King v. StateKing v. State
MOTION DENIED; APPEAL DISMISSED.
PER CURIAM
In 1998, appellant Elgin King was found guilty of first-degree murder and sentenced to 720 months’ imprisonment. We affirmed. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). In 2011, he filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001. The trial court denied the petition, and appellant has lodged an appeal in this court. He now seeks to supplement the record on appeal.
We deny the motion because it is not in essence a request to add to the record on appeal; rather, it is intended to bolster the claims raised in the petition that was denied by the trial court. Information and arguments that were not raised in the petition that was ruled on by the court cannot be added to the record on appeal. This court has consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside the record below. Darrough v. State, 2013 Ark. 28 (per curiam); Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per curiam); Smith v. Brownlee, 2010 Ark. 266 (per curiam); McLeod v. Mabry, 206 Ark. 618, 177 S.W.2d 46 (1944).
We also dismiss the appeal because it is clear that appellant could not prevail if the appeal were allowed to proceed. An appeal from an order that denied a petition for postconviction relief, including a petition under Act 1780 of 2001, will not be allowed to proceed where it is clear that an appellant could not prevail. See Foster v. State, 2013 Ark. 61; Garner v. State, 2012 Ark. 271 (per curiam); Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per curiam) (citing Douthitt v. State, 366 Ark. 579, 237 S.W.3d 76 (2006) (per curiam)).
Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at
Appellant contended in his petition that DNA and fingerprint testing should be performed on a rubber mask that was introduced into evidence at his trial. Witness Vernon Scott testified that appellant was wearing the mask when appellant and another man approached the victim inside a house and bound the victim in duct tape. The victim was then taken outside, and Scott heard multiple gunshots. The victim was not seen again until his body was found in a silo. He had died of multiple gunshot wounds, and the rubber mask was
The trial court held that the petition should be denied because, even if the testing were conducted and appellant’s DNA and fingerprints were not found on the mask, his actual innocence would not be established in light of the evidence as a whole. No hearing was held on the petition, but
Appellant also argued that he was entitled to relief on the grounds that there were errors made by the court at trial and he was not afforded effective assistance of counsel at trial.
The petition was also subject to dismissal on the basis that it was not timely filed. The act requires that a motion for relief must be made in a timely fashion. Before a circuit court can order testing under this statute, there are a number of predicate requirements that must be met. Douthitt, 366 Ark. at 580, 237 S.W.3d at 77;
We have held that DNA testing of evidence is authorized under this statute 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 to the jury. Johnson v. State, 356 Ark. 534, 546, 157 S.W.3d 151, 161 (2004). Evidence does not have to completely exonerate the defendant in order to be “materially relevant,” but it must tend to significantly
Appellant’s petition was filed approximately thirteen years after the judgment of conviction was entered against him and ten years after Act 1780 was enacted. In his petition in the trial court, appellant did not attempt to rebut the presumption against timeliness except by suggesting that various technologies were now available to test the mask and link it to another person. Appellant did not contend that he was incompetent within the meaning of
DNA evidence has been admissible in Arkansas since 1991. Aaron v. State, 2010 Ark. 249 (citing Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357 (2001)). Appellant’s petition sought testing of the mask using the “SNP-Snips procedures,” “Short Tandem Repeats—known scientifically as ‘micro-satel-lites [sic],‘” and mitochondrial-DNA testing. Appellant was convicted in 1998, and he did not show that the testing that he now seeks was unavailable at that time. See Mitchael, 2012 Ark. 256 (citing Howard v. State, 2012 Ark. 177, 403 S.W.3d 38 (noting that mitochondrial-DNA testing had been performed prior to Howard‘s 1999 trial)); see generally Hamm v. Office of Child Support Enforcement, 336 Ark. 391, 985 S.W.2d 742 (1999) (noting that short-tandem-repeats had been tested in that case); United States v. Beverly, 369 F.3d 516 (2004) (noting that mtDNA-testing that could observe single-nucleotide polymorphisms “has been used extensively for some time in FBI labs, as well as state and private crime labs“). With respect to the fingerprint evidence, appellant said that laser and
Motion denied; appeal dismissed.
Elgin King, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.