James Cooper, Ulonzo Gordon, and Jeremy Moten v. State of Arkansas
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ARKANSAS SUPREME COURT
No. CR 061151
Opinion Delivered
JAMES COOPER, ULONZO GORDON,
and JEREMY MOTEN
Appellants
v.
STATE OF ARKANSAS
Appellee
October 25, 2007
PRO SE MOTIONS TO FILE
SUPPLEMENTAL ABSTRACT AND
ADDENDUM WITH REPLY BRIEF;
FOR ORAL ARGUMENTS; AND FOR
APPOINTMENT OF COUNSEL FOR
ORAL ARGUMENTS [CIRCUIT
COURT OF CRITTENDEN COUNTY,
CR 95149, HON. CHARLES DAVID
BURNETT, JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 1996, appellant James Cooper was found guilty by a jury of capital murder and sentenced
to life imprisonment without parole. This court affirmed. Cooper v. State, 324 Ark. 135, 919
S.W.2d 205 (1996). Subsequently, appellant sought relief in the trial court pursuant to Ark. R. Crim.
P. 37.1. This court affirmed denial of the petition. Cooper v. State, CR 96880 (Ark. Sept. 18, 1997)
(per curiam).
In 2002, appellant filed in the trial court a pro se petition for relief pursuant to Act 1780 of
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2001, codified as Ark. Code Ann. §§ 16112201–207 (Supp. 2001). The petition also listed Ulonzo
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Appellant filed his petition prior to the enactment of Act 2250 of 2005, with an effective
date of August 12, 2005, that amended relevant portions of the statute. As a result, appellant’s
petition for writ of habeas corpus remained subject to the requirements in effect at the time
appellant filed his petition.
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Gordon and Jeremy Moten, his codefendants at trial, as petitioners. The trial court denied the
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petition after a hearing, and appellant timely filed a pro se notice of appeal on behalf of himself.
However, when the appeal was lodged, the record named all three men as appellants in this court.
We first note that appellant claims that he also included Gordon and Moten in the notice of
appeal filed in the trial court based upon the authority of a power of attorney purportedly executed
by Gordon and Moten, and is legally able to act on their behalf as a result. The State argues that
appellant was engaged in the unauthorized practice of law in this appeal by purportedly attempting
to represent Gordon and Moten, and by conducting the appeal on their behalf. However, we need
not reach that issue as Gordon and Moten have not perfected their appeal.
In civil matters, such as a petition for writ of habeas corpus, a notice of appeal must be filed
by each partyappellant, either jointly or severally. Ark. R. App. P.–Civ. 3(c) and (e). Here, appellant
timely filed a pro se notice of appeal in the trial court solely on behalf of himself, which he had the
right to do as a pro se litigant, as only his name appeared on the notice. As Gordon and Moten did
not file a notice of appeal either individually or jointly with appellant’s, the notice filed in this matter
preserved only appellant’s right to an appeal of the trial court’s order denying the Act 1780 petition
for writ of habeas corpus. Therefore, Gordon and Moten have failed to obtain appellate jurisdiction
with regard to an appeal of that order.
Now before us are appellant’s pro se motions to file a supplemental abstract and addendum
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The Act 1780 petition was signed only by appellant. At the hearing on the petition, an
attorney purported to represent all three men as petitioners, apparently with the trial court’s
acquiescence.
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Pursuant to Ark. R. App. P.–Civ. 4(a), a notice of appeal that is filed prior to entry of the
order from which the appeal will be taken “shall be treated as filed on the day after” the order is
entered. Here, appellant filed the notice of appeal on August 16, 2006, and the trial court entered
the order denying the petition for writ of habeas corpus on August 25, 2006. Therefore, the
notice of appeal was deemed timely filed on August 26, 2006.
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with the reply brief, for oral argument, and for appointment of counsel for oral argument. We need
not consider the motions as it is apparent that appellant could not prevail in this appeal if it were
permitted to go forward. Accordingly, we dismiss the appeal and hold the motions moot. This court
has consistently held that an appeal from an order that denied a petition for postconviction relief will
not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State,
338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13
(1996) (per curiam).
Act 1780 of 2001 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. Ark. Code Ann. §16112103(a)(1) (Supp. 2001); sections 16112201–207; Echols v.
State, 350 Ark. 42, 84 S.W.3d 424 (2002) (per curiam).
Act 1780 testing is not authorized based on the slightest chance that it may yield a favorable
result. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004). Scientific 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. Id.
There are a number of predicate requirements that must be met under the act before a circuit
court can order that testing be done. Sections 16112201 to 203. Initially, the act requires a prima
facie showing of identity as an issue at trial when a petitioner contends that he is entitled to posttrial
scientific testing on the ground of actual innocence. Section 16112202(b)(1); Graham v. State, 358
Ark. 296, 188 S.W.3d 893 (2004) (per curiam).
At trial, the defense of appellant, Gordon and Moten revolved around the contention that the
victim, or another person, Tony Johnson, initiated the shooting near the intersection of 31st and S.L.
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Henry Streets in West Memphis, Arkansas. This location was approximately 130 yards from an open
field behind a housing project. The shootout was later concluded on the field where the victim was
eventually shot. Bullets and casings were recovered at both locations. Only the evidence collected
at the scene of the shooting was processed by the Arkansas State Crime Lab.
Appellant’s primary defense at trial was that he had no knowledge that Gordon and Moten
intended to shoot the victim. Gordon’s and Moten’s defense was that the victim was chasing them
after the initial exchange of gunfire at the street intersection, and that they were acting in selfdefense.
However, the autopsy results indicated that the victim was shot from behind. Eye witnesses testified
at trial that Moten advanced toward the victim as the victim ran from him. The victim fell to the
ground after being shot, and Moten then walked over to the victim who was on the ground and shot
him several more times.
The Act 1780 petition sought fingerprint testing of the bullets found at 31st and Henry in
order to prove that the shooting was justified. Appellant reasoned that if the victim’s or Johnson’s
prints were on any of the bullets or casings found at that location, the fingerprints would prove that
the victim was the aggressor in the gun fight. Thus, according to the petition, all defendants would
be found innocent of the later shooting of the victim.
At the hearing on the Act 1780 petition, an attorney then representing all codefendants argued
to the trial court that the identity prerequisite was satisfied when attempting to determine the identity
of the victim/aggressor. However, this interpretation of Act 1780 is patently incorrect. The identity
issue goes only to the person convicted of the crime, and only when scientific testing is able to
exclude him or her from having committed the crime, thus proving the person’s innocence. Section
16112103(a)(1) states that a petition for writ of habeas corpus shall issue to one “who has alleged
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actual innocence of the offense . . . for which the person was convicted[.]” (Emphasis ours.)
In addition to exoneration of one wrongly accused of committing a crime, the act allows the
state to commence prosecution against an unknown person identified in the information or indictment
only by his or her genetic information. Ark. Code Ann. §51109(i) (Supp. 2001), as amended
pursuant to §2, Act 1780 of 2001. It is clear from the language of the statutes and Act 1780 that the
issue of identity is limited to the person accused or convicted of committing the crime, and not as
support for a defense of justification, or based upon the identity of a third person. Moreover,
appellant has cited no authority to support this interpretation of the act
As to the identity of the shooter, evidence adduced at trial showed that the victim and Johnson
were in the field talking when all three of the defendants drove up in appellant’s car. Gordon and
Moten, each holding a gun, got out of the car while appellant remained in the driver’s seat. The
identity of the shooter was known, as Moten readily admitted that he shot the victim. Appellant, who
remained in the car during the shooting, was convicted as an accomplice to the murder. As the
identity of the shooter and his accomplices was never an issue at trial, the identity prerequisite
pursuant to section 16112202(b)(1) could not be met.
As to his claims of actual innocence, any fingerprint results would not advance appellant’s
claim, or exonerate appellant under section 16112202(c)(1)(B) to show that the testing would
produce evidence materially relevant to his assertion of actual innocence. The presence of the
victim’s or Johnson’s fingerprints on the bullets would not disprove the evidence introduced at trial
as outlined above. Also, fingerprints could not prove that the victim or Johnson were the persons
firing the bullets, that the bullets were fired at the defendants, or when the bullets were discharged
in order to chronologically place the firing immediately prior to the victim’s murder. At most, the
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men’s fingerprints would merely confirm that the men touched the bullets at one time.
Therefore, even if direct proof existed that the victim was shot shortly after firing at the
defendants, evidence of appellant’s guilt was overwhelming in spite of a claim of selfdefense. The
requested scientific testing would not advance appellant’s claim of innocence. Section 16112
202(c)(1)(B). Moreover, a claim of selfdefense cannot be proved by the presence of the victim’s
fingerprints, as appellant contends.
Finally, any scientific testing would be cumulative to evidence introduced to the jury under
section 16112202(c)(1)(B). At trial, the jury was presented with the selfdefense theory advanced
by Gordon and Moten, and with appellant’s claim that he had no knowledge that the victim was going
to be killed. The scientific evidence requested would be solely for the purpose of attempting to
reinforce the selfdefense claim, rather than proving the claim, as contended by appellant. Therefore,
any fingerprint testing sought by appellant would be contrary to the requirement that scientific testing
produce new, noncumulative evidence pursuant to section 16112202(c)(1)(B).
The scientific testing requested does not support appellant’s claim of innocence, or comply
with the prerequisites mandated by statute. Appellant failed to meet his burden of establishing
entitlement to relief pursuant to Act 1780.
Appeal dismissed; motions moot.
Brown, J., not participating.
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