A jury convicted Melvin James Davis of rape (OCGA § 16-6-1 (a) (1)), aggravated child molestation (OCGA § 16-6-4 (c)), and enticing a child for indecent purposes (OCGA § 16-6-5 (a)).
K. C. and her nephew walked to Davis’s house. When they arrived, Davis told K. C.’s nephew to go play with Davis’s own young son, and the two boys went into Davis’s son’s bedroom. Meanwhile, Davis told K. C. to come into his bedroom to get the money. Davis then locked the bedroom door and used both hands to pull down K. C.’s pants. Davis pulled down K. C.’s underwear and told her to get on the bed. K. C. was scared. Davis then took off his clothes and put his penis into K. C.’s vagina.
During intercourse, Davis received a call from L. C., who was worried because the children had been gone for 30 minutes. Davis got up from the bed to answer the phone and told L. C. that the children would be home soon. Davis then resumed raping K. C. until he ejaculated inside of her. The rape lasted for a total of ten to fifteen minutes.
Afterward, Davis gave K. C. some money and told her that he would hurt her if she told anyone what had happened. K. C. and her nephew walked back home. When she arrived home, K. C. was walking with her legs spread apart, as if she was hurt. L. C. asked K. C. what was wrong. K. C. was afraid to tell her sister what happened but later revealed to her mother that Davis had raped her. L. C. then called the police and reported the rape.
K. C.’s mother took her to the hospital, where a sexual assault nurse conducted an examination that evening. The nurse found a fresh abrasion on K. C.’s vagina,' consistent with nonconsensual sexual intercourse. K. C. was also bleeding quite a bit around her cervix. The nurse swabbed K. C.’s vaginal area. Subsequent DNA testing of the swabs indicated the presence of male DNA, although the amount was insufficient to create a profile for testing.
Shortly after the rape, K. C. missed her period. On April27,2005, an obstetrician examined K. C. and determined, based on ultrasound measurements, that K. C. was approximately nine weeks pregnant. In early May, K. C. had an abortion at a medical clinic. After K. C.’s abortion in May 2005, biological material was collected, placed in formaldehyde, per the clinic’s policy, and turned over to an investigator from the State.
The biological material collected from K. C.’s abortion was received by the GBI in May 2005, but was not analyzed until October 2005. A GBI forensic biologist was unable to obtain any usable DNA from the biological material, likely because the sample had been stored in formaldehyde, which can inhibit the recovery of DNA in as little as two or three days. In January 2007, the biological material was destroyed by the GBI crime lab.
1. Davis contends the State improperly destroyed the biological material collected after K. C.’s abortion, which could have shown that K. C. was impregnated after the rape, violating both OCGA § 17-5-56 and his due process rights. We disagree.
(a) The State did not violate OCGA § 17-5-56.
OCGA § 17-5-56 (a) pertinently provides:
. . . [Governmental entities in possession of any physical evidence in a criminal case, including, but not limited to, a law enforcement agency or a prosecuting attorney, shall maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime as provided in this Code section. . . .
(Emphasis supplied.)
“Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.” (Footnote omitted.) Chase v. State,
(b) The State did not violate Davis’s due process rights when it destroyed the biological material.
To determine if a defendant’s due process rights have been violated where, as here, the lost evidence could have been exculpatory, but where it is not known that the evidence would have been exculpatory, this Court considers whether the evidence was constitutionally material and whether the [State] acted in bad faith. Evidence is constitutionally material when its exculpatory value is apparent before it was lost or destroyed and is of such a nature that a defendant would be unable to obtain other comparable evidence by other reasonably available means.
(Citation omitted.) Mussman, supra,
Here, while Davis may not have been able to obtain comparable evidence, the biological material could not be considered constitutionally material because it had no apparent exculpatory value at the time the State received it. Notably, the evidence shows that the biological material from K. C.’s abortion was contaminated by formaldehyde. The fetal sample thus had no exculpatory value because no DNA could be extracted from it.
Even assuming that the destroyed evidence was constitutionally material, there is no evidence that the State engaged in bad faith. The private clinic’s contamination of the sample cannot be attributed to the State. See State v. Brady,
2. Davis contends that the trial court erred in charging the jury on the burden of proof, specifically, the court’s instruction that “the burden shifts to the defendant to prove innocence.” We disagree.
With regard to the burden of proof, the trial court instructed the jury as follows:
This defendant enters upon the trial of this case with the presumption of innocence in his favor. This presumption remains with the defendant until it is overcome by the state of the evidence which is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the offense or offenses charged.
No person shall be convicted of any crime unless and until each element of a crime is proven beyond a reasonable doubt. The burden of proof rests upon the [Sjtate to [prove] every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt. . . .
There is no burden of proof upon the defendant whatever, and the burden shifts to the defendant to prove innocence. However, the [Sjtate is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.
A reasonable doubt means just what it says. It is the doubt of a fair-minded, impartial juror, honestly [seeking the truth]. It is a doubt based on common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given. And that doubt may arise from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or any combination of these elements.
If, after giving consideration to all these facts and circumstances of the case your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law and you should acquit the defendant. But, if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant. If the [S]tate fails to prove the defendant’s guilt beyond reasonable doubt, it would be your duty to acquit the defendant.
After the trial court finished its instructions, D avis reserved his right to object to the jury charges.
It is axiomatic that no burden is ever placed on a criminal defendant to establish innocence, and charges which place any burden of persuasion upon the defendant in criminal cases shall not be given, and such charges will be deemed erroneous and subject to reversal, absent harmless or invited error.
(Punctuation and footnote omitted.) Bridges v. State,
Here, the trial court properly instructed the jury during its oral instructions that Davis was presumed innocent; that the presumption of innocence remained in place until the State overcame the presumption by convincing the jury beyond a reasonable doubt that Davis was guilty; and that, if the State did not prove guilt beyond a reasonable doubt, then the jury was required to acquit Davis. The trial court also repeatedly instructed the jury that the State bore the burden of proving each element beyond a reasonable doubt. Moreover, the written charge correctly stated the law and was sent out with the jury. See Llewellyn v. State,
3. In his last enumeration of error, Davis contends that his trial counsel was ineffective.
In order to prevail on a claim of ineffective assistance, [Davis] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Davis] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Davis] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unlessclearly erroneous; the lower court’s legal conclusions are reviewed de novo.
(Citations and punctuation omitted.) Hampton v. State,
(a) Davis contends that trial counsel was ineffective in failing to investigate alternate sources of K. C.’s pregnancy, vaginal bleeding and other injuries. We disagree.
Davis testified at trial that he did not touch K. C. in a sexual way. He also testified that he did not know how K. C. was injured, why there was male DNAin her vagina, or what happened to her after she left his home. The defense theory of the case was that K. C.’s version of events was inconsistent and that she was impregnated in early March, after Davis’s arrest. At the hearing on Davis’s motion for new trial, trial counsel testified that the defense theory was that K. C.’s testimony was not credible in light of the fact that there was no DNA evidence connecting Davis to the crime. Trial counsel testified that he did not investigate alternate sources of injury or pregnancy because the theory of the case was simply that Davis had not attacked K. C.
The Rape Shield Statute provides that “in any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination[.]” (Citations and punctuation omitted.) Brown v. State,
The [Rape Shield Statute] is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. . . . Where, however, evidence of sexual activity between the victim and persons other than the defendant has been relevant on some issue..., we have allowed its admission by creating exceptions to the Rape Shield Statute ... when the State introduces medical evidence which indicates that the child has been sexually abused[.]
(Citation, punctuation and footnote omitted.) Williams v. State,
Here, trial counsel’s strategy was to show that K. C. was not credible and was impregnated after the rape. “This Court will not, with benefit of hindsight, second-guess defense trial strategies therein. Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation omitted.) Ellicott v. State,
(b) Davis also contends that trial counsel erred in failing to exclude the evidence of K. C.’s pregnancy. Again, we disagree.
At the hearing on Davis’s motion for new trial, trial counsel testified that his trial strategy was to show that, based on the doctor’s testimony regarding the age of the
Moreover, as set forth above, even assuming trial counsel was deficient in failing to exclude the evidence regarding K. C.’s pregnancy, there is no reasonable probability that the jury’s verdict would have been different in light of the overwhelming evidence of Davis’s guilt.
(c) Davis also contends that trial counsel was ineffective in failing to object to the prosecutor’s closing argument. We discern no error.
During closing argument, the prosecutor said that K. C.’s bleeding was evidence of injury. The trial court instructed the jury that counsels’ closing statements were not evidence and that the case was to be decided on the facts in evidence, and “qualified jurors under oath are presumed to follow the instructions of the trial court.” Allen v. State,
(d) Finally, Davis contends that the cumulative effect of trial counsel’s errors prejudiced him. “[W]e evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors.” Bulloch v. State,
In sum, the State did not improperly destroy evidence, the trial court did not err in instructing the jury, and trial counsel did not render ineffective assistance.
Judgment affirmed.
Notes
Prior to trial, the trial court granted Davis’s motion to sever additional charges of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)) and possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (1)). The State nolle prossed a charge of cruelty to a child (OCGA § 16-5-70).
Jackson v. Virginia,
Even if the fetal sample had some slight evidentiary value, that is, assuming it could show the age of the fetus, such evidence would have been cumulative to the doctor’s testimony and does not rise to the level of material exculpatory evidence. See Krause v. State,
Since Davis reserved his right to object, he preserved this error for appeal. See Baptiste v. State,
In its order denying Davis’s motion for new trial, the trial court noted that neither counsel specifically objected to the instruction on the burden of proof and the error may have been a transcription error rather than a misstatement in the charge.
Davis also asserts that trial counsel’s testimony at the new trial hearing was not credible. However, the trial court was authorized to find credible trial counsel’s explanation that the decision was tactical. See Kilpatrick v. State,
Effective January 1, 2013, the Rape Shield Statute is codified at OCGA § 24-4-412.