Antonio Stewart v. State ( 2020 )

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 13, 2020
In the Court of Appeals of Georgia
A20A1433. STEWART v. THE STATE.
DILLARD, Presiding Judge.
Following trial, a jury convicted Antonio Stewart on a charge of armed
robbery. On appeal, Stewart contends that the trial court erred by allowing a forensic
biologist with the Georgia Bureau of Investigation to testify that DNA evidence
linked him to the crime. Specifically, he argues that such testimony violated his right
to confrontation because the witness at trial was not the same biologist who
performed the testing on the DNA sample. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the evidence shows
that around 5:30 a.m. on November 20, 2012, Pauifi Savea was getting ready to leave
for his job at a nearby chemical plant. As he often did on mornings when the weather
1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
was cold, Savea went outside, started his truck, and went back inside his house to
allow the vehicle to warm up. A few minutes later, as Savea walked outside toward
his truck, two men—one wearing an orange mask, the other one wearing a
camouflage mask, and both armed with shotguns—approached and ordered him to
lay on the ground. Savea complied, at which point one of the men took a book bag
Savea was carrying while the other began searching his truck. Next, the two men stole
Savea’s wallet, which contained $300, as well as his iPhone. Then, after patting him
down further, the men ordered Savea to get up and walk back toward his house.
Initially, Savea complied, but upon hearing the men’s fleeing footsteps, he turned and
saw that they were running toward a vehicle parked on the side of the street. And
determined to prevent their escape, Savea jumped into his still-running truck, pulled
out of his driveway, and blocked the culprits’ vehicle. The two men began yelling at
Savea to get out of the way; and fearing that he was about to be shot, he started
backing up his truck. But a moment later, he stepped on the accelerator and rammed
the culprits’ vehicle, rendering it inoperable. The two men then fled on foot, but due
to the damage from the collision, Savea could not exit his truck quickly enough to
pursue them.
2
Shortly thereafter, two police officers received a dispatch regarding an armed
robbery. And upon arriving on the scene, the officers began taking a statement from
Savea and searching the suspects’ abandoned vehicle. In doing so, the officers
discovered that the vehicle was registered to Shalicia Taylor. They also recovered
several shotgun shells, the packaging for a fleece mask, several types of cards
belonging to a person named Henry Wilkins, and three fairly recent traffic citations
issued to Antonio Taylor. Then, while the investigation at the scene was ongoing, the
officers received a call from one of Savea’s neighbors, who lived a few streets away.
The neighbor informed the officers that—while letting her dogs out that
morning—she found a cap, some gloves, a shotgun, and an iPhone discarded in her
back yard. One of the responding officers then went to the neighbor’s house and
collected the items, which also included a mask, from the place in the yard where they
had been discarded.
That same day, the detective assigned to investigate the robbery learned that
Shalicia Taylor—the apparent owner of the vehicle driven by the culprits—worked
at a local Walmart. The detective went to the retailer and met with its asset-protection
manager to determine if the mask recovered earlier had been purchased there. And
based on a “Universal Product Code” on the mask’s packaging, the asset-protection
3
manager confirmed the mask had, in fact, been purchased at that Walmart store and
the discarded gloves were also purchased as part of the same transaction two days
before the robbery. Additionally, from that same UPC code, the asset-protection
manager determined the time of the purchase and the specific cash register for the
transaction. And, armed with this information, the asset-protection manager provided
the detective with surveillance footage, which showed Stewart as the purchaser of the
items. The detective ultimately arrested Stewart, obtained a warrant to collect a DNA
sample from him, and sent that sample to the GBI, which—following analysis by a
forensic biologist—reported that it matched the DNA samples collected from the
recovered mask.
Thereafter, the State charged Stewart, via indictment, with one count of armed
robbery and one count of possession of a firearm during the commission of a felony.
But prior to trial, Stewart moved to suppress the testimony of a GBI forensic
biologist, who the State was proffering to testify that the DNA evidence linked
Stewart to the crime. Specifically, Stewart argued that such testimony violated his
right to confrontation because the biologist the State was presenting at trial was not
the same forensic biologist who performed the testing on the DNA samples collected
from Stewart and the mask. The State filed a response, and the trial court held a
4
hearing on the issue just prior to the jury being empaneled to try the case. And
following argument from both parties, the court ruled that the GBI forensic
biologist’s testimony regarding the DNA analysis was admissible and, thus, denied
Stewart’s motion to suppress.
The case then proceeded to trial, during which the State presented the
aforementioned evidence. Additionally, the GBI forensic biologist testified regarding
her review of a former co-worker’s analysis of the DNA samples, stating that she
agreed with the former co-worker’s conclusion that the sample taken from the mask
recovered near the crime scene matched the sample collected from Stewart. But
despite allowing this testimony, the trial court excluded the original forensic
biologist’s written report, finding that it constituted hearsay and violated Stewart’s
confrontation rights. In his defense, the only witness Stewart called was his father,
who testified that Stewart was ill on the day of the armed robbery and remained at
home the entire day. Nevertheless, after the close of the evidence, the jury found
Stewart guilty of armed robbery but not guilty of possession of a firearm during the
commission of a felony. Thereafter, Stewart obtained new counsel and filed a motion
for new trial, which the trial court denied after a hearing. This appeal follows.
5
In his sole enumeration of error, Stewart contends the trial court erred in
allowing the GBI forensic biologist to testify that the DNA evidence linked him to the
crime, arguing that such testimony violated his Sixth Amendment right to
confrontation2 because the witness at trial was not the same forensic biologist who
performed the testing on the DNA samples.3 We disagree.
In Bullcoming v. New Mexico,4 the State of New Mexico introduced a forensic
lab report certifying that a DUI defendant’s blood-alcohol concentration was above
the legal limit, but the scientist who generated and signed the report had since been
“placed on unpaid leave for an undisclosed reason,” and the prosecution did not call
2
See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . . .”); see also
Ga. Const. art. 1, § 1, ¶ XIV (“Every person charged with an offense against the laws
of this state . . . shall be confronted with the witnesses testifying against such
person.”).
3
Although Stewart has not challenged the sufficiency of the evidence
supporting his convictions, we have reviewed the record and find the evidence
sufficient to enable a jury to conclude beyond a reasonable doubt that he was guilty
of the crime of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (“Once a defendant has been found
guilty of the crime charged, the factfinder’s role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is
to be considered in the light most favorable to the prosecution.”).
4
564 U.S. 647 (131 SCt. 2705, 180 LE2d 610) (2011).
6
him as a witness.5 Rather, the prosecution called a different scientist who “had neither
observed nor reviewed [the original scientist’s] analysis,” nor reached an independent
conclusion about it.6 As a result, the Supreme Court of the United States ruled that the
“surrogate testimony” of the second scientist was insufficient to satisfy the
Confrontation Clause.7 Nevertheless, Georgia’s appellate courts have “consistently
held that the Confrontation Clause does not require the analyst who actually
completed the forensic testing used against a defendant to testify at trial.”8 And while
the Supreme Court of Georgia expressly recognizes the condemnation in Bullcoming
of “surrogate testimony,” it nonetheless has construed Bullcoming as not requiring
the exclusion of a substitute witness who “is a supervisor, reviewer, or someone else
with a personal, albeit limited, connection to the scientific test at issue.”9
5
Id. at 659 (II).
6
Id. at 655 (I) (B).
7
Id. at 662 (II) (B).
8
Leger v. State, 291 Ga. 584, 592 (5) (732 SE2d 53) (2012); accord Disharoon
v. State, 291 Ga. 45, 46 (727 SE2d 465) (2012); Sanchious v. State, 351 Ga. App.
611, 615 (1) (a) (831 SE2d 843) (2019); Thomas v. State, 342 Ga. App. 310, 314 (2)
(803 SE2d 131) (2017).
9
Disharoon v. State, 291 Ga. at 48 (punctuation omitted); accord Sanchious,
351 Ga. App. at 615 (1) (a); Thomas, 342 Ga. App. at 314 (2); see Leger, 291 Ga. at
593 (5) (holding that because witness was the supervisor of the testing, had
7
In this matter, although the forensic biologist did not directly supervise her
former co-worker’s analysis of the DNA samples, she did conduct an extensive peer
review of that analysis. Indeed, she testified to reviewing all of her former co-
worker’s notes, procedures, and results “at every step.” She further testified to
checking the instrument case files to ensure the controls worked and that her analysis
of the co-worker’s results matched the conclusions he reached in his final report. She
also explained that she conducted this peer review of her former colleague’s work
shortly after his initial analysis. Moreover, she noted that her review was not merely
a rubber stamp but was conducted so as to allow her to reach her own independent
conclusions. Given these circumstances, the reviewing forensic biologist’s testimony
was sufficient to satisfy the Confrontation Clause and not the sort of “surrogate
testimony” forbidden by Bullcoming.10 Accordingly, the trial court did not err in
significant personal connection to the test, interpreted the data, performed the
statistical analysis, and prepared the test report, the witness’s testimony did not run
afoul of Bullcoming).
10
See Leger, 291 Ga. at 592-93 (5) (holding that scientist who did not
personally perform DNA tests, but supervised worker who did, interpreted worker’s
results, and wrote lab report, could testify at trial); Sanchious, 351 Ga. App. at 615-16
(1) (a) (finding that trial court’s admission of testimony from forensic biologist about
the DNA testing performed by different analyst did not violate defendant’s
Confrontation Clause rights because biologist conducted complete peer review of
analyst’s report, including examining analyst’s notes and results but reaching her own
8
ruling this testimony admissible and, therefore, in denying Stewart’s motion to
suppress.
For all these reasons, we affirm Stewart’s conviction and the denial of his
motion for new trial.
Judgment affirmed. Rickman and Brown, JJ., concur.
conclusion); Thomas, 342 Ga. App. at 314-15 (2) (holding that forensic chemist’s
testimony did not violate defendant’s Confrontation Clause rights given that chemist
explained the procedures the first chemist followed, inspected the testing instruments
she had used, analyzed the data, determined the data appeared to be reliable, and
reached her own conclusion regarding the tested substance); Estrada v. State, 319 Ga.
App. 762, 765-66 (3) (738 SE2d 344) (2013) (concluding that supervisor of analyst
who performed lab testing could testify because he reviewed analyst’s work to
determine whether it had been performed correctly and whether he agreed with it).
9