Pankau v. StatePankau v. State
PAUL E. DANIELSON, Justice
Appellant Rodney Arlen Pankau appeals from the circuit court‘s orders denying and dismissing his petitions for postconviction relief pursuant to
On September 30, 2008, a judgment and commitment order was entered convicting Pankau of residential burglary and attempted rape and sentencing him to a total term of 540 months’ imprisonment. Pankau appealed his convictions and sеntence, and the court of appeals affirmed. See Pankau v. State, 2009 Ark. App. 502 (unpublished). Pankau subsequently filed a petition for postconviction relief and a separate petition for writ of habeas
In his petition for postconviction relief, Pankau asserted that he was denied the effective assistance of counsel when his trial counsel failed to elicit exculpatory evidence that Pankau had not been present at a certain bar on the evening of the burglary and attemptеd rape. Pankau further contended that trial counsel was ineffective in failing to seek independent testing of a hair, from which the Arkansas State Crime Laboratory was unable to obtain a DNA profile, that was recovered from the crime scene.
Likewise, in his petition for writ of habeas corpus, Pankau asserted that, pursuant to
Following a hearing on January 11, 2010, the circuit court entered an order on March 3, 2010, directing the Arkansas Statе Crime Laboratory and any law enforcement custodians of evidence to send the hair to Bode Technology for independent testing. According to the Bode report, dated June 2, 2011, the hair‘s DNA profile matched Pankau‘s DNA profile. Another hearing was held on August 12, 2011, and on September 1, 2011, Pankau filed a
In his supplement, Pankau asserted that while the one hair had been tested, “[w]hat was not ascertainable from the Crime Lab report . . . was that there were three (3) hairs sent to the Crime Lab and eventually to the DNA section, but only the one hair [since tested] was tested. The other two were not tested.” Pankau moved that the other two hairs be tested, asserting that testing cоuld lead to his exoneration. The State countered Pankau‘s supplement and petition, stating that testing of the two hairs would not produce new material evidence that would raise a reasonable probability that Pankau did not commit the оffenses, as required by
On January 12, 2012, the circuit court entered its two orders denying Pankau relief. In the first order denying Pankau‘s
In its separate order, the circuit court denied and dismissed Pankau‘s petition for writ of habeas corpus and the supplement thereto. The circuit court found that Pankau‘s
For his sole point on appeal, Pankau argues that the circuit court abused its discretion in denying his request to test the additional hairs found at the crime scene. He contеnds that as soon as his counsel ascertained that there were additional hairs that had gone untested, he filed a supplement to his habeas corpus petition seeking the testing of the additional hairs. He avers that his defense at trial was that of mistaken identity and that, because a hat was found at the crime scene that contained both his DNA profile and that of an unidentified person, the testing of these previously untested hairs would have provided exculpatory evidence in the form оf a DNA profile of someone other than himself. Pankau maintains that these previously untested hairs—not referred to in the Crime Lab‘s reports or the testimony at trial—had the real potential to provide exonerating evidence. As such, Pankau contends, the failure to test violates the spirit of the DNA habeas statute, and the circuit court‘s order denying testing of these additional hairs should be reversed.
The State responds that, despite Pankau‘s claim that the additional hairs to be tested were “newly discovered,” they were not, in light of the fact that they were “discovered and
In appeals of postconviction рroceedings, we will not reverse a circuit court‘s decision granting or denying postconviction relief unless it is clearly erroneous. See Misskelley v. State, 2010 Ark. 415. 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. See id. The same standard of review applies when a circuit court denies DNA testing under
Act 1780 of 2001, as amended by Act 2250 of 2005 and codified аt
The instant record reflects that the crimes for which Pankau was convicted occurred in the home of the victim, A.P. When police responded to A.P.‘s сall to 911, they discovered a baseball cap containing the logo of “Crossland Construction Company,” a company for which Pankau worked. When tape lifts from the cap were tested for DNA, genetic material from two individuals was discovered, with the major component of the profile attributable to Pankau.1 While a hair from A.P.‘s bed was discovered and submitted for testing, no DNA profile could be obtained from it.
It was this hair from the bed for which Pankau requested testing in his original section 16-112-201 petition fоr writ of habeas corpus and for which the circuit court ordered testing in 2010. However, after the results of that test came back, finding that the DNA profile from the hair matched Pankau‘s DNA profile, Pankau sought additional testing on two other hairs that had been сollected and reported by the Arkansas State Crime Laboratory, but had not been previously tested. Pankau asserted in his supplemental petition that “if a result is
Even assuming that the additional hairs could be tested and would result in the identification of someone other than Pankau, the new evidence must raise a reasonable probability that Pankau did not commit the offense. Sеe
Affirmed.
HART, J., concurs.
Jeff Rosenzweig, for appellant.
Dustin McDaniel, Att‘y Gen., by: Karen Virginia Wallace, Ass‘t Att‘y Gen., for appellee.
In this one-issue appeal, Rodney Arlen Pankau argues that the trial court abused its discretion in denying the DNA testing of hairs recovered from the crime scene. After a jury found him guilty of residential burglary and attempted rape, Pankau petitioned for a writ of habeas corpus pursuant to
Act 1780 of 2001 established a mechanism for using posttrial scientific testing to establish the actual innocence of a wrongly convicted person. But rather thаn sanctioning an open-ended fishing expedition, the statute requires that petitions for scientific testing be granted only if the movant “identifies a theory of defense” that would “establish the actual