Harris v. State
| Decision Date | 28 February 1991 |
| Docket Number | No. S90A1110,S90A1110 |
| Citation | 260 Ga. 860,401 S.E.2d 263 |
| Parties | HARRIS v. The STATE. |
| Court | Georgia Supreme Court |
B. Samuel Engram, Jr., Nancy Grey R. Grigg, Perry, Walters & Lippitt, Albany, for Harris.
Britt R. Priddy, Dist. Atty., Albany, Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., State Law Dept., Atlanta, for the State.
Following the death of his four-month-old daughter due to head injuries, appellant was indicted for murder, felony murder, and cruelty to a child, and was convicted of all three. He was sentenced to life imprisonment for murder and to 20 years imprisonment for cruelty to a child, to be served consecutively to the life sentence. No sentence was entered on the conviction for felony murder because that conviction was vacated by operation of law. Wade v. State, 258 Ga. 324(2), 368 S.E.2d 482 (1988). 1
1. Appellant asserts that since the testimony of certain expert witnesses was excluded because of the State's failure to provide the defense with copies of the witnesses' written scientific reports, the State did not bear its burden of proving beyond a reasonable doubt that appellant's daughter died and that she died as a result of criminal conduct on the part of appellant. Our review of the record persuades us otherwise.
Circumstantial evidence which excludes every other reasonable hypothesis save that of the guilt of the accused is sufficient to sustain a conviction for murder. Smith v. State, 250 Ga. 729, 300 S.E.2d 798 (1983). In the present case, there was testimony that paramedics responding to a call that a child had stopped breathing found appellant's daughter without breath or pulse; that she had bruises, contusions, scratches and bite marks on her body, including a bite on her leg so recent that the bruising developed while treatment was underway; that she was transported to a hospital after her heart was started and she was put on a machine to assist breathing; that she had massive retinal hemorrhaging and was brain dead; that severe neurological injuries sufficient to cause death were suffered by the victim; that an autopsy was performed on appellant's daughter; and that appellant's admitted conduct in throwing the victim onto a bed and shaking her would produce the fatal injuries.
It is the rule in Georgia that in review of a criminal conviction, the evidence is viewed in a light favorable to the verdict. [Cit.] The evidence in this case according to our standards and to those set out in Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979), is sufficient to authorize a rational jury to find [appellant] guilty of murder [and cruelty to a child] beyond a reasonable doubt. [Smith v. State, supra 250 Ga. at 730, 300 S.E.2d 798.]
2. In a statement to the police, appellant admitted inadvertently biting his infant daughter three times. After more than three bite marks were found on the victim's body, a search warrant was issued in Dougherty County in November 1988 authorizing the search of teeth in Harris's mouth. See State v. Thornton, 253 Ga. 524, 322 S.E.2d 711 (1984). Harris was taken to Fulton County so that impressions, x-rays and photographs of his teeth could be taken by a dentist there. The fruits of that search were suppressed in July 1989 on the grounds that the magistrate in Dougherty County lacked jurisdiction to issue a warrant to be executed in Fulton County and that the warrant lacked particularity. Two more warrants were issued in August 1989, one in Baker County where appellant was and one in Fulton County where the dentist was. A motion to suppress the dental impressions, x-rays and photographs produced in executing those warrants was denied in November 1989.
Appellant argues that the evidence was subject to suppression because it had previously been suppressed, and that the dentist's testimony should have been excluded on the ground that it was based on evidence which was suppressed. We disagree. The evidence produced in the second search was not the same evidence produced in the first search, there is no showing that the evidence produced in the second search was in any way dependent on the evidence produced in the first search, and the dentist testified that his testimony was based entirely on the results of the second search. We are aware of no authority, and appellant suggests none, which would prohibit a second search under a second warrant. Compare Delaney v. State, 135 Ga.App. 612, 218 S.E.2d 318 (1975). There was no error in denying appellant's motion to suppress or in refusing to exclude the dentist's testimony on this ground.
The warrant issued in Fulton County incorporated the provisions of the Baker County warrant. Appellant contends that the dental impressions, x-rays and photographs produced in the search pursuant to those warrants should be suppressed because the warrants were actually executed by a dentist who was not a peace officer, thus violating the requirement in OCGA § 17-5-24 that warrants "shall be directed for execution to all peace officers of this state." Several appellate decisions deal with the production of evidence through medical or dental procedures. See, e.g. State v. Thornton, 253 Ga. 524, 322 S.E.2d 711 (1984) (); Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973) (); and Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972) (). Although those cases all dealt with the right against self-incrimination and did not expressly address the issue raised here by appellant, they are clear authority for the proposition that the State has the right to obtain evidence from a suspect by means of medical or dental procedures. That being so, it would be unreasonable to suggest that the actual physical gathering of the evidence, utilizing equipment and procedures requiring expert skill and having a high potential for harm to the person being searched, must be done by peace officers. We hold, therefore, that the trial court did not err in denying appellant's motion to suppress on the ground that the search warrant was not executed by a peace officer.
4. Appellant contended at trial and continues to argue on appeal that the dentist's testimony should have been excluded because of the State's failure to provide the defense, pursuant to timely request, with all written scientific reports. Defense counsel asserted that a letter containing the dentist's opinion that the bite marks on the victim matched appellant's teeth was not a sufficient compliance. The trial court, upon the State's assurance that the letter it had supplied defense counsel was the only report generated from the material produced in the second search, overruled appellant's objection. There is no evidence to suggest that there were any reports generated by the dentist with regard to the evidence taken in the second search other than that provided to the defense. Appellant's argument is that he was entitled to a copy of the report based on the evidence produced in the first search and that he was entitled to discovery of all the dental impressions, x-rays and photographs.
As to any report generated as a result of the first search, we have no hesitation in ruling that appellant was not entitled to the report. OCGA § 17-7-211 requires that the defense be supplied with copies of all written scientific reports which will be introduced against the defendant. The report generated as a result of the first search was not a report which was to be introduced against defendant because he had caused it to be suppressed. The dentist testified that his findings which were used at trial were based solely on the material gathered in the second search. Under those circumstances, there was no error in overruling appellant's objection to the dentist's testimony on the ground that the State had failed to supply the defense with a report generated from the suppressed evidence.
Under this court's holding in Williams v. State, 251 Ga. 749(3c), 312 S.E.2d 40 (1983), the dental impressions, x-rays and photographs appellant sought were not discoverable as written scientific reports inasmuch as they did not contain the dentist's conclusions and findings, but had to be interpreted by him to attain significance. The trial court did not err in overruling appellant's objection on that...
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