dissenting. A "mandate” is the official notice of action of the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed. Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998) (citing 5 Am. Jur. 2d § 776). “[A]n inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Penn. R. Co., 334 U.S. 304, 306 (1948). Moreover, the matters decided upon one appeal become the law of the case and govern this court upon a second appeal, even though we might be inclined to say that we were wrong in the first instance. Wilson v. Rodgers, 256 Ark. 276, 507 S.W.2d 508 (1974).
In Johnson v. State, 356 Ark. 535, 57 S.W.3d 151 (2004) (Johnson III), our court concluded that the DNA results on the negroid hairs could not exclude Mr. Johnson and that the probability of another African-American being the donor of the DNA in question was 1 in 250.1 With regard to DNA results on the negroid hairs, we issued the following mandate and order to the circuit court:
The negroid hairs. The test results on the negroid hairs presented at trial are much more troubling. At trial, DNA results on these hairs could not exclude Mr. Johnson, but the probability that they belonged to another African-American were only 1 in 250. Considering the population of African-Americans in Arkansas alone, these results could conceivably include hundreds or thousands of people besides Mr. Johnson. Mr. Johnson acknowledges that retesting could result in the same narrowing of probability that happened when the cigarette butt was retested, but that the 1 in 250 ratio is so broad and includes so many persons other than Mr. Johnson, that he is entitled to retesting of the negroid hairs under Act 1780. We agree that retesting of the negroid hairs could be materially relevant to Mr. Johnson’s claim of innocence. Certainly, the other evidence in this trial shows that a favorable result would not per se exonerate Mr. Johnson. Nonetheless, our interpretation of § 16-112-202 does not require such a showing of complete exoneration in order to request retesting alone. The fact that some of the negroid hairs were found on the victim’s body made them particularly relevant to the prosecution’s case, and test results that would exclude Mr. Johnson could significandy advance his claim of innocence. For these reasons, we reverse the trial court’s denial of Mr. Johnson’s Act 1780 petition for retesting of the negroid hairs and remand for the trial court to have such tests conducted.
Johnson III, 356 Ark. at 550-51, 157 S.W.3d at 163-64 (emphasis added).
On remand, the circuit court did not order retesting of the negroid hairs; rather, the court went behind this court’s mandate and determined that the State had previously retested the hairs. In fact, the circuit court simply concluded that our holding was erroneous. Whether or not this court erred in Johnson III, the circuit court was obligated to comply with our mandate to have the negroid hairs retested. Moreover, our court does not now have the authority to determine that we were previously wrong in ordering the circuit court to retest the negroid hairs. Wilson v. Rodgers, supra. The only relevant inquiry is whether the circuit court complied with our previous mandate — and it clearly did not.
Consequently, it is beyond me how the majority is able to conclude that an action that so blatantly flies against the court’s holding in Johnson III complies with the “letter and spirit of our mandate.” The majority opinion is nothing more than a disguised recall of our mandate in Johnson III for the purpose of declaring error. In effect, the majority goes behind the opinion in Johnson III to declare that Johnson III contains a factual error. The majority then suggests that the factual error does not affect our holding in Johnson III. Yet, in Johnson III we reversed the trial court’s denial of Mr. Johnson’s petition for retesting of the negroid hairs and remanded for the trial court to have such tests conducted. As of today, however, the trial court’s order denying Mr. Johnson’s petition for retesting is affirmed.
For the above-stated reasons, I respectfully dissent.
Our opinion in the direct appeal, Johnson v. State, 342 Ark. 186, 192, 27 S.W.3d 405, 409 (2000) (Johnson II), reflects the same conclusion. Not until the petition for rehearing in Johnson III did the State challenge the accuracy of that conclusion. Moreover, the State now concedes that its statements in the earlier petition for rehearing “incorrectly characterized negroid hairs submitted to Cellmark by the state crime lab.” The State’s valiant attempt to clarify which hairs were tested and retested, as well as the findings from those tests, only serves to confirm that the record itself is difficult to decipher.