Convicted killer: 'I swear on my life I didn't do it'
Posted August 8, 2016 12:23 p.m. EDT
Updated August 8, 2016 6:38 p.m. EDT
Wilmington, N.C. — A 43-year-old man who has spent the bulk of his life in prison for a murder he says he didn't commit wept Monday as he tried to convince a judge that he was wrongly convicted.
Johnny Small was convicted of killing Pam Dreher, who owned a tropical fish store in a Wilmington strip mall, during a robbery in 1988, when he was just 15.
A key witness in the case, David Bollinger, called the nonprofit North Carolina Center on Actual Innocence four years ago to say that he had lied about Small's involvement in the crime after investigators threatened him with the death penalty. After a subsequent investigation, center director Chris Mumma filed a motion seeking to have Small's conviction vacated or to at least get him a new trial.
"The theory was simply wrong that this 15-year-old committed this execution-style slaying," said Bob Orr, a former state Supreme Court justice who is representing Small along with Mumma.
Orr noted there was no physical evidence linking Small to the crime, one eyewitness had already been discredited and Bollinger's recanted testimony leaves prosecutors with nothing to present to a jury.
Small testified that he was at a friend's house the night Dreher was killed, and Bollinger, who prosecutors said had driven the teen to the fish store and then helped his getaway after the shooting, testified he wasn't there either and knew nothing about the crime.
Small said that, when he was arrested three months after the shooting, police showed him photos of the crime scene. "I told him it was a lie, that I would never do anything like that," he said Monday.
He said he never testified at his murder trial because his defense attorney advised him not to.
"I swear on my life I didn't do it. I swear on my life," he said.
"I lied on him," Bollinger said. "(The investigator) told me, if I didn't say (that Small did it), he was going to prosecute me for murder, and I would get the death penalty."
All charges against Bollinger were eventually dropped, and he went on with his life. But he said he later confessed to his grandfather, who told him to stick to the story that Small had committed the crime. He said he couldn't come forward until after his grandfather had died, and called Mumma after a chance encounter with Dwayne Dail, who she helped clear of a rape conviction.
Special Deputy Attorney General Sandra Wallace-Smith noted Small has never claimed innocence in previous motions and had him read excerpts from letters he sent to the state parole board seeking release.
"I know I can never give back what was taken. I will have to live with that sorrow for the rest of my life, and there's not a day that goes by that I don't think of it, because that's not something the Lord is going to let me forget," he read.
"Weren't you talking about the murder?" Wallace-Smith asked.
Small said he was referring to infractions he had committed in prison.
"It could be read that way," she said, meaning referring to Dreher's slaying.
"Yes, ma'am," he replied.
Small's family and several men exonerated because of Mumma's work attended the hearing.
"The family has always felt he was innocent. We've never doubted that at all," said Angela Cain, Small's sister. "Honestly, I'm ecstatic. I never thought I would see this day when he was back in court."
Greg Taylor, who was wrongly convicted of a Raleigh murder and spent 17 years in prison, said hearing Small's testimony gave him flashbacks to his own hearing before the state Innocence Inquiry Commission, noting that this is Small's last chance at freedom.
"I'm here in support of him, and I'm pulling for him to say what he needs to say in order for the truth to prevail," Taylor said.
Dreher's family was also in the courtroom but declined to comment.
"I feel bad for the family. Old wounds are reopened. It's just sad for both sides," Cain said.
Assistant Attorney General Jess Mekeel said Small's motion should be dismissed.
"This is an attempt to retry a 28-year-old case," Mekeel said. "Twelve jurors made that determination already. They heard the evidence. They concluded the defendant was guilty."
Bollinger's testimony at trial was consistent, and recanted testimony is notoriously unreliable, Mekeel said.
"They jeopardize the stability and reliability of our justice system," he said of reopening cases based simply on recanted statements.
The hearing is expected to continue through this week. There's no word on when Superior Court Judge Douglas Parsons will rule on the motion.