Battle v. State
| Decision Date | 05 September 1985 |
| Docket Number | No. 42098,42098 |
| Citation | 333 S.E.2d 599,254 Ga. 666 |
| Parties | BATTLE v. The STATE. |
| Court | Georgia Supreme Court |
Paul Fryer, Richard A. Epps, Bainbridge, for John Wayne battle.
J. Brown Moseley, Dist. Atty., Bainbridge, Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Staff Asst. Atty. Gen., Atlanta, for the State.
John Wayne Battle was tried by a jury and convicted of murder and burglary with intent to rape. He was sentenced to life plus 20 years, to be served consecutively. 1
Judy Lynn Hanson's body was found in her duplex apartment on the morning of December 14, 1983. Although she had been strangled and had received 2 superficial wounds, the fatal blow was a stab wound over 4 inches deep which pierced her heart and aorta.
The victim's neighbor in the other apartment of the duplex said she had been awakened by the victim screaming and begging "no, no, please don't" at about 5:30 a.m. in the morning but did not call the police. Another neighbor testified that she had seen 2 males passing between her apartment and that of the victim earlier the evening before and also said that the defendant had knocked on her porch door about 12:30 that night, but that she had told him to go away because she had already gone to bed.
Investigation of the crime scene revealed that the perpetrator had most likely climbed up on a trash can and moved an air conditioning unit aside in order to enter a back window of the victim's apartment. Footprints were found beneath the air conditioner and on the trash can outside the window. The body was lying on the living room floor, where it was apparent that a struggle had ensued. Also, the victim's purse had been dumped out on her bed. An empty knife sheath was found. Vacuum sweepings, fingerprints lifted from the crime scene and clothing and swabs taken from the victim were sent to the crime lab for identification and analysis.
Meanwhile, investigators pursued the leads provided by the neighbor, including a visit to the apartment where the defendant was staying located nearby. He was not present. There consent to search the one bedroom apartment was granted by the lessee, Curtis Edwards. Wet black pants and the damp blue jeans underneath them, identified by Edwards as being the defendant's clothes, on a cardboard box in Edwards' closet were seized, along with some wet towels and a wash cloth which had been stuffed behind the water heater. These items were also sent to the crime lab.
The defendant was forcibly arrested for violation of probation and for questioning about the murder at the entrance to his girlfriend's apartment. While being interrogated at the police station, the defendant's shoes were obtained from him. Hair samples and finger and palmprints were also collected.
The crime lab was able to match the shoes with the prints found at the scene; a dog hair collected from the defendant's black pants was determined to be similar to that of the victim's dog; a palm and fingerprint taken from the top of the air conditioner were identified as being the defendant's; and it was found that a pubic hair from the victim's body slip was consistent with the defendant's. Slides were made from vaginal swabs which showed the presence of sperm, but no attempt to identify the samples as coming from the defendant was made.
A cellmate with a lengthy record, awaiting trial for armed robbery, testified to a statement made by the defendant to him sometime in April, 1984, in which the defendant admitted the details of the crimes. According to this witness, the defendant said he entered the victim's unoccupied apartment by moving the air conditioner; after waiting for the victim to return home, he went to the neighbor's house and was told to go away; upon seeing the victim and a male friend return home, he reentered her apartment, finding a sheath knife in the process; after waiting for the victim's male caller to leave, he raped the victim; when she threatened to call police, he strangled her into unconsciousness and then stabbed her with the knife; he then returned to the apartment where he was staying and changed clothes.
Upon this evidence, the jury found the defendant guilty of murder and burglary with intent to rape.
1. Having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found the defendant guilty of burglary and murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The defendant urges as a denial of his due process rights the refusal by the trial court to provide funds for an independent analysis of a pubic hair discovered on the victim's body slip which was compared with similar hair of the defendant. See Sabel v. State, 248 Ga. 10, 17-18, 282 S.E.2d 61 (1981), where we held that "A criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing bound by appropriate safeguards imposed by the court examine critical evidence whose nature is subject to varying expert opinion."
On March 9, 1984, defense counsel filed a motion seeking to have the court appoint experts to examine fingerprints, footprints, hair and fiber. At a hearing on April 17 on several defense motions, counsel announced that he was going with the district attorney to the crime lab in Moultrie to examine the physical evidence and would then make a decision whether to pursue the motion for appointment of experts. The evidence at the crime lab was examined by defense counsel on June 20. A crime lab report dated June 21, finding that the fragment of pubic hair found on the victim was "consistent with" the defendant's pubic hair, was provided to defense counsel on September 26.
On October 30, the defense was shown an enlarged photograph showing the two pubic hairs for comparison. On November 5, the defense renewed its motion for court appointed experts to obtain an expert to examine the hair in question, saying that the enlargement showed a "striking similarity" between the two hairs and that an expert qualified in microanalysis had been located who would conduct the examination for approximately $600, plus expenses of travel from Florida. This motion was denied at a hearing on November 6. 2 Trial was scheduled for, and commenced, on November 12, 1984. At trial the state's expert testified that in his opinion the two hairs were similar in enough of the microscopic characteristics to suggest that they could have had a common origin, or were "consistent with" each other.
Assuming without deciding that the hairs in question were "critical evidence" 3 and "subject to varying expert opinion" within the meaning of Sabel, supra, we find that the renewed motion for the appointment of an expert was not timely. The existence of this evidence was known to the defense at least since June 20. That the hairs were, according to the crime lab report, "consistent" became known to the defense on September 26. Although the enlarged photograph comparing the two hairs may well have had a visual impact damaging to the defense, the enlargement itself was not critical evidence.
A motion for the appointment of an expert must be timely made. Patterson v. State, 238 Ga. 204, 206, 232 S.E.2d 233 (1977). "If the defendant knows or in the exercise of reasonable diligence should know of the existence of potentially critical evidence in the possession of the state, yet fails to move in a timely fashion for its examination, then he or she cannot claim unfair surprise by its introduction at trial." Williams v. State, 251 Ga. 749, 751, 312 S.E.2d 40 (1983). The trial court did not abuse its discretion in overruling the defendant's motion.
Moreover, we find that counsel's failure to timely pursue the motion for appointment of an expert and the trial court's refusal to grant the motion when made was harmless beyond a reasonable doubt in view of the other evidence against the defendant. He was staying in a friend's apartment within 250 feet of the victim's residence and was identified by a witness who recognized his voice as having been at the house next door to the victim's at about 12:30 a.m. on the morning of the murder. His palmprints were found on the victim's window air conditioner which had been moved so as to allow entry into the victim's house. A shoe print in that vicinity was found to be similar to defendant's shoes. A dog hair similar to the victim's dog's hair was found on the defendant's wet pants. Defendant admitted to police that he had knocked on the victim's neighbor's door after midnight and that he had been awake and outside in the early morning hours. A fellow inmate testified to a confession, amply corroborated by physical evidence, made by defendant in which he described his movements on the morning in question and admitted raping, strangling and stabbing the victim. The proof against the defendant was more than sufficient to convict without the pubic hair comparison.
3. The defendant also claims error in the trial court's refusal to suppress the physical evidence and the statement he made when first arrested, claiming the arrest was without probable cause. The physical evidence collected included his fingerprints and palmprints, which were made as routine procedure when he was booked, and the shoes he was wearing, which he relinquished the evening of his arrest on December 14. The hair samples and fingernail scrapings were collected two days later.
The trial court, after a hearing, denied the motion to suppress this physical evidence and the defendant's statement.
The defendant first became a suspect when the victim's neighbor told the police the defendant had knocked at her door after midnight the night of the murder. At the time, one of the officers present at this crime scene interview recalled having talked to the defendant's probation officer, who was looking for him for failing to report to her and for...
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