Charles Whitfield v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-53

NOT DESIGNATED FOR PUBLICATION

CHARLES WHITFIELD

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered December 15, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR99-1511, HON. WILLARD PROCTOR, JR., JUDGE

AFFIRMED

PER CURIAM

In February 2000, a jury found Charles Whitfield guilty of four counts of rape, one count of attempted rape, five counts of residential burglary, one count of second-degree battery, and one count of exposure to human immunodeficiency virus. Whitfield was sentenced to four terms of life imprisonment in the Arkansas Department of Correction for each of the rape counts and to lesser terms for the other crimes, with the sentences to run concurrently. This court affirmed the judgment. Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357 (2001).

Whitfield unsuccessfully pursued a number of petitions for postconviction relief. See Whitfield v. State, CR 02-1389 (Ark. March 13, 2003) (per curiam); Whitfield v. State, CR 00-1139 (Ark. October 30, 2003) (per curiam); Whitfield v. State, CR 04-300 (Ark. April 29, 2004) (per curiam). In March 2004, Whitfield filed in the trial court a habeas corpus petition under Act 1780 of the 2001 Acts of Arkansas. Whitfield sought new DNA testing of a sample taken from one of the rape victims. The petition was denied. Whitfield now brings this appeal of that order.

Appellant Whitfield argues on appeal that he is the victim of a violation of the right to due process as guaranteed by Brady v. Maryland, 373 U.S. 83 (1963), in that the State withheld evidence concerning the probability that the DNA match between appellant's DNA and the sample taken from one of the rape victims was chance. Yet, appellant does not identify any evidence that the State had concerning a possibility that the actual probability that the match was chance was much greater than one in 600 trillion, as provided at trial by the State's expert. Nor does appellant show that the information, if the State had it, was withheld from the defense. In fact, the evidence that appellant contends shows the probability was actually 1 in 752,000 that the DNA belonged to another male African American was in a letter from appellant's own expert to his trial counsel. As the State notes in its brief, this letter is not found in the record. We further note the letter, which appellant provided in his addendum, indicates that a probability of 1 in 91 million is more realistic than the one appellant asserts the State withheld.

Even had appellant demonstrated a potential Brady violation, and even if the actual probability of a chance match were 1 in 752,000, appellant's argument does not advance his position that the trial court erred in denying appellant's petition because appellant did not state a basis for relief. Act 1780 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense or offenses for which he or she was convicted. See Ark. Code Ann. §§ 16-112-103(a)(1), and 16-112-201--207 (Supp. 2003); see also Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam). A number of predicate requirements must be met under Act 1780 before a circuit court can order that testing be done. See Ark. Code Ann. §§ 16-112-201 to -203 (Supp. 2003).

Under Act 1780, testing is not authorized based on the slight chance it may yield a favorableresult, and DNA testing of evidence is authorized only if testing or retesting can provide materially relevant evidence that will significantly advance the defendant's claim of innocence, in light of all the evidence presented. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004). Appellant does not assert that the additional testing would rule him out as a match, only that it may show the probability of a match was more likely to have been chance. Even if retesting of the DNA were to show a relatively high probability of a chance match as to the one sample, under the particular circumstances of appellant's case, it would not significantly advance a claim of innocence.

The evidence at appellant's trial showed a pattern that each of the four rapes fit. As we found in our opinion affirming appellant's conviction, the DNA evidence was not the sole proof of his identity. Whitfield, 346 Ark. at 47-48, 56 S.W.3d at 359-360. Appellant was detained twice in the area where the rapes occurred at the same time of morning that the rapes occurred. When first apprehended, he was wearing a mask that fit the description given by the victims, and appellant fit the general physical description of the rapist. Considering this evidence, even a relatively high probability of a chance match on one of the samples from only one of the rape victims would not significantly advance appellant's claim of innocence. Appellant clearly was not entitled to relief under Act 1780, and, accordingly, we hold that the trial court did not err in denying the petition.

Affirmed.

Corbin, J., not participating.