertion of innocence and a denial of the
motion would ...