Subsequent to this Court’s consideration of matters raised in
Caldwell v. State,
1. Construed to uphold the verdict, the evidence adduced at trial established that Kay Caldwell met appellant when she was 14 years old and he was in his 20’s. They dated and had sex but did not enter into their common-law marriage until several years later. The couple had two children, Sara and Ben. Appellant, who had abandoned his family shortly after Ben’s birth, was accepted back into the family after an eight-and-one-half-year absence. At the time of the crimes, Sara was twelve years old but was physically mature for her age and looked more like she was fifteen; Ben was ten years old. On Sunday, August 15, appellant and Sara went on a day-long fishing trip to an area he and Ms. Caldwell had frequented when they first dated. That night, appellant and Sara stayed up watching TV after Ms. Caldwell and Ben went to bed; the next morning, when Ms. Caldwell found appellant on the living room couch wearing the prior day’s work uniform, he told her he had spent the night watching TV. Ms. Caldwell testified that she had been awakened in the middle of the night by the sound of appellant leaving the master bedroom; two adult movies, one depicting sexual acts involving women dressed as young girls, which were usually kept by appellant in the master bedroom closet, were found under the living room couch later that day.
Ben testified that he was awakened by a clanging noise, but returned to sleep after appellant, wearing work pants but no shirt, came to his door and reassured him. He awoke sometime later when he heard appellant, standing in the bedroom doorway, calling his name. Seconds later Ben was hit on the right side of his head. When he regained consciousness, he found a gaping hole in his chest and a sash tied tightly around his throat. After his attempt to cut the sash proved futile, Ben went into the bathroom to clean his wounds. He was found unconscious in the bathtub by his mother, upon her return from work. Medical testimony established that Ben had suffered a profound loss of blood from numerous stab wounds (consistent with a knife four to six inches long), a loss of oxygen from near-strangulation, and a fractured skull, which expert testimony established was *562 consistent with being hit by an iron skillet. The handle to an iron skillet was found in Sara’s room.
Sara’s body was found on her bed. Physical evidence established that she had been raped in the master bedroom. She had then been strangled to death with a piece of drawstring taken from a jogging suit in the living room closet. There was no evidence to suggest prior sexual activity by the victim. A pubic hair taken from Sara’s panties was consistent with appellant’s pubic hair; semen in her vaginal tract was consistent with appellant’s blood group. Appellant’s DNA was present in a DNA analysis of the blood and semen; expert testimony was adduced that the probability of another having the same DNA was one in 258,930,000. The pattern of scratches on appellant’s upper torso was consistent with Sara’s fingernails, torn in a manner consistent with defensive wounds.
Although the police, who arrived at the scene before appellant, did not allow him in the apartment, blood consistent with appellant’s and Ben’s blood type was found on the ignition switch of appellant’s truck and his keys. A boot print made in blood on the back door of the apartment had a tread consistent with the boots appellant was wearing that day. The day Ben regained consciousness, appellant went to visit a friend, phoned his wife to ask if he could bring her a meal at the hospital, then disappeared. Three days later, when he called the friend to ask for a ride home, he requested that she not “tell anyone where I am.”
This court does not weigh the evidence on appeal or resolve conflicts in trial testimony. Rather, it is the function of this court to examine the evidence in the light most favorable to the verdict and to determine whether any rational trier of fact could have found appellant guilty beyond a reasonable doubt.
Jackson v. Virginia,
2. The trial court erred by not merging the aggravated child molestation conviction into the rape conviction for sentencing purposes. As we noted in
Pruitt v. State,
3. We find no error in the trial court’s denial of appellant’s challenge to the traverse jury array and his objection to the traverse jury.
A defendant has no right to a jury selected from a list which perfectly mirrors the percentage structure of the community. What is required is a list which represents a fair cross section of the community and which is not the product of intentional racial or sexual discrimination. [Cit.]
Cook v. State,
4. The State used nine of its ten peremptory strikes against black potential jurors. The record reveals that in response to appellant’s assertion of a constitutional challenge (see
Batson v. Kentucky,
5. The trial court did not err by refusing to charge that the presumption of innocence is “in the nature of evidence.”
Mathis v. State,
6. The trial court gave the same pattern charge discussed in
Vance v. State,
Although the better charge would not include [the phrase *564 “reasonable and moral certainty,”] we held in Vance v. State, [supra,] that a similar instruction “created no reversible error when ‘considered in the context of the charge as a whole.’ [Cit.]”
Hicks v. State,
7. As to the trial court’s charge concerning guilt beyond a reasonable doubt in which it referenced the “duty to convict,” we suggested in
Sutton v. State,
8. The trial court’s charge on premeditation was approved by this Court in
Wright v. State,
9. No mandatory inference, unconstitutional under
Sandstrom v. Montana,
10. We find no error in the trial court’s failure, in the absence of a written request, to give a charge specifically on identification. See
Johnson v. State,
11. The failure to give a charge on prior inconsistent statements as substantive evidence is not error as “[a]bsent instructions to the contrary, the jury surely regarded substantively
all
the evidence presented to it. [Cit.]”
Ford v. State,
12. We find no error in the admission of photographs of pre-autopsy views of Sara Caldwell, see
Thomas v. State,
13. We find no error in the trial court’s admission into evidence of four adult movies found in the apartment. The tapes were not shown to the jury, although a witness who viewed the tape found under the living room couch testified it depicted women dressed as
*565
young girls having sex with various men. This evidence was admissible to show appellant’s bent of mind toward the sexual activity with which he was charged and his lustful disposition.
Helton v. State,
14. No reversible error was committed by the admission of testimony by Ms. Caldwell about her sex life with appellant. See generally
Smith v. State,
15. No error is presented by the admission of evidence regarding appellant’s three-day disappearance and the prosecutor’s argument of flight.
Renner v. State,
16. We find no error in the trial court’s denial of appellant’s motion to compel Ben to submit to examination by a defense-employed psychiatrist. It is well-established that a witness cannot be compelled to submit to an interview with a defense representative. See, e.g.,
Baxter v. State,
17. We find no abuse of the trial court’s discretion in admitting expert testimony that the boot print found on the back door had a tread similar to that on boots appellant was wearing the day of the crimes. This evidence was relevant in regard to statements made by appellant to police, in which he speculated that the crimes were committed by an unknown perpetrator who kicked in the back door of the apartment. See generally
Spencer v. State,
18. Appellant did not object to Dr. Lochridge’s testimony about post-traumatic stress syndrome, did not request additional curative instructions or move for a mistrial in regard to an improper question posed on cross-examination to a defense witness, and made no objection to the State’s argument regarding the failure of the. defense to produce evidence rebutting the State’s DNA evidence. Accordingly, these matters do not present grounds for reversal. See generally
Shearer v. State,
Judgment affirmed in part and vacated in part.
Notes
The crimes occurred on August 16, 1988. Caldwell was indicted December 7, 1988 in Cobb County. The case was transferred to Muscogee County, where Caldwell was tried and found guilty on all counts on February 9, 1991. He was sentenced on February 12, 1991. His motion for new trial, filed March 6, 1991 and amended on January 3, 1993, was denied January 11, 1993. A notice of appeal was filed February 8, 1993. The transcript was certified on March 25, 1993 and the appeal was docketed on April 1, 1993. The appeal was submitted for decision without oral argument on May 14, 1993.