Dickerson v. State

• Decision Date: 03 December 1999
• Docket Number: No. A99A1432.,A99A1432.
• Citation: 526 S.E.2d 443,241 Ga. App. 593
• Parties: DICKERSON v. The STATE.
• Court: Georgia Court of Appeals

526 S.E.2d 443

241 Ga. App. 593

DICKERSON v. The STATE.

No. A99A1432.

Court of Appeals of Georgia.

December 3, 1999.

Reconsiderations Denied December 17, 1999.

Certiorari Granted March 10, 2000.

Chandler & Britt, Walter M. Britt, Buford, Deborah F. Weiss, Atlanta, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Cari K. Johanson, Assistant District Attorneys, for appellee. BARNES, Judge.

Following a jury trial, Rufus Dickerson was convicted of rape and sentenced to 18 years. He appeals, alleging the trial court erred in denying his motions to suppress DNA evidence, to compel a witness's criminal history, for mistrial, and for recusal. For the reasons that follow, we affirm.

Construed to support the verdict, the evidence presented at trial showed that Anthony Penix hosted a party one evening to watch the Holyfield-Tyson fight. Approximately 15 people attended the party, including Rufus Dickerson. Around midnight, Penix's fiancée, A.H., returned home from work. The party ended around 1:30 or 2:00 a.m., and Penix invited Dickerson to stay on the couch since he had been drinking. A.H. testified that around 2:25 a.m., she went to sleep in her son's bedroom, leaving Penix and Dickerson on the couches in the den.

A.H. further testified that she awoke to find Dickerson on top of her with his penis in her vagina. She asked "what the hell he was doing" and punched him in the face, but "his motions got continually faster." After A.H. screamed for her fiancé, Dickerson slid off the bed, pulled up his pants, and ran out the door. Penix, who was awakened by A.H.'s screams, yelled after Dickerson, who was getting into his car, but Dickerson did not stop.

A.H. called the police, and after they arrived she gave a description of Dickerson and his vehicle. A police officer picked up Dickerson and brought him back to the house, where A.H. identified him. A.H. went to the Rape Crisis Center, where nurses performed a physical examination that uncovered no signs of physical or sexual trauma.

The police took A.H.'s bed sheets for testing. After receiving a lab report verifying that the sheets contained DNA, the investigating officer secured a search warrant to obtain Dickerson's blood for comparison DNA testing. A DNA analyst at the State Crime Lab testified that the DNA in Dickerson's blood matched DNA in the sperm found on the bed sheets. The DNA section manager testified that the odds the sperm came from someone other than Dickerson were one in one hundred billion for the African-American population.

1. In his first assertion of error, Dickerson contends the trial court erred in not suppressing the DNA evidence because the search warrant affidavit did not contain sufficient probable cause to show Dickerson had committed the rape, did not state that relevant material evidence would be found in the search, and did not state that the method used to secure the evidence was safe and reliable. He further contends that the magistrate violated his right to counsel by issuing the search warrant ex parte.

" On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made. The trial court's findings must be adopted unless determined to be clearly erroneous." (Punctuation omitted.) Culver v. State, 230 Ga.App. 224, 227(1), 496 S.E.2d 292 (1998), citing Bickley v. State, 227 Ga.App. 413, 414(1)(a), 489 S.E.2d 167 (1997).

In determining whether sufficient probable cause existed for a magistrate to issue a search warrant, we apply the "totality of the circumstances" analysis set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Quoting Gates, the Supreme Court of Georgia held:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Punctuation omitted.) State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984). "Before a warrant may issue, the issuing magistrate must have sufficient reasons to believe that a crime was committed, that the items sought are connected with the crime, and that the items sought will be found in the place to be searched." (Citations and punctuation omitted.) State v. Toney, 215 Ga. App. 64, 65, 449 S.E.2d 892 (1994).

Here, the investigating officer presented to the magistrate a search warrant affidavit that included A.H.'s description of the alleged rape and of her attacker and statements by A.H. and Penix identifying Dickerson as the attacker. The affidavit specifically stated that "the person of Rufus Joe Dickerson, Jr." was to be searched for "blood as evidence in the crime of rape." Thus, contrary to Dickerson's argument, the facts presented in the officer's affidavit were sufficient to establish probable cause that Dickerson committed the crime and also specified the material evidence to be collected.

Finally, Dickerson argues the trial court erred in not suppressing the DNA evidence because he was denied his right to counsel when his blood was drawn. He argues that, because the search warrant was issued post-indictment, it constituted a critical stage in his criminal prosecution that triggered his right to counsel. However, we have held that "neither the presence of appellant's counsel nor appellant's consent is required for the execution of a warrant calling for the seizure of hair, blood or other body fluids." Johnson v. State, 179 Ga.App. 467, 468(4), 346 S.E.2d 903 (1986). Thus, the trial court did not err in denying Dickerson's motion to suppress.

2. Dickerson also contends the trial court erred by denying his motion to compel and thus allowing into evidence the unimpeached testimony of a State witness. Dickerson maintains that under OCGA § 17-16-8(a), the State must provide to defense counsel the birth dates of all its witnesses. Dickerson argues that, because he did not receive the birth date of a witness until shortly before trial, he could not retrieve her criminal records until after the trial ended. Those records revealed the witness was previously convicted of a crime of moral turpitude, and therefore her testimony would have been impeachable. The prosecuting attorney stated that he gave Dickerson all the witness information the State had in its possession. After much consideration, the trial court held the State could not be compelled to produce information not within its possession and denied Dickerson's motion to compel.

Because Dickerson did not request a continuance at that point, he has waived his right to argue that the trial court erred in allowing the State's witness to testify. See Day v. State, 188 Ga.App. 648, 650-651(8), 374 S.E.2d 87 (1988). But for that waiver, we would reverse this conviction, as discussed by the special concurrence, based on the State's failure to meet its mandatory discovery obligations with the resulting harm to the defendant.

3. Dickerson further contends that the trial court erred by denying the motion for mistrial he made after the judge commented on a witness's statement. During Dickerson's cross-examination of a State witness, the State objected to the hypothetical posed, on the ground that the assumptions given were not in evidence. In response to the State's objection, the trial judge said:

The jury heard the testimony, and the jury recognized whatever the testimony was. I don't think there is any testimony before this court that there were ten ounces of Cognac consumed, I don't—or alcohol. I don't think that's what he said. I think he said probably a ten ounce glass.... As mixed drinks, but he thought....

Dickerson objected and moved for a mistrial under OCGA § 17-8-57, which provides: "It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." The trial court denied the motion, explaining that its statement did "not amount to improper judicial comment which goes to the guilt or innocence of the accused. It merely represented the Court's recollection of the evidence with regard to a hypothetical."

The trial court then offered to give a curative instruction, which Dickerson declined. At the end of trial, the court charged the jury that they were the sole determiners of the evidence, and that no ruling or comment by the court during the trial was intended "to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant."

"Remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence." (Punctuation omitted.) Johnson v. State, 234 Ga.App. 58, 59(1), 506 S.E.2d 212 (1998), citing McGinnis v. State, 258 Ga. 673, 675(4), 372 S.E.2d 804 (1988). Here, the trial judge properly ruled on the State's objection to a hypothetical on the ground that the assumptions given were not in evidence. Even assuming the trial judge's comments were opinions as to what had been proven in the case, OCGA § 17-8-57 does not extend to colloquies between the judge and counsel regarding the admissibility of evidence. Rowe v. State, 266 Ga. 136, 139(2), 464 S.E.2d 811 (1996); Johnson v. State, supra, 234 Ga. App. at 59, 506 S.E.2d 212. We find no error in the trial court's denial of Dickerson's motion for mistrial.

4. In his fourth assertion of error, Dickerson argues that the trial court erred in denying his motion for disqualification and...