Appellant Gregory Bernard Simpson appeals from a murder conviction in connection with the stabbing death of Patricia Simmons. 1 He asserts, inter alia, that his trial counsel was ineffective for failing to object to the trial court’s admission of his bloodstained clothes without showing a chain of custody. We find no error and affirm.
Appellant and Simmons had been involved in a troubled relationship. Simmons was living with appellant and his family when appellant began using cocaine. Simmons moved away, and began living with a close friend, Connie Quinn. During this time, Simmons continued to see appellant, who frequently stayed the night at Quinn’s trailer. As appellant’s cocaine addiction worsened, Simmons demanded that appellant either stop using drugs or stop seeing her. Appellant checked himself into a rehabilitation facility, but left two weeks later. From that point forward, appellant began acting aggres sively toward Simmons.
Appellant began going to Quinn’s trailer uninvited, letting himself in against the wishes of Quinn and Simmons. He continued to stay at Quinn’s residence and spent his nights pacing around the trailer, looking through cabinets and drawers, and making noise. During the months preceding Simmons’ murder, both Quinn and Simmons became fearful that appellant would harm them while they slept.
In the days before the murder, tensions between Simmons and appellant escalated dramatically. Appellant broke into the trailer several times and took Simmons’ money. Once, he broke in while Simmons was present and held her in her room at knife-point, prohibiting her from leaving the room. On another occasion, he attempted to rape Simmons, again at knife-point, and cut the phone lines to the house when she tried to call for help. During this period, appellant was heard repeatedly saying, “That’s my baby. If I can’t have her, nobody can have her.” Despite these attacks, and several calls to the police, Simmons refused to seek a protective order against appellant.
When police first located appellant on the night of the murder, he was considered a person of interest in the case, but not yet a suspect. Appellant, who was high on crack cocaine at the time, agreed to go to the police station for questioning. While there, police told appellant that he was free to go if he agreed to let the police inspect his clothes. Appellant agreed and, upon inspection, police found a blood stain on his pants. At that point, appellant was arrested without a warrant, by an unidentified officer, and his clothes were confiscated for testing. Once seized, appellant’s clothes were kept in a brown paper bag which was not sealed and for which no chain of custody was kept. Blood stains on appellant’s clothes matched Simmons’ DNA and DNA found at the scene of the crime was matched to appellant.
1. We find the evidence in this case was sufficient to sustain appellant’s convictions on all counts under
Jackson v. Virginia,
2. Appellant first asserts that the arresting officer did not have probable cause to arrest him, and therefore, the statements appel
lant made at the police station and the bloody clothes seized from him should have been suppressed. In evaluating the legality of a warrantless arrest, we need only to ask whether the arresting officer had “probable cause to believe that a criminal offense has been or is being committed.”
Devenpeck v. Alford,
In this case, because the arresting officer was unknown, we cannot find probable cause unless we can attribute it to any officer that could have made the arrest. The record shows that, on the night of Simmons’ murder and appellant’s arrest, every uniformed officer in the city was briefed on appellant’s acts of violence toward Simmons in the prior few days, as well as statements made by Quinn in a 911 phone call that blamed appellant for killing Simmons, and reports that a person fitting appellant’s description was seen angrily banging on Simmons’ door shortly before the murder.
“Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.”
Devega v. State,
3. Appellant next claims that his federal and state rights against self-incrimination were violated because he was required to turn over his clothes to the police for inspection. Under the Federal Constitution, the protections of the right against self-incrimination are limited to being compelled to testify as “a witness against himself.” Fifth Amendment, United States Constitution. This has been interpreted to apply only to “evidence of a testimonial or communicative nature,” and not a “comp[ulsion] by the State to produce ‘real or physical evidence.’ ”
Our State Constitution, however, extends this protection further. We have held that the right not to produce evidence against oneself included the right not to be compelled in “the doing of an act against [one’s] will to incriminate” oneself. (Punctuation omitted.)
Creamer v. State,
Here, appellant did not perform any act against his will to incriminate himself. On the contrary, he surrendered his clothes when asked to do so. Moreover, as we discussed in Division 2, the police were entitled to seize the clothes, which were in his immediate possession, because he had already been lawfully arrested.
Eberhart v. State,
4. Appellant also claims that the clothing seized from him upon his arrest was fungible and that the State should have been barred from introducing that clothing into evidence without proving the chain of custody. However, trial counsel did not object to the admission of appellant’s clothing during trial. Therefore, “[o]n this point, we make no decision, not because we think it formidable, but because the court below, so far as we are informed by the record, did not pass upon it.”
Jennings v. William W. Wright & Co.,
5. In a tangential claim, appellant asserts that his trial counsel was ineffective for failing to object to the admission of his clothing at trial after a motion to suppress the clothing had been denied.
The standard for evaluating the constitutional effectiveness of counsel was laid out in
Strickland v. Washington,
We need not determine whether the failure to raise a chain of custody objection amounts to deficient performance under
Strickland,
supra, because appellant has not made the requisite showing of
prejudice — i.e., a
reasonable probability
that the outcome of the trial would have been different.
Coleman v. State,
6. At trial, appellant’s counsel requested the following charge:
Whether chain of custody is properly maintained does not go toward the admissibility of the evidence, that is, a chain of custody objection is not proper and can not be used to keep evidence from being admitted at trial.
However, you may consider whether chain of custody was properly maintainedwhen deciding what weight, if any, to give the evidence presented.
The refusal to give a requested instruction will not be deemed reversible error unless the refused request is “a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given. [Cits.]”
Pruitt v. State,
7. In his motion for new trial, as in this appeal, appellant raised a claim that trial counsel was ineffective for failing to obtain an expert witness who could testify about the DNA and bite mark evidence gathered at the crime scene. In support of his motion, appellant also requested funds to employ an expert to show that he was prejudiced as a result of trial counsel’s failure to acquire such experts. The trial court denied appellant’s request for funds at the hearing on the motion for new trial.
At that hearing, trial counsel testified that, as part of his intended trial strategy, he planned to argue that the DNA evidence on appellant’s clothing was the result of mishandling or deliberate tampering. Trial counsel also specifically mentioned that he had made a strategic decision to argue that the saliva collected from the victim’s breast and hip, and the bite mark on her hip, were merely indicia of the victim’s consensual intimate relationship with appel lant and did not identify him as her attacker. Thus, in reaching appellant’s claim that trial counsel was ineffective in failing to use such an expert, we can simultaneously resolve the claim that he was wrongfully denied funding to obtain expert testimony.
It was trial counsel’s strategy to explain away the blood and saliva evidence and the bite marks on the victim rather than directly challenge the findings of the State’s expert witness or deny that it was appellant’s blood or saliva that were found. Because this trial strategy is objectively reasonable, appellant failed to meet his burden under Strickland. It follows that the trial court did not err in refusing to provide funds for expert testimony at the motion for new trial hearing.
8. In his final enumeration of error, appellant alleges that trial counsel was ineffective in failing to effectively impeach Quinn, the State’s key witness. Again, this is evaluated under the Strickland test as detailed in Division 5, supra.
Here, trial counsel did highlight a number of misstatements and inconsistencies in Quinn’s testimony during cross-examination. However, appellant asserts that: (1) Quinn’s testimony that appellant had cut the phone lines to her trailer could have been impeached by introducing Quinn’s phone records, which clearly showed calls both originating from and received at Quinn’s residence during the time the phone lines were supposedly out; (2) Quinn’s testimony that Simmons had no other boyfriends at or immediately before the time of the murder was contradicted by statements that Quinn had made to the police at the time, including the names of specific individuals; and (3) Quinn testified that she had been told by police that she was not able to get a warrant to keep appellant off of Quinn’s property without Simmons’ consent, which contradicted testimony by police officers who claimed to have told Quinn that she could also take out a protective “warrant” against appellant. Appellant asserts that trial counsel’s failure to raise these three additional points amounted to an ineffective impeachment of Quinn.
This presents a situation similar to that in
Weathers v.
State,
Judgment affirmed.
Notes
The crimes occurred on March 6, 2007. On May 30,2008, a McIntosh County grand jury indicted appellant with one count each of malice murder, aggravated assault, and felony murder in the commission of an aggravated assault. Appellant’s trial commenced September 28, 2009, and ended with a jury verdict finding him guilty on all counts. Appellant was sentenced to life in prison for malice murder; the remaining counts were merged and vacated by operation of law.
Malcolm v. State,