Crawford v. State , 278 Ga. 95 ( 2004 )

Thompson, Justice.

In 1984 Eddie Crawford was convicted and sentenced to death for the murder of his 29-month-old niece, Leslie English. This first conviction was reversed on appeal to this Court based on an ambiguity in the jury’s verdict. Crawford v. State, 254 Ga. 435 (330 SE2d 567) (1985). Crawford was then retried in 1987, whereupon he was again convicted and sentenced to death. Crawford v. State, 257 Ga. 681 (362 SE2d 201) (1987). Crawford’s subsequent state and federal habeas petitions failed. See Crawford v. Head, 311 F3d 1288 (2002), cert. denied, 540 U. S. 956 (124 SC 408, 157 LE2d 293) (2003). On October 15, 2003, Crawford filed an extraordinary motion for new trial that included a request for DNA testing of certain items not previously tested or used as evidence at his trial. For the reasons set forth below, we conclude that this appeal has been properly classified as an application for discretionary appeal, and we affirm the trial court’s denial of Crawford’s request for DNA testing.

1. Upon the denial of his extraordinary motion for new trial and the denial of his related motion for DNA testing, Crawford filed a notice of appeal in the trial court and a brief in this Court. This Court construed Crawford’s brief as an application for discretionary appeal, granted that application, and granted a stay of execution in order to consider, not only the merits of Crawford’s case, but also any questions concerning the proper form of appeal applicable in such cases.

At least prior to the 2003 amendment of OCGA § 5-5-41 which added subsection (c), the denial of an extraordinary motion for new trial unrelated to an original appeal could only be appealed by the filing of an application for discretionary appeal in the proper appellate court. OCGA § 5-6-35 (a) (7). Crawford argues, however, that he is entitled to a direct appeal of the trial court’s denial of his request for DNA testing based upon the following portion of the recent amendment to OCGA § 5-5-41:

The petitioner or the state may appeal an order, decision, or judgment rendered pursuant to this Code section.

OCGA § 5-5-41 (c) (13). We conclude that this language emphasizes the General Assembly’s intent that the denial of a motion seeking DNA testing made as part of an extraordinary motion for new trial be recognized as an appealable issue, but we also conclude that the filing of an application for discretionary appeal is the proper form of appeal in such a case. Concluding otherwise would yield the absurd result that the denial of an extraordinary motion for new trial would be appealable only as a discretionary appeal while the denial of a motion seeking DNA testing filed as part of that extraordinary motion for new trial would be appealable directly.

2. Crawford contends the trial court erred both by failing to conduct a hearing on his request for DNA testing and by denying that request for DNA testing. We disagree with both contentions.

(a) The newly-adopted DNA testing statute requires a trial court to conduct a hearing only if a defendant’s motion “complies with the requirements of paragraphs (3) and (4)” of the statute. OCGA§ 5-5-41 (c) (6) (A). The trial court found that Crawford had failed to comply with the requirement of paragraph (3) that a defendant must show in his or her motion for DNA testing that

[t]he requested DNA testing would raise a reasonable probability that the [defendant] would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case.

OCGA § 5-5-41 (c) (3) (D). Crawford argues that this requirement, along with the other requirements of paragraphs (3) and (4), may be satisfied by a mere assertion in a motion seeking DNA testing that the requirement has been met. Crawford is correct in this argument insofar as it regards paragraph (4), which requires merely that a petitioner “state” that his or her motion for DNA testing is not being made for the purpose of delay and that the request for DNA testing is either being made for the first time or, if made previously in another court, has never been granted previously. OCGA § 5-5-41 (c) (4). These two prerequisites in paragraph (4) are simple matters that require no detailed explanation in a petitioner’s motion. In contrast, however, paragraph (3) requires that the petitioner “show” certain things, including how the possible results of the requested DNA testing would in reasonable probability have led to the petitioner’s acquittal if those hypothetical results had been available at the time of the petitioner’s original trial. OCGA § 5-5-41 (c) (3). Requiring a petitioner to “show” a possible DNA testing result and to “show” the relevance of that hypothetical result is not tantamount to requiring the petitioner to “prove” the hypothetical result will be obtained through actual testing. However, if the DNA testing results hypothesized in a petitioner’s motion, even when assumed valid, would not in reasonable probability have led to the petitioner’s acquittal if those results had been available at trial, a hearing on the petitioner’s motion requesting DNA testing would be unnecessary.

(b) Upon our review of the trial record and the record of Crawford’s extraordinary motion for new trial, we conclude the trial court did not err in concluding that Crawford’s motion for DNA testing failed to set forth a showing that the requested DNA testing might have yielded results that in reasonable probability would have led to his acquittal if those results had been available at his original trial. We find that the trial court, after referencing discussions of Crawford’s requests for DNA testing in other courts under other legal standards, properly weighed Crawford’s hypothesized DNA testing results against the overwhelming evidence actually presented at Crawford’s trial under the proper Georgia statutory standard. See OCGA§ 5-5-41 (c) (3) (D).

The evidence at Crawford’s trial clearly supports the following synopsis of the events surrounding Leslie English’s murder. On the evening leading up to the murder, the victim and a number of her cousins were being watched by their grandfather as some of the adults in the family spent the evening at a social club. Crawford arrived at the social club and asked his estranged wife to dance with him. When she refused, Crawford grabbed her shirt and was ejected from the club. Crawford then went to his father-in-law’s home at about 11:30 p.m. and bought and drank beer with the victim’s mother, who was one of his sisters-in-law. The victim’s mother refused Crawford’s invitation for her to spend the night with him, and she then walked to one of her sister’s homes. Crawford confronted the victim’s mother at her sister’s home, stomped his foot on a coffee table, grabbed and shoved the victim’s mother, and yelled “I’ll fix you” as the victim’s mother left. Sometime shortly after 3:00 a.m., the victim’s grandfather observed Crawford walking through the grandfather’s home in the dark while holding a cigarette lighter, an observation that was confirmed later by Crawford’s own statement to police. At approximately the same time, one of Crawford’s brothers-in-law observed Crawford’s automobile pulling up to the victim’s grandfather’s house and then departing shortly afterward.

At some point while Crawford was in the grandfather’s house, Crawford got into bed with two nieces (other than the victim) and a nephew. The nephew testified that Crawford hugged and kissed his sister and then him and made the unusual plea, “Wanda [the victim’s mother’s first name], please don’t tell.” Shortly afterward, the victim was discovered missing from her grandfather’s home. Ultimately, the victim’s partially-unclothed, beaten, and sexually-assaulted body was discovered asphyxiated to death on a wooded roadside.

After the victim’s disappearance, Crawford gave inconsistent statements about his whereabouts to various family members and to investigators. At certain times, Crawford claimed he had slept on a couch in a home belonging to relatives; however, that claim was disproved by one relative’s statement that the relative had been up several times during the night and had not observed Crawford on the couch. Crawford claimed at other times that he had slept in his automobile in front of another relative’s home; however, that claim was disproved by witnesses who were at that home shortly after the victim’s disappearance. A shirt that Crawford had been wearing on the night of the murder was discovered hidden behind a cabinet. The front tail of the shirt was stained with blood in a location consistent with Crawford having raped the victim and having inflicted the injuries noted during the victim’s autopsy. Crawford’s wife identified three items of bed linens that were discovered with the victim’s body as having been taken from Crawford’s home. She also testified that Crawford had cleaned his automobile the day after the murder and that Crawford had removed his socks from his automobile, had placed the socks in a trash bag, and had thrown the bag to the lot across the street. The socks were recovered by law enforcement officers; on them were two head hairs consistent with Crawford’s and a fiber consistent with the carpet in Crawford’s automobile. On the bed linens were a number of hairs consistent with Crawford’s and the victim’s head hairs, a hair consistent with Crawford’s pubic hair, and a fiber consistent with the carpet in Crawford’s automobile. Two hairs consistent with the victim’s head hair were found in Crawford’s automobile. Crawford admitted in a statement to investigators that he remembered having the unresponsive victim in his automobile on the night of the murder and remembered carrying the victim away from his automobile.

Upon our review of the trial evidence, which is summarized above, and of the trial court’s order denying Crawford’s request for DNA testing of items related only peripherally, if at all, to Crawford’s case, we conclude that the trial court did not err in denying Crawford’s request for DNA testing made within his extraordinary motion for new trial. We reach this conclusion because, even assuming the reality of the DNA testing results Crawford has hypothesized, such results would not in reasonable probability have led to Crawford’s acquittal, or to his receiving a sentence less than death, if they had been available at Crawford’s trial. See OCGA § 5-5-41 (c) (3) (D).

3. In light of the foregoing, we hereby dissolve the stay of Crawford’s execution previously entered by this Court.

Judgment affirmed.

All the Justices concur, except Fletcher, C. J., and Benham, J., who dissent.