*1 95 рermitted recording jury 6. At to hear an was audio Nottingham’s telephone shootings. call, 911 made time of recording However, relatively poor quality, court because deemed the to be transcription provided no written was jurors. During jury deliberations, asked to hear the audio record- ing again. replayed gave once it trial court allowed to be jurors, give telling curative instruction to the them not record- ing weight merely they additional because heard twice.
Appellant by replay- claims the trial court abused its discretion ing open recording However, audio court. it is established that begun, discretionary after deliberations have a trial court au- thority permit jury, request, testimony its rehear in the presence.17 testimony defendant’s The fact that in this case the was replayed recording stenographic from rather reread than legal consequence.18 notes is оf no
Judgment theAll Justices concur. affirmed. May 3,
Decided 2004 28, Reconsideration June denied 2004.
Jeffrey appellant. Grube, L. for Kelly Attorney, Attorney Burke, Baker, R. District Thurbert E. Attorney appellee. General, Jacobs, General, E. Chad Assistant for S04A0589. THE CRAWFORDv. STATE.
(597 403) SE2d Justice. Thompson,
In 1984 Eddie Crawford was convicted and
sentenced
death
English.
niece,
the murder
29-month-old
Leslie
first
This
appeal
conviction was reversed on
Court
to this
based
an ambi
guity
jury’s
(330
State,
in the
verdict.
v.
254
435
Ga.
SE2d
Crawford
567) (1985).
whereupon
1987,
then
Crawford was
retried
he again
State,
convicted
sentenced to death.
v.
257 Ga.
Crawford
(362
201) (1987).
subsequent
681
SE2d
state
federal
petitions
(2002),
Head,
habeas
cert.
failed. See
The or the state judgment pursuant to this Code section. rendered language emphasizes (c) (13). conclude that this § OCGA 5-5-41 We Assembly’s seeking of a motion intent that denial the General part extraordinary testing for as an new be DNA made of appealable filing recognized issue, also but we conclude that an discretionary appeal application appeal proper form of of in that the denial of an yield Concluding result a otherwise would absurd such case. extraordinary an motion for new trial would be discretionary appealable only appeal a motion as a while the denial of seeking testing part that motion for DNA filed as of appealable directly. be new trial would failing both contends the trial court erred by denying request testing for DNA that
conduct a disagree request testing. for DNA with both contentions. We requires newly-adopted testing (a) a trial court DNA statute “complies hearing only a if a defendant’s motion with the to conduct requirements paragraphs (3) (4)” the 5-5-41 OCGA§ statute. comply (6) (A). trial court found that Crawford failed requirement paragraph that a must show in with the defendant testing her motion for DNA that his or requеsted testing prob- DNA raise a reasonable
[t]he would acquitted ability if the [defendant] would have been testing of DNA had been time of results available light conviction, in of all the evidence in the case. (c) (3) (D). requirement, argues §
OCGA 5-5-41 along requirements (4), paragraphs (3) may with the other seeking testing satisfied a mere in motion assertion that the requirement argument has met. been Crawford is correct in this (4), regards paragraph requires merely insofar as petitioner which that a testing being “state” or her motion for DNA is not purpose delay request testing made and that the for DNA being previously or, either made for first time if made in another granted previously. (c) (4). court, never OCGA § 5-5-41 prerequisites paragraph (4) simple These require two are matters that explanation petitioner’s no detailed contrast, motion. In paragraph (3) requires however, things, including that the “show” certain possible requested
how the petitioner’s led to acquittal hypothetical if those results had been available time petitioner’s original (c) (3). Requiring of the petitioner trial. OCGA 5-5-41 possible
to “show” a result and “show” *3 hypothetical requiring relevance of that result not tantamount to “prove” hypothetical the to the result will be obtained through testing. testing hypoth- if However, actual the DNA results petitioner’s valid, motion, esized in when even assumed would not probability petitioner’s acquittal in reasonable have led to the if those petitioner’s trial, had been results available at on the requesting testing unnecessary. motion DNA (b) Upon our review the trial record and the record of Craw- ford’s motion for new we conclude the trial court concluding testing did in not err Crawford’s showing requested testing might failed to set forth a yielded in results that would have led to acquittal original his if those results had available at his trial. referencing court, We find that the trial after discussions of Craw- requests legal ford’s for DNA other courts under other properly weighed hypothesized standards, against overwhelming actually presented at proper Georgia statutory under the standard. See (D). OCGA§ 5-5-41 supports clearly following
The evidence at Crawford’s trial synopsis surrounding English’s of the events Leslie murder. On the evening leading up murder, the victim and a number of her being by grandfather cousins watched their were as some family spent evening adults in аrrived at a social club. Crawford estranged and dance at social club asked his wife to with ejected grabbed and refused, her shirt was she Crawford him. When home at then went his father-in-law’s from the club. Crawford p.m. bought mother, drank beer with victim’s 11:30 and and about mother refused Craw- victim’s who one his sisters-in-law. was night spend him, she then invitation for her ford’s confronted the victim’s homes. Crawford walked to one her sister’s stomped table, home, his foot on a coffee at hеr mother sister’s yelled you” grabbed mother, “I’llfix as the the victim’s and shoved shortly a.m., the victim’s Sometime after 3:00 victim’s mother left. walking through grandfather’s grandfather observed Crawford cigarette lighter, holding an observation home in dark while police. statement At confirmed later Crawford’s own that was approximately time, one of Crawford’s brothers-in-law the same grandfa- pulling up to the victim’s Crawford’s automobile observed shortly departing house and then afterward. ther’s point grandfather’s house, Crawford was in the At some while (other victim) got than the and a bed with nieces Crawford into two hugged nephew. nephew kissed testified that Crawford plea, [the unusual “Wanda victim’s and then him and made the sister mother’s first Shortly please afterward, the tell.” victim name], don’t Ultimately, missing grandfather’s home. was discovered her sexually-assaulted body partially-unclothed, beaten, and victim’s asphyxiated on to death a wooded roadsidе. was discovered gave disappearance, inconsistent After the victim’s family about his whereabouts to various members statements slept investigators. times, he had on a At certain Crawford claimed belonging relatives; however, that claim was couch in a home up disproved the relative had been one relative’s statement during night had not Crawford on the several times observed slept times that he had couch. Crawford claimed other home; however, relative’s that claim automobile front of another shortly disproved by at that home after the witnesses who were disappearance. wearing A shirt that had been victim’s night of the murder was discovered hidden behind a cabinet. The consistent front tail of the with Crawford was stained with blood a location shirt *4 having raped having inflicted the the victim and injuries autopsy. during the identified noted victim’s Crawford’s wife body items of linens that were discoverеd with the victim’s three bed having home. She also testified that been taken Crawford’s day had after the murder cleaned automobile placed automobile, had removed his socks from his Crawford had bag, bag thrown to across the socks in a trash and had the lot by officers; law enforcement on them street. socks were recovered consistent head consistent with Crawford’s and fiber were two with the hairs carpet the bed linens were a in Crawford’s аutomobile. On number of hairs consistent with Crawford’s and victim’s head pubic hairs, hair, a hair consistent with Crawford’s and a fiber carpet consistent Crawford’s automobile. Two hairs consistent with the victim’s hair head were found Crawford’s investigators automobile. Crawford admitted in a statement to having unresponsive he remembered victim in automobile on night carrying away of the murder and remembered the victim from his automobile.
Upon evidence, our review of the triаl which summarized denying request above, and of the trial court’s order Crawford’s for testing only peripherally, all, items related if at denying case, we conclude the trial court did not err Craw- request testing ford’s made within his assuming for new reach because, trial. We this conclusion even reality hypothesized, of the DNA results Crawford has such would not led to Crawford’s acquittal, receiving they or death, to his a sentence less if than (c) (3) (D). been available at Crawford’s trial. § OCGA 5-5-41 light foregoing, hereby stay 3. In we dissolve the previously by Crawford’s execution entered this Court. Judgment except concur, Fletcher, J., All the Justices C. affirmed. Benham, J., who dissent. dissenting. Justice, Chief FLETCHER,
Recognizing justice system may that errors in the criminal lead persons, legislature of innocent execution enacted OCGA (c) help only actually guilty § 5-5-41 insure that those who are will put death hands of the State. To this achieve laudable goal, plainly petitioner the statute states that once the has satisfied requirements, hearing.” By denying certain “the court shall order a right hearing to a to determine whether evidence might exists that is testable and to a lead different result at majority ignores plain language very pur- this undermines pose majority of the statute. The allows its revulsion the undeni- ably deny process heinous nature of the crime to due by reasons, demanded the statute. For these I dissent. (c) provides prоcess person OCGA 5-5-41 which
previously may convicted certain crimes seek have DNA challenge process key part done in an effort to his conviction. A ofthis attorney permit- is a which district are present testimony.1 providing ted to In affidavits or process, Georgia legislature responding to a national (C) (D) (parties may 5-5-41 also submit additional memoranda of law OCGA§ days hearing). or evidence within 30 after the *5 being wrongfully persons and conviсted about innocent concern newly wrongs.2 previous right those that could available DNA right,” doing Adelman, a lead said Senator David what is “It’s about sponsor of the bill.3 admittedly, confusing, language is, but a little of the statute legislature’s clear to insure the intent
a
examination reveals
careful
justice system
process by
could take
a
which our criminal
fair
technology.
advantage
great
5-5-41
in DNA
OCGA
of
advances
the
requirements
petitioner
(c)
(4)
(3)
a
meet
the
must
and
dictate
hearing.
(c) (6) (A)
granted
petition
then
in order to be
a
Subsection
provides
that the motion com-
that
the trial “court determines
once
(4)
paragraphs (3)
plies
requirements
and
this subsec-
the
of
of
with
majority
hearing to
. . .” The
tion, the court
order a
occur.
shall
judge
mistakenly
provision
to
the
to allow the court
merits
reads this
doing
petition
granting
hearing.
however,
so,
In
of the
majority
without
(c)
(E),
provides
completely ignores
(6)
which
that
subsection
parties
hearing
part,
purpose
is,
to
to be heard
ofthe
“allow
petitioner’s
complies
with the
on the issue of
whether
(3)
(4)
requirements
paragraphs
of
If the court
and
this subsection.”
hearing,
judge
petition
to
of the
without a
were allowed
merits
contrary
(c)
meaningless,
(6)
to
be
our
would
rendered
subsection
duty
any portion
of it
read
as not to render
to
the statute so
reading
meaningless.4
of the
that honors all its
A sensible
statute
verify
petition
language
petitioner
that he can
is that a
must
in his
(3)
(c)
(4),
showings
if
set forth in subsections
make
requirement,
pleading-type
hold
he
hearing
the court shall
meets
pled.
petitioner
prove
what has been
to determine if the
can
requirements
set forth in subsections
Acloser examination
logical.
(c)
(4)
reading
inherently
(3)
that this
is
demonstrate
(c)
hearing
According
(6) (E),
purpose
is
one
to subsection
parties
ofall the
to be heаrd on “whether
consideration
allow
there
verdict would have
evidence
is a
requested
different
had been
been
if the
one of
at the time oftrial.” But this same standard
also
available
petition
requirements
in order for a
that must be met in
verified
ofinmates exonerated was 143. Innocence
(2003) (quoting
sensible
construction
been exonerated based on
Id. at 119.
[3]
any part
Houston Lowes of
Melissa T.
intelligent
that a
statistics
Rife,
statute
without
effect to each
showing
Savannah,
Peach Sheets Criminal
should be
newly-available
meaning.”).
that 114 inmates
Inc.,
part
construed
-
Project,
[,
235 Ga.
as
i]
t not
available
“to
nationwide,
evidence).
Procedure,
make
presumed
athttp://www.innoeenceproject.org.
all its
As of
including
20 Ga. St. U.L.Rev.
that the
parts
May
harmonize and
115) (1975)
14,2004,
legislature
three
the number
(basic
intended
Georgia,
give
rule
granted
(3).5
to be
under
Because
subsection
the statute
contemplates
evidentiary hearing
require-
an
if
determine
only
paragraph (3)
met,
ments
makes
treat
sense to
requirements
preliminary
requirements
pleading-type
those
petition.
majority
paragraph
the verified
require
instead construes
present
all the
the verified
petition,
wholly
logic
which is
inconsistent
the statute’s
purpose.
majority’s
ignores
*6
The
construction also
the fact that a
petitioner seeking
DNA
most often will not have cоunsel
appointment
because the
does not
statute
authorize the
of counsel.6
alleges
petition showing
2. Crawford
in
detailed facts
his verified
potential
that:
DNA evidence in the form of blood stains exists on
police
shortly
items seized
from the victim’s home
after the
attorney
crime; this evidence was
trial
unknown
Crawford’s
be-
police report
suppressed by
cause the
State;7
was
at
defense
that
crime;
was
someone else had committed the
other
persons
night
who had access to the 29-month-old victim on the
ofthe
history
sexually abusing children;
crime had a
of
the evidence has
currently
counsel;
been viewed Crawford’s
is
evidence
in the
possession
Spalding County
Department;
Sheriffs
and a chain
custody
Upon reviewing
of
can be established for the evidence.
petition
response,
and
the State’s
I conclude that Craw-
requirements
(3)
ford has satisfied the
of subsеctions
and
that
and
summarily denying
the trial court
erred
the motion
hearing.8
without argues,
majority agrees,
The
and
State
that DNA evidence
could not result in a different
outcome
trial because of the “over-
whelming”
guilt.
of
evidence,
evidence
A closer
examination
however,
“sufficient,”
that
it
demonstrates
while was
not so
was
strong
preclude
possibility
as to
the reasonable
that DNA evidence
pointing
perpetrator
to another
wоuld have resulted
a different
light
potentially
outcome
of all the
evidence.
available DNA
exists
evidence
on blood-stained items seized from the
home
victim’s
shortly
including
baby
crime,
blanket,
after the
the victim’s
bed
slept,
linens from the bed where the victim
and men’s trousers that
5
(c)(7).
OCGA §5-5-41
Turpin,
855, 859-860 (513
186) (1999) (no right
also
See
Gibson v.
270 Ga.
SE2d
counsel
beyond
appeal).
provide
appointment
direct
state
Other
statutes do
for the
of counsel DNA
Swedlow,
post-conviсtion
Kathy
proceedings.
EverythingYou
See
Don’t Believe
Read: AReview
Statutes,
Testing
of Modern “Post-Conviction” DNA
Rev.
Cal. W. L.
364-365
response
Open
Request,
The existence ofthis evidence was first disclosed in
to an
Records
50-18-70, during post-conviction proceedings.
under OCGA §
State,
(under
11) (1982)
(a),
also Dick
248 Ga.
OCGA 5-5-41
applies
typical
required
which
petition
if the
new
facts,
proven,
relief).
sets forth
that if
would authorize
belonged
This blood-stained evi-
than Crawford.
to someone other
theory
at trial
and other evidence
conflicts with the state’s
dence
showing
If the
home.
was killed in Crawford’s
that
victim
person
other than
these
matches the victim
evidence on
items
clearly
a reasonable
Crawford, then the
DNA evidence
raises
new
possibility
trial.9
have occurred at
that a different result would
heavily
“matching”
blood,
hair,
State’s case relied
on
microscopic
analysis
hair
reliance on thе
fiber evidence. The
particularly troubling
argued
repeatedly
prosecutor
that
because the
sample
“matching,”
one hair
the hair evidence was
It
same,”
matches.”
“identical,” “the
and “identical
another were
microscopic
(as opposed
analysis
now
well-established
samples
analysis)
an identical match or
ofhair
cannot establish
prosecutor
provide any type
Although
positive
identification.10
argued
shirt matched the victim’s
also
that blood found on Crawford’s
type
absolutely
blood found on
blood, there was
no evidence of
any
shirt,
a “match.”
other blood
much less
evidence of
While
presented, the
evidence collected from Crawford’s home
type
only
type 0,
which was the blood
the blood was
showed
both
The fiber evidence consisted
fibers
the victim
Crawford.11
top
pajama
fibers from
found
the victim’s
that were consistent with
*7
Howеver, the
the week before
car.
evidence showed that
crime,
ridden
her mother in Crawford’s car at
the victim had
Finally,
times.
case also relied
least two
State’s
police following
interrogations.
lengthy
statements
been exoner
Numerous defendants who made confessions have
Likewise, numerous defendants
ated based on DNA evidence.12
Responses
Knighten
http://www.innocenceproject.org/case/display_profile.php?id=59,
Reynolds,
A. Stafford Smith and Patrick D.
Faircloth,
link
Butler,
prosecutor
was later exonerated
hair
microscopy
expert]
scientific basis for
does
Century
[10]
[9]
not
comparisons
On the other
Diana L.
See,
24 SW3d
acknowledged
satisfy
Science
904 F.
394 SE2d
relied
to Advancements in DNA
e.g.,
of hair is not
testing was
State,
to the victim.
Daubert
Scott
or Twentieth
Kanon,
heavily
Supp. 1529,
[21]
do not
hand,
testifying
Decided June Reconsideration denied June appellant. Olive, Dunn, Mark E. Thomas H. Attorney, III, Baker,
William T. McBroom District Thurbert E. Attorney Boleyn, Attorney General, Susan V. Senior Assistant Gen- appellee. eral, for
S04A0966. FRANTZ v. PICCADILLY PLACE CONDOMINIUM
ASSOCIATION. 354)
(597 SE2d CARLEY, Justice. Piccadilly
Mark Frantz is a unit within owner Place Condo parties litigious relationship. minium Association. The have had a Piccadilly App. Frantz, Place Condominium Assn. v. Ga. 728) (1993). brought against The Associаtion suit Frantz for unpaid judgment assessments and writ obtained and a offieri facias exceeding $9,000. an amount The Association amended its condo pursuant permit minium declaration to OCGA 44-3-76 so as to it to suspend being provided judgments utilities to a unit after final total beenconvictedbased, L.J. Ill. L. Rev. Innocence convicted based spoon 14 Craig police-induced Jurors More The Innocence 510-511 and n. 237 *8 Project M. Cooley, inpart,onmicroscоpichair Deferential study (2003) (“[d]ata confessions false Project Forensic that of 62 confessions); are a Individualization Suspect of first 70 drawn from DNA-cleared (citing leading persons Welsh Science comparisons), availableathttp://www.innocenceproject.org. studies). persons cause of exonerated S. Confessions White, than Sciences exonerated wrongful Non-Witherspoon and the cases also convictions based on DNA evidence had evidence, Capital Jury: support Capital Jurors?, capital 24% had been Cases, Are Wither- 27 S. 111. conclusion cases.”). U. U.