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Johnson v. State

Supreme Court of Arkansas

December 12, 2019

STACEY EUGENE JOHNSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          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, by: Erin Cassinelli, for appellant.

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

          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.

         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 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.

         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 (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 assault[2]; (2) evidence from the roadside park[3]; and (3) evidence on and around Heath's body.[4] 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 (Johnson V).

         At the 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. Kovera's testimony. It is from this ruling that Johnson now appeals.

         II.

         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 court's 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. Johnson's final point on appeal asks whether the circuit court abused its discretion by refusing to admit Dr. Kovera's testimony. For reasons explained below, we decline to consider this argument.

         Our 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 court's 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.

         A.

         There 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 (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).

         At the 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 conviction involving biological evidence, is suddenly in doubt." District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 62 (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).

         Act 1780 preconditions the availability of DNA testing on, among other things, the petitioner's 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 petitioner's 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.

         Johnson 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 prosecution's 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 Johnson's innocence or a third-party's guilt. It found that Johnson's 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 Johnson's guilt, the court concluded that Johnson failed to satisfy section 16-112-202(8).

         We 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.[5] 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 [petitioner's] 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).

         The 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 court's speculative credibility assessments made in place of the jury. We reject this approach.

         Turning now to our analysis, we fail to see how the presence of another male's DNA on the evidence would raise a reasonable probability of Johnson's innocence. We have previously determined that the Caucasian hairs were not materially relevant to Johnson's 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 Johnson's 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.[6] Even so, the jury still convicted Johnson.

         Even 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 Heath's 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 Ramsey's DNA on much of the evidence found on and around Heath's body and in her home.

         At any rate, the presence of another male's DNA could not significantly advance Johnson's claim of innocence in light of the remaining evidence. It simply cannot explain away the DNA evidence directly linking Johnson to both crime scenes: Johnson's 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 Heath's 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 stepmother's testimony, or his jailhouse bragging about Heath and his plans to see her when he was released.

         What is more, any results from the proposed testing cannot erase the consistencies connecting multiple pieces of evidence that point to Johnson's 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. Johnson's 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 Heath's blood. The partially smoked cigarette with Johnson's DNA was found in the pocket of that shirt. The green shirt was found next to a white shirt, also covered in Heath's blood, that Johnson's 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 Heath's 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 dissent's 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 dissent's assertion that law enforcement officers "manufactured" the chain of custody and "swapp[ed] in" critical evidence. Such undeserved and unsubstantiated attacks undermine the public's trust in the integrity of our criminal justice system.

         In sum, none of the evidence that might result from the proposed testing could advance Johnson's claim of actual innocence or raise a reasonable probability that he did not murder Carol Heath. Because the presence or absence of Johnson's or another male's DNA would not show actual innocence, there is no reason to test for it. We need not consider the remaining claims given Johnson's failure to make this predicate showing. The circuit court's decision denying Johnson's request for postconviction DNA testing is affirmed.

         B.

         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. Kovera's testimony about the reliability of eyewitness identification. Further, our mandate explicitly remanded the petition to the circuit court "for a hearing on petitioner's 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.

         Affirmed.

          Hart and Wynne, JJ., dissent.

          Karen R. Baker, Justice, concurring.

         Because Johnson has failed to demonstrate that the circuit court erred, I concur with the majority opinion.

         "This court does not reverse a denial of postconviction relief unless the circuit court's 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 123.

         Here, the record before us and the applicable standard of review support our holding that Johnson has failed to demonstrate that the circuit court's decision was clearly erroneous. Accordingly, I would affirm the circuit court.

          Josephine Linker Hart, Justice, dissenting.

         The 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 majority's 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.

         I. Introduction

         This is 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 Johnson's is a case in which additional testing is not only appropriate, but necessary. However, the majority denies Johnson's request, concluding that he fails to satisfy the prerequisites for testing prescribed in Ark. Code Ann. § 16-112-202.

         But the 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.

         The two 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 offense[.]

(Emphasis added.) Read together, subdivision 202(6) requires Johnson to "identify" a theory of actual innocence, and subdivision 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.

         There can be no legitimate answer to these questions without an objective assessment of the relevant evidentiary circumstances of Johnson's 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 Johnson's 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 opinion's 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.

         II. Ark. Code Ann. § 16-112-202(6)--Theory of Innocence

         There should be no dispute that Johnson has adequately "identified" a "theory" of innocence, satisfying subdivision 202(6). Johnson's 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 Heath's apartment to return to New Mexico that evening (without having killed Heath or anyone else), and someone else committed the murder.

         It 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 Heath's murder, he was interviewed by a clinical psychologist on March 8, 1994, to confirm he was competent to stand trial. The psychologist's report from that interview is included in the record. The "version of alleged offense" that was elicited from Johnson and included in the psychologist's report (over twenty-five years ago) is as follows:

Mr. Johnson was asked about the alleged offense and he denied killing anyone. He said some little girl picked his picture but "I haven't killed no one." He said he met the victim Carol Heath in January. He claims he and his friends took cocaine to her and they all snorted the drug. He said she "gave us head." He said shortly after he met Ms. Heath he was arrested for possession of a firearm. He was in the DeQueen County jail until he said he was released on April 1, 1993. He said when he was released from jail he intended to leave for New Mexico that day. He said before he left he wanted to "party and we were kicking it." He said he saw Ms. Heath at a party doing drugs. He said he left with her and another couple to go to her house. Once at Mrs. Heath's house the other couple was in another room. He said he was having sexual foreplay with Ms. Heath. He said a man knocked on the door asking the victim for "his stuff." He said he had an altercation with the man and they exchanged words. He left Ms. Heath's house and this individual stayed there. He claims he left at that time and drove to New Mexico. He said after a week in New Mexico "a chick I know told me I had a warrant out for murder." He said he was loaded on drugs at the time but was arrested in New Mexico. He would not sign for extradition and in late 1993 he was finally transferred to DeQueen, Arkansas.

         Subdivision 202(6) requires only that Johnson "identify" a theory of innocence. While the theory stated above is sufficient to satisfy this basic requirement, some of the factual circumstances that would support this theory can be more seamlessly relayed here. There are additional circumstances (also not addressed in the majority opinion) that will need to be supplemented in the subdivision 202(8) analysis.

         First, much of the evidence in this case points to a white perpetrator. It is important to note that an "inch-and-a-half red beard hair" was found in the victim's hand at the first crime scene. The majority heavily relies on the proposition that hairs recovered at the first crime scene (one from just under the victim's left breast, two from the floor near her body, and one from a bedsheet inside her apartment) have since been matched to Johnson's genetic profile through older forms of scientific testing. However, Johnson, a black man with dark hair, obviously did not shed the red beard hair. In fact, there were numerous Caucasian hairs, dissimilar to the those of the victim, found at both the first crime scene (Heath's apartment) and the second crime scene (a wooded area where Heath's purse and several other items were found), which was discovered a few days later.

         For example, a Caucasian hair, dissimilar to those of the victim, was recovered from the blood-soaked towel found on the floor by the victim's head. Another was recovered from the toilet paper found on the floor beneath the victim's genital area. Another was found on the floor beneath the victim's body. Three such hair fragments were recovered from a washcloth found in a paper sack inside the bathroom at Heath's apartment, which was "possibly used by suspect" to wipe down the crime scene, according to the investigator who collected that evidence. Two such hairs were recovered from the green shirt found at the second crime scene. Another was recovered from the white T-shirt found at the second crime scene. Another was recovered from the towel found at the second crime scene.

         Unlike Johnson's hairs, which are of (what the forensic specialists referred to as) "Negroid origin" and have since been matched to his genetic profile through scientific testing, none of the Caucasian hairs identified in the paragraphs above have ever been subjected to scientific testing, despite Johnson's continued requests. The fact that the Caucasian hairs have never been tested is glaring and significant. Particularly so, since Brandon Ramsey, a white male who either was dating the victim at the time of her murder or was recently her ex-boyfriend, is described as having had a "reddish brown beard" at the time of the murder.

         There was testimony at Johnson's postconviction Rule 37 hearing that Ramsey had been going through a divorce and had just lost custody of his children at a temporary hearing on the day of Heath's murder. The day Carol Heath's body was discovered, Ramsey was interviewed by the DeQueen police. During the interview, Ramsey acknowledged that he had seen Heath as recently as the day before she was murdered. However, the record does not reveal any effort to match Ramsey to the aforementioned red beard hair found in the victim's hand (or any of the other hairs), or that any investigative steps were taken to develop Ramsey as a suspect. During the interview, Ramsey also stated, "I had Stacey Johnson arrested recently carrying a weapon. That's what he has been in jail for. He got out of jail recently. I am afraid of him."

         Also relevant here is that the victim was found with bite marks on her breasts. At trial, Johnson sought to call Cordelia Vinyard, Ramsey's ex-wife, to testify as a witness in his defense, but the trial court refused to allow her testimony. However, outside the presence of the jury, Johnson proffered Vinyard's testimony for the record. In her proffered testimony, Vinyard stated that she divorced ...


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