                                    Cite as 2017 Ark. 138



                 SUPREME COURT OF ARKANSAS
                                       No.   CR-17-312


                                                 Opinion Delivered: April   19, 2017
STACEY EUGENE JOHNSON
          APPELLANT/PETITIONER

V.

STATE OF ARKANSAS
           APPELLEE/RESPONDENT
                                                 DISSENTING OPINION.



                            RHONDA K. WOOD, Associate Justice

        The General Assembly, elected by the voters in the State of Arkansas, passed a

 statutory scheme that provides for the death penalty as an appropriate sentence for certain

 crimes. Justices of this court have taken an oath to uphold the Constitution and the laws of

 the State of Arkansas without regard to their personal views.          This means the court

 sometimes makes exceedingly difficult decisions without personal consideration to

 ourselves. Simply put, we follow the law.

        The majority of this court has again summarily issued an order in a death penalty case

 without providing any explanation for its decision. It has granted a stay and remanded for a

 second hearing on Stacey Johnson’s motion for postconviction DNA testing pursuant to

 Arkansas Code Annotated section 16-112-201 et seq. (Repl. 2016). It does this despite the

 fact that the circuit court already held a telephonic hearing, made findings, and correctly

 found the defendant failed to meet the requirements of § 16-112-201 et seq.
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       The majority errs for three reasons: (1) Stacey Johnson failed to show that this testing

might prove his actual innocence, (2) his motion is untimely, and (3) he failed to sufficiently

plead chain of custody.

       Arkansas Code Annotated section 16-112-201 permits a defendant to request relief

when “scientific evidence not available at trial establishes the petitioner’s actual innocence.”

Id. The statute also requires that the motion be timely, and the defendant has the burden of

showing the evidence has not been tainted. Id.

       First, Stacey Johnson has failed to make any showing that subsequent testing would

result in proving his actual innocence. Indeed, Johnson has already made a virtually identical

argument to this court, which we unanimously rejected. Johnson v. State, 356 Ark. 534, 157

S.W.3d 151 (2004). In rejecting his argument then we stated, “we do not believe . . . that

testing should be authorized regardless of the slight chance it may yield a favorable result.”

Id. at 536, 157 S.W.3d at 161. Now, on the eve of his execution, the majority provides

Johnson with relief. In addition, we must be mindful of the evidence which supported

Johnson’s conviction, particularly the DNA evidence which linked Stacey Johnson to this

murder, the testimony of the victim’s daughter identifying him as her killer, and Stacey

Johnson’s statements to law-enforcement officers that he had murdered a woman in

Arkansas. The contention that the DNA of Carol Jean Heath’s boyfriend might appear in

her home is expected and does not equate to Stacey Johnson being innocent. Stacey

Johnson was found guilty by two different juries for the April 1, 1993 murder of twenty-

five-year-old Carol Jean Heath.




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       Second, this motion is untimely. The statute provides a rebuttable presumption that

a motion made 36 months after a conviction is untimely. Johnson has not rebutted this

presumption. See Ark. Code Ann. § 16-112-202(B)(i)-(v). The “new” touch DNA and Y-

STR testing that Johnson proposes have been available since at least 2009. See State v.

Reynolds, 926 N.E.2d 315 (Ohio App. 2009). Following the hearing, the trial court found

defendant’s motion untimely. Its finding was correct.

       Third, it is incumbent statutorily that the defendant show “the specific evidence to

be tested is in the possession of the state and has been subject to a chain of custody and

retained under conditions sufficient to ensure that the evidence has not been substituted,

contaminated, tampered with, replaced, or altered in any respect.” Ark. Code Ann. § 16-

112-202(4). The trial court correctly found defendant did not meet his burden.

       Today, this court takes the extraordinary step of breaking from precedent and

ignoring the General Assembly’s statutory requirements for new scientific testing and stays

this execution. With no explanation or instruction, this matter has been remanded to the

trial court for another hearing. Today, our court gives uncertainty to any case ever truly

being final in the Arkansas Supreme Court. Accordingly, I dissent.

       BAKER and WOMACK, JJ., join.




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