FROM THE SEVIER COUNTY CIRCUIT COURT [NO. 67CR-93-54],
HONORABLE CHARLES A. YEARGAN, JUDGE
Benjet, pro hac vice, The Innocence Project; and Lassiter &
Cassinelli, Little Rock, by: Erin Cassinelli, for appellant.
Rutledge, Atty Gen., by: Pamela Rumpz, Asst Atty Gen., for
A. WOMACK, Associate Justice
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
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.
Heaths two children were also in the home that night:
Ashley, six years old, and Jonathan, age two. They were in
the bedroom when Heaths 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."
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.
to Heaths murder, Johnson lived in Albuquerque, New Mexico.
He came to DeQueen in January 1993 to attend his fathers
funeral. While in town, Johnson met Ramsey, who was dating
Heath at the time. He followed Ramsey to a party at Heaths
apartment. According to Shawnda Flowers Helms, Heaths
friend, Johnson asked both women if they would date him
and transport drugs for him. They refused and told him they
did not date black men. Soon thereafter, Johnson approached
the women at Ramseys social establishment. He again asked
them to date him and transport drugs. They again refused.
Helms testified that Johnson appeared angry each time they
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."
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 stepmothers 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. Heaths body was found the next
days after Heaths 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.
Johnsons 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 Heaths DNA. Saliva
on the cigarette was consistent with Johnsons DNA, as were
several African American hairs found on and around Heaths
body. This scientific evidence connected Johnson to both
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.
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 Ashleys 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.
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 Heaths body were consistent with
Johnsons 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.
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 Heaths 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 Johnsons DNA in a pattern that would occur in one of
720 million African Americans. Id. We affirmed the
courts refusal to conduct further testing. Id.
Johnsons 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).
State of Arkansas subsequently scheduled Johnsons 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
Heaths death. We denied his petition.
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
prosecutions 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 assault ; (2) evidence from the roadside
park ; and (3) evidence on and around
Heaths body. The court denied
his request, concluding that he failed to meet the predicate
requirements under Act 1780. We stayed the execution and
remanded the case for an evidentiary hearing on the motion
for postconviction DNA testing. See Johnson v.
State, 2017 Ark. 138, 2017 WL 1455044 (Johnson
hearing, Johnson offered evidence on three testing
methodologies: touch DNA, mitochondrial DNA, and Y-STR DNA.
He also proffered the testimony of Dr. Margaret Kovera, an
alleged eyewitness identification expert, regarding the
reliability of eyewitness identifications. The circuit court
again found that Johnson had not satisfied the requirements
for testing under Act 1780. The court also declined to
consider Dr. Koveras testimony. It is from this ruling that
Johnson now appeals.
Johnson submits three issues for our review. He first
contends that the circuit court erroneously held that he
failed to meet the predicate requirements for scientific
testing under Act 1780. Johnson also challenges the circuit
courts conclusion that the proposed testing would not
produce new material evidence sufficient to raise a
reasonable probability of his actual innocence. Given that we
must necessarily consider the second issue in our analysis of
the first, we will examine the issues together. Johnsons
final point on appeal asks whether the circuit court abused
its discretion by refusing to admit Dr. Koveras testimony.
For reasons explained below, we decline to consider this
review today is limited to whether Johnson satisfied the
predicate conditions for scientific testing under Act 1780.
We will not reverse a denial of postconviction DNA testing
under Act 1780 unless the circuit courts findings are
clearly erroneous. See McClinton v. State,
2017 Ark. 360, at 3-4, 533 S.W.3d 578, 580. 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. With this in mind, we
proceed to the merits of this appeal.
is no question that the "advent of DNA technology is one
of the most significant scientific advancements of our
era." Maryland v. King, 569 U.S. 435, 442, 133
S.Ct. 1958, 186 L.Ed.2d 1 (2013). Recognizing the potential
of this technology, the Arkansas General Assembly adopted Act
1780 of 2001, as amended by Act 2250 of 2005, to provide a
remedy for innocent persons who may be exonerated by new
scientific evidence. See Act of Apr. 19, 2001, No.
1780, 2001 Ark. Acts 7737. Act 1780 provides that a writ of
habeas corpus can issue based on new scientific evidence
proving the actual innocence of a wrongfully convicted
person. See Ark. Code Ann. § 16-112-201(a)(1).
same time, the statutory scheme was "not meant to do
away with finality in judgments." Johnson III,
356 Ark. at 549, 157 S.W.3d at 163. As the United States
Supreme Court has explained, "[w]here there is enough
other incriminating evidence and an explanation for the DNA
result, science alone cannot prove a prisoner innocent. The
availability of technologies not available at trial cannot
mean that every criminal conviction, or even every criminal
biological evidence, is suddenly in doubt." District
Attorneys Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 62, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009)
(internal citation omitted). To that end, postconviction
testing is authorized only under specified conditions.
See Ark. Code Ann. § § 16-112-201 to -203. The
petitioner bears the burden of establishing that each
condition is satisfied. See McClinton, 2017
Ark. 360, at 5, 533 S.W.3d at 581. Failure to meet any one
condition precludes scientific testing as a matter of law.
See Hall v. State, 2017 Ark. 77, at 3, 511
S.W.3d 842, 843 (per curiam).
1780 preconditions the availability of DNA testing on, among
other things, the petitioners identification of a theory of
defense that would establish his actual innocence.
See Ark. Code Ann. § 16-112-202(6)(B). The
petitioner must also show that the proposed testing may
produce new material evidence that would support his theory
and raise a reasonable probability that he did not commit the
offense. See Ark. Code Ann. § 16-112-202(8). In
other words, Act 1780 does not permit testing of evidence
based on a mere assertion of innocence or a theoretical
possibility that additional testing might alter the outcome
of a trial. See Martin v. State, 2018 Ark.
176, at 3, 545 S.W.3d 763, 765. We have consequently held
that testing is authorized only if it can provide materially
relevant evidence that will significantly advance the
petitioners claim of innocence in light of all evidence
presented to the jury. See McClinton, 2017
Ark. 360, at 5, 533 S.W.3d at 581.
claims that another man, possibly Branson Ramsey, murdered
Carol Heath. Should the proposed testing reveal DNA belonging
to Ramsey or another male, Johnson claims it would cast
substantial doubt on the prosecutions theory and raise a
reasonable probability of his actual innocence. The circuit
court disagreed. It noted that the proposed testing "may
produce evidence that would support a theoretical defense, as
it would in almost every case." Yet, the court
determined the testing would not produce evidence that would
raise a reasonable probability of Johnsons innocence or a
third-partys guilt. It found that Johnsons defense was
"based solely upon his own assertion of innocence and
his attack upon the credibility of Ashley Heath[.]"
Finding the scientific and testimonial evidence presented at
trial "overwhelmingly pointed" to Johnsons guilt,
the court concluded that Johnson failed to satisfy section
cannot say that these findings were clearly erroneous. We
agree with the circuit court that the proposed testing could
not raise a reasonable probability that Johnson did not
commit the offense. As other courts have done in finding that
a petitioner failed to satisfy an identical "reasonable
probability" requirement, we note the significant
evidence tying Johnson to the murder. See
United States v. Jordan, 594 F.3d 1265, 1268 (10th
Cir. 2010); United States v. Pitera, 675 F.3d 122,
129 (2d Cir. 2012); United States v. Cowley, 814
F.3d 691, 700 (4th Cir. 2016). This is not the same as
considering the sufficiency of the evidence on direct appeal.
Indeed, the "reasonable probability" requirement
may be met when favorable testing results would cause a
"strong case" against the petitioner to
"evaporate." United States v. Fasano, 577
F.3d 572, 578 (5th Cir. 2009). But where, like here, the
"presence or absence of the [petitioners] DNA would not
show actual innocence, there is no reason to test for
it." United States v. Watson, 792 F.3d 1174,
1180 (9th Cir. 2015).
dissent suggests that we reevaluate and reweigh the
credibility of evidence presented at trial. This approach is
flatly inconsistent with the statutory requirements in Act
1780 and dismisses the role of this court on appellate
review. The proposed analysis would require substituting our
judgment for the jury, which is simply not our role. See,
e.g., Smoak v. State, 2011 Ark. 529, at 6, 385
S.W.3d 257, 261. The dissent would effectively relieve
Johnson of the burden to satisfy the conditions for testing
under Act 1780. Conversely, the State would be placed in the
untenable position of overcoming a presumption in favor of
testing. The State would also be required to defend the
evidence at trial against the courts speculative credibility
assessments made in place of the jury. We reject this
now to our analysis, we fail to see how the presence of
another males DNA on the evidence would raise a reasonable
probability of Johnsons innocence. We have previously
determined that the Caucasian hairs were not materially
relevant to Johnsons claim of actual innocence. See
Johnson III, 356 Ark. at 548, 157 S.W.3d at 162. As
we explained in Johnson III, the prosecution
stipulated that Johnson was not the donor of the Caucasian
hairs. Id. The jury was, therefore, aware that hairs
belonging to someone other than Johnson had been found. Yet
the jury still convicted him. Id. This analysis
remains true and is applicable to other evidence. Just as the
jury heard about the Caucasian hairs, it heard Johnsons
theory that Ramsey murdered Heath. And it heard that Johnson
was excluded from the DNA found on the breast swabs and on
the white shirt from the roadside park. Even so, the jury
still convicted Johnson.
assuming the proposed testing revealed DNA belonging to
Ramsey, there is a logical explanation for its presence on
much of the evidence. Many of the twenty-six pieces of
evidence that Johnson wants tested would have been in Heaths
home at some point prior to the crime. Record evidence
established that Ramsey had seen Heath the day before she was
murdered and visited her home multiple times in the months
before her death. It is undisputed that Ramsey had engaged in
a romantic relationship with Heath. Indeed, Shawnda Flowers
Helms testified that Ramsey and Heath were dating at the time
of the murder. There would accordingly be an innocent
explanation for Ramseys DNA on much of the evidence found on
and around Heaths body and in her home.
rate, the presence of another males DNA could not
significantly advance Johnsons claim of innocence in light
of the remaining evidence. It simply cannot explain away the
DNA evidence directly linking Johnson to both crime scenes:
Johnsons saliva on the partially smoked cigarette in the
pocket of the bloody green shirt at the roadside park and his
hairs discovered on and around Heaths body. Nor can it
change that Ashley twice identified him as the black man with
a "girl sounding name" who stood over her bleeding
mother, knife in hand. It would likewise not alter his
confession to New Mexico police, his stepmothers testimony,
or his jailhouse bragging about Heath and his plans to see
her when he was released.
is more, any results from the proposed testing cannot erase
the consistencies connecting multiple pieces of evidence that
point to Johnsons guilt. For example, Ashley stated that the
black man wore a "black hat with something hanging down
in the back," a green shirt, and a sweater. Johnsons
stepmother testified that on the evening of April 1, 1993, he
wore a black "do rag," a green shirt, and a jacket.
She recognized that green shirt as the one found at the
roadside park stained with Heaths blood. The partially
smoked cigarette with Johnsons DNA was found in the pocket
of that shirt. The green shirt was found next to a white
shirt, also covered in Heaths blood, that Johnsons
stepmother recognized as one she had given him when he was
released from jail. Additionally, Ashley stated that the man
told Heath he had just been released from jail. Johnson was
the only African American male released from the Sevier
County jail from March 14, 1993, until after Heaths body was
found. Moreover, his stepmother testified that Johnson
planned to stay that night with a white girl with two young
children. This description fits Heath. It is also consistent
with fellow inmates testimony that Johnson planned to see
Heath when he was released from jail. Heath was found
brutally murdered the next morning.
Finally, we must respond to the dissents unwarranted
suggestion that the denial of testing reflects racial bias by
the State of Arkansas and a majority of this court. Race has
nothing to do with the legal question in this case, which is
whether Johnson satisfied the predicate requirements for
testing under Act 1780. We likewise object to the dissents
assertion that law enforcement officers
"manufactured" the chain of custody and
"swapp[ed] in" critical evidence. Such undeserved
and unsubstantiated attacks undermine the publics trust in
the integrity of our criminal justice system.
sum, none of the evidence that might result from the proposed
testing could advance Johnsons claim of actual innocence or
raise a reasonable probability that he did not murder Carol
Heath. Because the presence or absence of Johnsons or
another males DNA would not show actual innocence, there is
no reason to test for it. We need not consider the remaining
claims given Johnsons failure to make this predicate
showing. The circuit courts decision denying Johnsons
request for postconviction DNA testing is affirmed.
Petitions under Act 1780 are limited to claims related to
scientific testing of evidence. See
McClinton, 2017 Ark. 360, at 4, 533 S.W.3d at 581. A
petitioner cannot bootstrap claims falling outside the
purview of Act 1780, even for the purpose of justifying
entitlement to scientific testing. Id. This was
precisely what Johnson sought to do by offering Dr. Koveras
testimony about the reliability of eyewitness identification.
Further, our mandate explicitly remanded the petition to the
circuit court "for a hearing on petitioners motion for
postconviction DNA testing." Johnson V, 2017
Ark. 138. Anything more would have exceeded the scope of our
mandate. See Lacy v. State, 2018 Ark. 174,
at 6, 545 S.W.3d 746, 750. We accordingly decline to consider
any argument on this matter.
and Wynne, JJ., dissent.
R. Baker, Justice, concurring.
Because Johnson has failed to demonstrate that the circuit
court erred, I concur with the majority opinion.
court does not reverse a denial of postconviction relief
unless the circuit
courts findings are clearly erroneous. Polivka v.
State, 2010 Ark. 152, 362 S.W.3d 918. 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. State v. Barrett, 371 Ark. 91,
95, 263 S.W.3d 542, 545 (2007)." Sandrelli v.
State, 2016 Ark. 103, at 2, 485 S.W.3d 692, 694. This
same standard of review applies when a circuit court denies
DNA testing under Arkansas Code Annotated sections 16-112-201
to -208. Carter v. State, 2015 Ark. 57, 536 S.W.3d
the record before us and the applicable standard of review
support our holding that Johnson has failed to demonstrate
that the circuit courts decision was clearly erroneous.
Accordingly, I would affirm the circuit court.
Linker Hart, Justice, dissenting.
majority aims to blunt the unsettling circumstances
identified herein, generalizing that this dissent levies
"unwarranted suggestion(s)," "undeserved and
unsubstantiated attacks," etc. While I am disappointed
by the majoritys response, I note that the majority does not
attempt to demonstrate the alleged falsity or illegitimacy of
even a single factual representation contained in this
opinion. Instead of relying on hyperbole and a hand wave,
this opinion supports its conclusions by simply citing to the
record. The record can speak for itself.
a postconviction request for scientific testing in a
death-penalty case. At this point in time, Stacey Johnson is
not asking to be released from prison. Presently, he is not
even asking for a new trial. All he is asking for is modern
scientific testing on the evidence used to convict
him for the 1993 murder of Carol Heath. Act 1780, now
codified at Ark. Code Ann. § § 16-112-201 to -208, provides
for such testing, and Johnsons is a case in which additional
testing is not only appropriate, but necessary. However, the
majority denies Johnsons request, concluding that he fails
to satisfy the prerequisites for testing prescribed in Ark.
Code Ann. § 16-112-202.
majority is only able to support its conclusion by contending
that the case against Johnson was simply insurmountable, and
any proposed testing, therefore, would not make any
difference. The majority has essentially treated this matter
as if it were a sufficiency-of-the-evidence appeal directly
from a conviction, in which the appellate court considers
only the evidence that supports the guilty verdict
and reviews that evidence in the light most
favorable to the prosecution. See, e.g.,
Hale v. State, 343 Ark. 62, 74, 31 S.W.3d 850, 857
(2000). Such is not the matter currently before this court.
specific prerequisites for testing at issue here are found in
Ark. Code Ann. § 16-112-202(6) and 202(8). Subdivision 202(6)
requires the petition for scientific testing to
"identif[y] a theory of defense that ...
[w]ould establish the actual innocence of the person in
relation to the offense being challenged[.]" (Emphasis
added.) Subdivision 202(8) requires the petition to show that
[t]he proposed testing of the specific evidence may
produce new material evidence that would ...
[s]upport the theory of defense described in
subdivision (6) (and) ... [r]aise a reasonable
probability that the person ... did not commit the
(Emphasis added.) Read together, subdivision 202(6) requires
Johnson to "identify" a theory of actual innocence,
202(8) requires Johnson to show how the testing
"may" produce new evidence that would
"support" that theory and show a "reasonable
probability" that he did not kill Carol Heath.
can be no legitimate answer to these questions without an
objective assessment of the relevant evidentiary
circumstances of Johnsons case, including the reliability of
the evidence used to convict him. There is no other way this
court could determine whether the proposed testing may show a
"reasonable probability" of Johnsons innocence.
Instead, the majority selectively quotes from disputed
testimony by State witnesses and altogether ignores glaring
issues related to the investigation and prosecution of this
crime, ultimately concluding that Johnson fails to satisfy
subdivisions 202(6) and 202(8). But as set forth below, in
this particular case, there is reason to question the
reliability of much of the evidence and testimony used
against Johnson. Additionally, there are numerous highly
probative evidentiary items that inexplicably have never been
subjected to scientific testing, but obviously need to be.
Our inquiry necessarily must account for such circumstances.
Accordingly, the majority opinions explanation of the
evidence and the investigation of this crime will need to be
supplemented at various points in this opinion. Even if a
citizen is under a death sentence, the least he deserves is a
complete and objective characterization of his case. Both
sides of the issues must be acknowledged. The finality of the
penalty Johnson is set to receive cannot be understated, and
as Justice Wynne observed at oral argument in this case,
"we have to get this right." A fair analysis shows
that the requirements for postconviction scientific testing
have been satisfied.
Ark. Code Ann. § 16-112-202(6) --Theory of
should be no dispute that Johnson has adequately
"identified" a "theory" of innocence,
satisfying subdivision 202(6). Johnsons theory is as
follows: while he and Carol Heath had engaged in consensual
sexual acts both before and on the night of the murder, he
did not kill her; instead, Johnson left Heaths apartment to
return to New Mexico that evening (without having killed
Heath or anyone else), and someone else committed the murder.
should be noted that this is not some novel claim Johnson
conjured up at the last minute to delay his death sentence.
After Johnson was arrested for Heaths murder, he was
interviewed by a clinical psychologist on March 8, 1994, to
confirm he was competent to stand trial. The psychologists
report from that interview is included in the record. The
"version of alleged offense" that was elicited ...