WILMINGTON, N.C. (AP) — A judge on Thursday ruled that a North Carolina man who was convicted of murder as a teenager and was imprisoned 28 years ago did not get a fair trial and allowed him to go free.
North Carolina Superior Court Judge W. Douglas Parsons ruled Thursday that there was not enough evidence to justify 43-year-old Johnny Small’s conviction for a 1988 murder.
The judge said he didn’t see proof of Small’s innocence, but was persuaded that prosecutors must decide if there was enough evidence to put him on trial again.
“I don’t know if Mr. Small did this or not. Whoever did this is a monster,” Parsons said. “What I’m here to decide is, did he receive a fair trial? … It is more than abundantly clear that he did not.”
Small was expected to be freed later Thursday from a Wilmington prison. The judge set the bond amount at $100,000 but said Small could be released without putting up the money.
He will be under electronic house arrest and live with a cousin in the port city while charges are pending.
“He’s coming home after all these years away from his family,” said Wendy Rickman, another of Small’s cousins. “I was surprised that someone finally after all these years listened to Johnny. Johnny’s been telling everyone that he was innocent.”
Small’s sister, Angela Cain, said, “I’m just happy that we’re going to have him home right now.”
Small has been imprisoned since the 1988 murder of Pam Dreher in Wilmington. She was shot in the head at point-blank range while she was lying on the floor of her tropical fish store.
Dreher’s family left the courtroom Thursday without speaking to reporters.
District Attorney Benjamin David said in a statement that his staff will meet with Wilmington police and the state attorney general’s office “to determine whether any additional investigation should be conducted or additional charges should be filed.”
The statement offered no timeline on a decision and a spokeswoman did not respond to an emailed question.
Small, wearing a tan jail uniform, was led from the courtroom before the judge finished speaking. His attorney, Chris Mumma, said he was hyperventilating as he realized he was about to be freed.
“Johnny Small is no more guilty of this murder than I am,” Mumma said. “My belief is that the evidence clearly established his innocence.”
About 150 people falsely convicted of crimes — a record number — were exonerated in 2015, according to the National Registry of Exonerations. The registry is a project of the University of Michigan Law School and has documented more than 1,850 such cases in the U.S.
Parsons’ decision came after Small’s teenage buddy said he was pressured by police to testify at the murder trial that both he and Small were at the scene. David Bollinger says a Wilmington homicide investigator made up the story and his grandfather pressured him to lie on the witness stand. Bollinger said he could no longer keep quiet and was ready to face the chance of being prosecuted for perjury on the witness stand nearly three decades ago.
State attorneys argued that Small deserved neither a new trial or to be freed from prison.
Bollinger, 47, said he testified falsely at Small’s trial because prosecutors promised charges he faced would be dropped in exchange and threatened the death penalty if he didn’t cooperate.
Bollinger said he was driving to an automobile auction in South Carolina with his boss about the time Dreher was killed and didn’t drive Small to the scene, as he testified at the 1989 murder trial. He said he lied then because he was afraid that since he was an adult he could get the death penalty, and a Wilmington police detective told him Small could get out of prison after turning 18. Bollinger said he confided to his grandfather, a former police officer and FBI agent, about the lie police told him to tell and was told he should stick to the story.
Small’s attorneys said without Bollinger’s testimony, prosecutors never could have convicted Small of a crime that would have required planning by a more mature mind than the drug-taking, car stealing, juvenile delinquent Small admitted to being at age 15. No gun, fingerprints or blood-spattered clothing tied Small to the crime.
Small and Bollinger were arrested three months later while attending the county fair after police got a Crime Stoppers tip from one of their former classmates.
Nina Raiford said she was walking past Dreher’s shop when she saw Small exiting, then saw a news report about the slaying the same night. She didn’t report what she saw until after Crime Stoppers offered a reward and she spoke to a school counselor two months later, Small’s attorneys said.
Punch-clock records from the fast-food restaurant where Raiford worked show she didn’t quit work the night of the slaying until after she described spotting Small.
Parsons said he determined it was physically impossible for Raiford to be at the murder site as she claimed and that police withheld key evidence.
Follow Emery P. Dalesio at http://twitter.com/emerydalesio. His work can be found at http://bigstory.ap.org/content/emery-p-dalesio.