Sanders M. Carter v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 19, 2004

SANDERS M. CARTER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-148

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 1987-63, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of rape, aggravated robbery with a deadly weapon, and burglary and was sentenced as a habitual offender to life plus forty years' imprisonment. We affirmed on appeal. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). In 1989, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied relief, and we affirmed. Carter v. State, CR 87-209 (Ark. Oct. 16, 1989). In 2001, appellant filed a petition for a writ of habeas corpus seeking additional scientific testing under Act 1780 of 2001, codified as Ark. Code Ann. § 16-112-201 to -207. Following the appointment of counsel and a hearing, the trial court denied appellant's petition because the evidence in question had either been destroyed or could not be located. From that order comes this appeal.

Act 1780 was passed by the General Assembly in response to nation-wide concerns that innocent persons were being imprisoned and even executed for crimes that they did not commit. Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam). The act provides that a writ of habeas corpus could issue based upon new scientific evidence proving a person is actually innocent of the offense or offenses for which they were convicted. Ark. Code Ann. §§ 16-112-103(a)(1), and 16-12-201 to -207.

Under Act 1780, the petitioner must claim that (1) the scientific evidence was not available at trial or (2) the scientific predicate for the claim could not have been previously discovered through due diligence, and the facts when viewed in light of the evidence as a whole, establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense. Ark. Code Ann. § 16-112-201(a). Appellant has a duty to present a prima facie case that (1) identity was an issue in the trial and (2) the chain of custody was not broken. Ark. Code Ann. § 16-112-202(b). A circuit court shall order testing if a prima facie case is established, the testing has the scientific potential to produce new noncumulative evidence materially relevant to the defendant's claim of actual innocence, and the testing employs a scientific method that is generally accepted within the relevant scientific community. Ark. Code Ann. § 16-112-202(c).

Appellant's claim fails because he cannot show that the chain of custody was not broken, as required by § 16-112-202(b)(2). At the evidentiary hearing, Detective Keith Cockrell, Little Rock Police Department, testified that the evidence that was originally collected in appellant's case included: a sexual assault kit, a pink sheet, a white nightgown, a brown billfold with assorted papers, a butcher knife, and two pieces of window molding. According to Cockrell, all items were taken from the police property room to the crime lab for testing and then returned to the property room. Cockrell testified that he and the property room supervisor spent two days looking for the evidence, but they were unsuccessful. According to Cockrell, the assault kit was destroyed in August 1989, the molding in July 1994, and there was no date for any destruction of the remaining items. Edward Vollman, a forensic biologist with the crime lab, testified that he was familiar with appellant's case as he had examined the physical evidence. He testified that in 1987, DNA testing was not available at the crime lab. According to Vollman, after items are tested, the physical evidence is sealed and returned to the submitting agency, which in this case was the Little Rock Police Department. Vollman testified that all items were returned and that the lab did not have any evidence from the case. He testified that the Central Evidence Section of the crime lab does annual, sometimes semiannual, evidence inventory and that any remaining evidence found is then returned to the submitting agency. According to Vollman, after two searches for the evidence, none was found.

Because the evidence in question no longer exists or cannot be located, appellant has failed to present a prima facie case that the chain of custody was not broken, as required by §16-112-202(b)(2). Accordingly, we affirm the ruling below.

Affirmed.