Hutcherson v. State

2014 Ark. 326, 438 S.W.3d 909, 2014 Ark. LEXIS 412
CourtSupreme Court of Arkansas
DecidedJuly 31, 2014
DocketCR-13-799
StatusPublished
Cited by3 cases

This text of 2014 Ark. 326 (Hutcherson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hutcherson v. State, 2014 Ark. 326, 438 S.W.3d 909, 2014 Ark. LEXIS 412 (Ark. 2014).

Opinion

PER CURIAM.

_|jln 2000, appellant Willie Hutcherson was found guilty by a jury of four counts of aggravated robbery, three counts of misdemeanor theft of property, and one count of felony theft of property. The facts giving rise to the judgments are as follows: On April 2, 1999, a clerk was robbed at a Conoco gas station on Baseline Road in Little Rock. The clerk testified at appellant’s trial that appellant was the person who had robbed her. On the morning of April 3,1999, a clerk at a Texaco station on Dixon Road was robbed by a man, whom the clerk identified as appellant. On the night of April 3, 1999, a clerk was robbed at a Texaco station on Ninth Street. The clerk identified appellant at trial and in a pretrial photo spread as the robber. On the afternoon of April 5, 1999, a clerk was robbed at a liquor store on Dixon Road. The clerk identified appellant at trial as the person who had robbed him. Appellant was sentenced as a habitual offender to an aggregate term of 2880 months’ imprisonment, which included 60 months’ imprisonment for possession of a firearm by a felon. The Arkansas Court of Appeals affirmed. Hutcherson v. State, 74 Ark.App. 72, 47 S.W.3d 267 (2001).

[ ;>In 2011, appellant filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl.2006). Act 1780, as amended by Act 2250 of 2005, provides that a writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark.Code Ann. § 16-112-103(a)(l) (Repl.2006); Ark.Code Ann. § 16-112-201, Biggs v. State, 2014 Ark. 114, 2014 WL 1096053 (per curiam); Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per curiam). The petition was denied, and appellant appealed to this court. The appeal was dismissed because it was clear that appellant could not prevail if the appeal were allowed to proceed. Hutcherson v. State, 2013 Ark. 104, 2013 WL 841753 (per curiam).

On May 9, 2013, appellant filed in the trial court a motion under section 16 — 112— 202 seeking fingerprint testing, DNA testing, and further examination of a videotape showing the robbery of the Texaco station on Ninth Street. On May 30, 2013, he filed a “motion for new trial,” requesting that the videotape of the robbery of the Texaco station on Ninth Street be tested under section 16-112-208 and again requesting the fingerprint and DNA testing sought in the May 9, 2013 motion. The trial court denied both pleadings in one order on the ground that the two pleadings were successive habeas pleadings and subject to denial under section 16-112-205(d). Appellant brings this appeal.

Section 16-112-205(d) provides that a trial court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition if the issues raised in it have previously been decided by the Arkansas Court of Appeals or the Arkansas Supreme Court in the same case. The generally applicable standard for review |8of an order denying postcon-viction relief dictates that this court does not reverse unless the circuit court’s findings are clearly erroneous, although issues concerning statutory interpretation are reviewed de novo. Cooper v. State, 2013 Ark. 180, 2013 WL 1776437 (per curiam) (citing Echols v. State, 2010 Ark. 417, 373 S.W.3d 892). An abuse of discretion standard applies when the statute allows the trial court to exercise discretion. Cooper, 2013 Ark. 180; see Isom v. State, 2010 Ark. 496, 372 S.W.3d 809. 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. Cooper, 2013 Ark. 180; Pitts v. State, 2011 Ark. 322, 2011 WL 3930396 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Guy v. State, 2011 Ark. 305, 2011 WL 3136699 (per curiam).

In his petition filed under the statute in 2011, appellant contended that testing of the videotape that showed the robbery of the Texaco station on Ninth Street would reveal that he was not the robber. He did not, however, state in the 2011 petition that there was any new technology that would result in a clearer image or otherwise allege what evidence testing the tape would produce.

In his second and third pleadings filed in 2013, appellant contended that, in 2006, the performance of the latest facial-recognition technology was evaluated, and it was found that the technology had improved greatly since its inception. He cited developments in facial-recognition technology by several persons and named several countries that used facial-recognition technology to identify persons. He argued that the new facial-recognition algorithms that had been developed since his trial would aid in identifying the person shown in the videotape robbing |4the Texaco station on Ninth Street. He argues on appeal that the new technology cited in the May 9, 2013 petition is substantially more probative than prior testing, and permission for the testing of the images on the tape should have been ordered under the statute inasmuch as such testing could show that another man who was arrested on the day of the robbery was the actual robber.

Appellant failed to establish that he was entitled to the relief sought under the statute. Act 1780 of 2001, as amended by Act 2250 of 2005, in effect on the date that appellant filed his petition, provides that a writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark.Code Ann. § 16-112-201; King v. State, 2013 Ark. 133, 2013 WL 1279079 (per curiam); Foster v. State, 2013 Ark. 61, 2013 WL 593296 (per curiam); Garner v. State, 2012 Ark. 271, 2012 WL 2149760 (per curiam). Before a circuit court can order testing under the statute, however, there are a number of predicate requirements that must be met. King, 2013 Ark. 133; Foster, 2013 Ark. 61; Douthitt v. State, 366 Ark. 579, 237 S.W.3d 76 (2006) (per curiam); see Ark.Code Ann. § 16-112-202.

One of these predicate requirements is that the petition must be filed in a timely fashion. Ark.Code Ann. § 16-112-202(10). In 2005, the statute was amended to include a rebuttable presumption against timeliness for any petition filed more than thirty-six months after the entry of the judgment of conviction. Id. This presumption against timeliness may be rebutted by showing (1) that the petitioner was or is incompetent, and the incompetence substantially contributed to the delay; (2) that the evidence to be tested is newly discovered; (3) that the motion is not based solely upon the petitioner’s own assertion of innocence, and a denial of the motion |swould result in a manifest injustice; (4) that a new method of technology exists that is substantially more probative than was the testing available at the time of the conviction; or (5) for other good cause. Ark.Code Ann. § 16-112-202(10)(B)(i)-(v).

In the instant case, appellant filed his pleadings in the trial court approximately thirteen years after the judgment-and-commitment order had been entered of record and approximately eight years after section 16-112-202 had been amended to include the 36-month limitation.

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Bluebook (online)
2014 Ark. 326, 438 S.W.3d 909, 2014 Ark. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutcherson-v-state-ark-2014.