Greenway v. State

• Decision Date: 24 February 1993
• Docket Number: No. A92A2290,A92A2290
• Parties: GREENWAY v. The STATE.
• Court: Georgia Court of Appeals

Page 415

428 S.E.2d 415

207 Ga.App. 511

GREENWAY v. The STATE.

No. A92A2290.

Court of Appeals of Georgia.

Feb. 24, 1993.

Richard E. Hicks, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., Jack E. Mallard, Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant Greenway appeals his conviction of five counts of rape, five counts of burglary, and single counts of aggravated sodomy, aggravated assault, criminal attempt to commit burglary, and possession of tools for the commission of crime. Held:

1. Defendant's first enumeration of error challenges the sufficiency of the evidence to authorize his convictions. The argument presented in support of this enumeration of error is directed primarily to the offenses involving just two of the victims.

The State's evidence in regard to four of the victims included expert testimony that the deoxyribonucleic acid ("DNA") of semen samples taken from the victims matched the genetic profile of DNA in a known sample of defendant's blood. An expert testified that the probability of selecting an unrelated individual from the caucasian population who had a genetic profile matching the semen taken from victim M. H. was one of 7,000 or one of 14,000, depending on which of two databases was used. Defendant relies on the fact that such a statistic means he is one of approximately 20,000 individuals in the country whose DNA would match the genetic profile of the semen sample taken from M. H. However, while the State is required to prove defendant's guilt beyond a reasonable doubt, it is not required to establish that fact to a mathematical certainty. Vance v. State, 262 Ga. 236, 237(2), 238, fn. 4, 416 S.E.2d 516. First, we note that the approximation of the number of caucasian individuals with the same genetic profile includes females and individuals of all ages. Secondly, defendant's conviction is not predicated entirely upon the DNA evidence as there is additional circumstantial evidence of his guilt including that showing similar crimes committed by defendant.

In connection with the offenses against victim, M.H., defendant relies upon testimony from a physician that at that time defendant's right arm and hand were immobilized in a splint as a result of surgery, and the absence of any testimony from M. H. regarding her attacker's arm being handicapped. However, the physician also explained that the splint was held in place by an elastic bandage. Thus, defendant could have removed the splint himself.

Defendant also questions whether the State's evidence identifying him as the perpetrator of the crimes against victim T. W. is sufficient. This victim identified defendant from a combination of a photo line-up and from an audiotape of an interview of defendant by police. The absence of DNA evidence as to this victim does not preclude defendant's conviction for the offenses against this victim. The jury was presented with sufficient identification evidence through the testimony of the victim. Lowe v. State, 185 Ga.App. 606, 607(2), 365 S.E.2d 479. Any issues arising from defendant's attempt to impeach this victim were also for resolution by the jury.

As to each of the remaining offenses, defendant was identified as the perpetrator by DNA evidence or visual identification by the victim. A careful review of the entire record in this case reveals that there was ample evidence from which a rational trier of fact could determine the guilt of defendant beyond a reasonable doubt of all of the offenses of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Battles v. State, 205 Ga.App. 510, 512, 422 S.E.2d 672.

2. Defendant enumerates as error the denial of his motion for severance. The defendant's motion sought separate trials as to the charge or charges involving each alleged victim.

"Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752. However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court." Mack v. State, 163 Ga.App. 778(1), 296 S.E.2d 115.

The charges against defendant clearly show a recurring pattern of conduct suggesting a common scheme or modus operandi. Each incident involved the early morning entry or attempted entry of a ground level apartment occupied by a lone female. In each of the incidents that defendant entered the apartment, he entered through a window or sliding glass door and left by the front door, sexually assaulted the victim, and told the victim that he would not be there long and that it would not take long. In most of the incidents defendant had trouble obtaining an erection and masturbated in order to achieve one, used a bandanna or handkerchief to conceal his identity, and possessed a knife. The criminal attempt charge involved a failed attempt to gain entrance, after which defendant was apprehended. Defendant was identified as the perpetrator of all of the offenses by either DNA evidence or the testimony of the victims. The trial court did not abuse its discretion in denying defendant's motion for severance. Exley v. State, 198 Ga.App. 748, 750(4), 402 S.E.2d 798; Seidel v. State, 197 Ga.App. 14, 15(3), 397 S.E.2d 480; Phillips v. State, 160 Ga.App. 345(1), 346, 287 S.E.2d 69.

3. The next enumeration of error complains of the trial court's refusal to strike juror Holt for cause. " ' "In order to disqualify a juror for cause, it must be established that the juror's opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. (Cit.)" (Cit.)' Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717). ' "The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause. (Cits.)" (Cit.)' Scott v. State, 193 Ga.App. 577, 578(2) (388 SE2d 416). 'While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. (Cit.) The trial court has the discretion as to whether to strike a juror for cause. (Cits.) We find no abuse of the trial court's discretion. The court followed the provisions of OCGA § 15-12-164 for setting aside a juror for cause and found that the juror(s) in question could render a fair and impartial verdict.' Lattany v. State, 193 Ga.App. 438 (388 SE2d 23). Accord Ward v. State, 193 Ga.App. 137, 140(8) (387 SE2d 150). We find no abuse of discretion here." Nobles v. State, 201 Ga.App. 483, 487(7), 411 S.E.2d 294.

4. At a pre-trial hearing on defendant's motion in limine seeking to exclude DNA identification evidence, the State moved for the rule of sequestration. Defense counsel responded that the rule was inapplicable since he had only one witness, a DNA expert, whom he desired to use both to assist him in the cross-examination of the State's expert and as the defendant's expert witness. Nonetheless, after some colloquy the trial court ruled that if the defense expert was used to assist defense counsel in cross-examination, he would not be permitted to testify. Thus, defense counsel was compelled to choose whether to use the defense expert to assist in cross-examination or as a witness but not permitted to use him for both purposes. In his fourth enumeration of error, defendant contends that the trial court erred in thereby limiting his use of his expert witness.

Our sequestration statute, OCGA § 24-9-61, requires only that witnesses of the other party be examined out of the hearing of each other. Therefore, no violation of the statute occurs where a witness hears the testimony of the witnesses of the opposing party. Justice v. Kern & Co., 197 Ga.App. 272(2), 273, 398 S.E.2d 223. It follows that the trial court's ruling was not required by OCGA § 24-9-61.

Nonetheless, any resulting error was harmless. The only issue concerning DNA identification raised on appeal concerns the State's expert's assumption that the database used in her calculations was in Hardy-Weinberg equilibrium. Defendant's expert opined that this assumption was erroneous, due to the problem of population substructuring. See Caldwell v. State, 260 Ga. 278, 288(1)(e), 393 S.E.2d 436. Since the State's expert, who testified at the pre-trial hearing, did not present testimony supporting the reasonableness of the assumption of Hardy-Weinberg equilibrium, it appears that defense counsel was not prevented from developing the evidence on any contested issue. In this connection, we should note that the State's evidence as to some aspects of the reliability of DNA identification consisted of certain written exhibits. See Harper v. State, 249 Ga. 519, 525, 292 S.E.2d 389. At trial the State bolstered its evidence on several issues, including whether there was Hardy-Weinberg equilibrium and substructuring, by introducing the testimony of additional expert witnesses and defendant has raised no issues concerning the admission of this evidence at trial or application of the rule of sequestration at trial. Gregg v. State, 201 Ga.App. 238, 239(3)(a), 240, 411 S.E.2d 65.

Defendant also enumerates as error the admission of the State's DNA identification evidence predicated on the assumption of Hardy-Weinberg equilibrium in the population of the database. In Caldwell v. State, 260 Ga. 278, 288(1)(e), 393 S.E.2d 436, supra, the State failed to establish that the population in the database used was in Hardy-Weinberg equilibrium. In the case sub judice, evidence was presented that new developments have...