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, by: Erin Cassinelli, for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
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 affirm.
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.
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."
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
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.
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 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. Heath's body was found the next
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.
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.
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.
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.
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).
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).
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
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) evidence from the roadside
park; and (3) evidence on and around
Heath's 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
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.
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.
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.
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).
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).
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.
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).
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
[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).
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
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. 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
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
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
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
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.
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
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.
and Wynne, JJ., dissent.
R. Baker, Justice, concurring.
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 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.
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.
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.
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. §
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,
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.
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.
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.
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). 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.
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
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,
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)
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
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.
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.
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."
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 ...