Johnny A. Rucker v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 16, 2004

JOHNNY A. RUCKER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-145

APPEAL FROM THE CIRCUIT COURT OF CLARK COUNTY, CR 93-12, HONORABLE JOHN ALEXANDER THOMAS, JUDGE

PETITION FOR REHEARING DENIED

Per Curiam

Appellant is serving a sentence of life imprisonment without parole for committing capital murder. See Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). He appealed the denial of his petition for writ of habeas corpus pursuant to Act 1780 of 2001 without a hearing. On June 10, 2004, we reversed and remanded to the circuit court for a hearing on the petition. Rucker v. State, CR 02-145 (Ark. June 10, 2004)(unpublished). The State of Arkansas now petitions for rehearing. Rule 2-3(g) of the Rules of the Arkansas Supreme Court provides that a party may file a petition for rehearing to call attention to specific errors of law or fact which an is thought to contain. "Counsel are expected to argue the case fully in the original briefs, and the brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the Court." Ark. Sup. Ct. R. 2-3(g) (2004).

The State, however, again argues that the fingerprints appellant seeks to have tested are unidentifiable and cannot be matched to any prints in the Automated Fingerprint Identification System (AFIS) database. The State again urges that appellant failed to show that AFIS can take previously unidentifiable prints and now identify them, or at least do so in this case to an extent that testing would provide new noncumulative evidence materially relevant to appellant's assertion of actual innocence. We considered these arguments and addressed it in our opinion.

As we concluded and stated, the circuit court clearly erred in not holding a hearing on appellant's petition. Despite the circuit court's conclusion otherwise, the files and records did not conclusively show that appellant failed to meet the Act's predicate requirement of presenting a prima facie case that identity was an issue at trial, and that the evidence to be tested had been subject to a proper chain of custody. See Ark. Code Ann. § 16-112-202(b). Further, a hearing will illuminate whether testing would provide new noncumulative, materially relevant evidence in light of our opinion in Johnson v. State, CR 02-1362 (Ark. April 1, 2004), because it will allow for the presentation of more thorough evidence on the fingerprints at issue in this case and on the technology and capabilities of AFIS.

We did not conclude in our opinion that the circuit court erred in refusing to order testing. Indeed, the hearing may lead the circuit court to conclude that appellant cannot meet Act 1780's requirements such that testing should be ordered. But, the files and records in this case do not conclusively show that no relief was warranted as the circuit court found in denying appellant's petition without a hearing. Accordingly, the petition for rehearing is denied.

Petition denied.