# Johnson v. State

> Supreme Court of Arkansas · January 21, 1992 · 308 Ark. 7

URL: https://www.frixlaw.com/law-library/cases/9675829

## Case

- **Full name:** David JOHNSON v. STATE of Arkansas
- **Court:** Supreme Court of Arkansas
- **Decided:** January 21, 1992
- **Citations:** 308 Ark. 7; 823 S.W.2d 800; 1992 Ark. LEXIS 30
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Dudley, Brown
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9675829

## Opinion text

Robert L. Brown, Justice, concurring. Associate Justice Sherman Minton of the United States Supreme Court observed nearly forty years ago: “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953). The Court has ratified Justice Minton’s view repeatedly over the years. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); United States v. Hasting, 461 U.S. 499, 508-509 (1983); Bruton v. United States, 391 U.S. 123, 135 (1968). I subscribe to the maxim, and for that reason I concur in the majority’s opinion.
Nevertheless, there were errors in this case that are troubling. First, the prosecutor filed an erroneous charge against the appellant that failed to identify the correct murder weapon or cause of death. This was not corrected until the day of the trial and only after the jury panel had been advised of the fallacious charge. Even at that time, it was erroneously corrected by the court and not by the prosecutor’s amendment. Secondly, the prosecutor failed to provide the defense with the name of a key expert witness, Scott Sherrill, a forensic serologist, who was the only state witness to testify to human blood on the appellant’s tennis shoes. And, thirdly, the trial court erroneously limited the hearsay testimony of a psychologist testifying during the penalty phase on mitigating circumstances.
In reviewing potential prejudice to the appellant resulting from these errors, there is no question but that the defense counsel knew the correct instrument of death and prepared his defense on that basis. A closer question is presented by the serologist’s surprise testimony that confirmed the presence of human blood on the appellant’s tennis shoes. It is conceivable that Sherrill’s testimony affected the appellant’s case to some extent due to his counsel’s inability to prepare adequately. By the same token, the other evidence against the appellant in this case was considerable. I cannot say that the prejudice is clearcut or conclusive from my review of the record. See Hughes v. State, supra.
Our rules are clear that we hold ourselves to a high standard in cases where death or life imprisonment is involved. See Ark. Sup. Ct. R. 11 (f). Undoubtedly, the state does also in these cases. Failure to have a correct charge filed on the day of the trial or to provide defense counsel with the name of an expert witness before trial, though not prejudicial under these facts, falls somewhat short of this standard.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9675829. Public record. Not legal advice.