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WILMINGTON, N.C. (AP) — A man convicted of committing murder when he was 15 said Monday that he could only imagine the pain the victim's family experienced, but he was unequivocal in stating his innocence: "I swear on my life I didn't do it."
Johnny Small's comments came at a hearing Monday that could lead to his release. A Superior Court judge will consider whether Small should have been convicted now that a childhood buddy, David Bollinger, recanted testimony accusing Small of killing Pam Dreher in 1988. An autopsy report indicated Dreher was shot in the head at point-blank range while she was lying on the floor of her tropical fish store.
Judge W. Douglas Parsons is hearing the matter without a jury. The judge could toss the conviction, order a new trial or uphold the conviction.
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.
Bollinger, 47, and Small, now 43, faced each other Monday for the first time since they were teenagers on opposite sides of a murder trial. Bollinger has said he testified only because prosecutors promised charges he faced would be dropped in exchange and threatened the death penalty if he didn't cooperate. Bollinger said he repeated a story pinning the crime on Small that was fed to him by a homicide investigator on the Dreher case.
"I'm sorry. I was forced to do something I didn't want to do and I can't take it back," Bollinger told Small, a broad-shouldered man with freshly shaved head. Small's face scrunched and reddened as he choked back tears, then raised his handcuffed wrists so he could dab his eyes with a tissue.
Bollinger said he understands North Carolina could prosecute him for lying under oath during the 1989 murder trial. But he got Small to sign a waiver that he wouldn't sue Bollinger. Bollinger said he didn't want to lose the small business and home he's built for his wife and children over the years.
"What do you get out of this?" Small's attorney Chris Mumma asked.
"I get nothing," Bollinger said.
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 in 1989. 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.
"He told me to go along with the story. He knew I would get into trouble, and he didn't like Johnny," Bollinger said. Bollinger said his grandfather sat in on some of his interviews with Wilmington police, and Bollinger went to live with his grandfather after he was released from jail.
Charges against Bollinger were dropped after Small's appeals through state courts failed.
Small's attorneys say 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 were found tying Small to the crime.
State attorneys said Small deserves neither a new trial or to be freed from prison. They spent hours trying to undermine the credibility of Small, Bollinger and others who testified Monday.
A man exonerated by DNA evidence after 18 years in prison, Dwayne Allen Dail, also testified Monday that he was freed with the help of the North Carolina Actual Innocence Commission, which Mumma heads as executive director. Bollinger was introduced to Dail at a party both attended in 2012, learned about his exoneration and then contacted the commission about his now-recanted testimony.
"I knew right then I'd found a way to at least come forward to someone," Bollinger said. He said he approached the commission shortly thereafter.
State lawyer Jess Mekeel said the judge shouldn't now believe that the story Bollinger first told as a teenager — and which he stuck with for years through grillings on witness stands — is fiction.
At a time when podcasts and TV programs tell the stories of people wronged by a flawed justice system, "innocence is in vogue now, and this case is quite a story," Mekeel told the judge. "I think you've also heard the phrase, never let the facts get in the way of a good story. This is a good story. The facts will get in the way."
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