Leonard v. State, S98A0621.

• Decision Date: 05 October 1998
• Docket Number: No. S98A0621.,S98A0621.
• Citation: 269 Ga. 867,506 S.E.2d 853
• Parties: LEONARD v. The STATE.
• Court: Georgia Supreme Court

506 S.E.2d 853

269 Ga. 867

LEONARD v. The STATE.

No. S98A0621.

Supreme Court of Georgia.

October 5, 1998.

George O. Lawson, Jr., Alton Hornsby, III, Lawson & Thornton, P.C., Atlanta, for Walter Laparker Leonard.

William T. McBroom, III, Dist. Atty., Daniel A. Hiatt, Asst. Dist. Atty., Griffin, Hon. Thurbert E. Baker, Atty. Gen., Allison Beth Goldberg, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

HINES, Justice.

Walter L. Leonard appeals his conviction and sentence for malice murder in connection with the death of Beverly Eller.¹ For the reasons that follow, we affirm.

Eller was found dead on the morning of December 23, 1988, inside her apartment in Griffin. She had been stabbed repeatedly; the stabbing apparently occurred in her bedroom, although she was found near the door to the apartment. There were considerable bloodstains in Eller's bedroom. An empty beer bottle had rolled along the floor near the foot of Eller's bed. It was stained with blood and, in rolling, left a trail blood on the floor, rolling over a coat hanger and coming to rest next to a pajama top on the floor; the matching pajama bottom was on the center of the bed. A bottle cap consistent with the beer bottle was found in the kitchen garbage; there was no other sign of alcoholic beverages in the apartment.

A plastic soda bottle was found atop Eller's kitchen garbage can. Next to the soda bottle was a discarded can of cinnamon rolls; eight cinnamon rolls were in a pan on the stove, and a bite had been taken out of one roll. In other respects, the apartment was neatly kept. Laboratory analysis revealed fingerprints on both the beer and soda bottles.

Eller's body was discovered shortly before 8:00 a.m., December 23, when a co-worker arrived to take her to work. She had been seen at approximately 9:00 p.m. the previous night, and her neighbor heard voices in Eller's kitchen at approximately 1:00 a.m. The medical examiner testified Eller died sometime around 2:00 a.m., and may have lived some minutes after the wounds were inflicted.

In 1994, Leonard applied to work at a state prison and he was required to supply his fingerprints. A routine comparison revealed that Leonard's fingerprints matched those taken from the bottles in Eller's apartment. Hair samples were taken from the crime scene, and although Leonard could not be identified or excluded as the source of the hair, the samples were consistent with a person of Leonard's African-American ethnicity.

In December, 1988, Leonard lived in Cordele. A United States Army recruiter testified that sometime in the late 1980's, Leonard was given a bus ticket to Atlanta for the purpose of taking a physical examination for recruiting purposes, and that the arrangements included an overnight stay in a town south of Atlanta, although the recruiter could not remember the town. Leonard's former girlfriend testified that Leonard had taken a bus trip to Atlanta shortly before Christmas in either 1988 or 1989, for a recruiting physical. Eller's apartment was located across the street from the bus station in Griffin.

1. Leonard contends the evidence was insufficient to support the verdict because he was convicted solely on the basis of uncorroborated fingerprint evidence. See Barnett v. State, 153 Ga.App. 430(1), 265 S.E.2d 348 (1980). The evidence against Leonard was entirely circumstantial, and to warrant conviction on such evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save his guilt. OCGA § 24-4-6. Accepting Leonard's premise that the fingerprint evidence is the sole evidence linking him to the crime, to warrant conviction, his fingerprints must have been found in the place where the crime was committed and under such circumstances that they could only have been impressed at the time when the crime was committed. White v. State, 253 Ga. 106, 107(1), 317 S.E.2d 196 (1984).

Leonard's fingerprints were found on the bloodstained beer bottle and on the soda bottle that was resting on the top of Eller's kitchen garbage. The condition of the bedroom and the apartment in general, and the presence of the recently prepared food makes it clear that the bottles were left just before Eller's death. The evidence suggests no occasion for Leonard to have left his fingerprints there except during the crime, and the evidence authorized the jury to conclude that every reasonable hypothesis was excluded except Leonard's guilt. Id. See also Kier v. State, 220 Ga.App. 649, 651, 469 S.E.2d 851 (1996). The evidence was sufficient to enable the jury to find beyond a reasonable doubt that Leonard was guilty of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Evidence collected from the crime scene included vaginal swabbings taken from Eller's body and semen taken from her bed comforter. The State arranged for DNA tests to be conducted comparing those samples to Leonard's DNA, but did not introduce the results of the testing at trial.² Leonard contends he was wrongly prevented from conducting an independent examination of the vaginal and semen samples. See Sabel v. State, 248 Ga. 10, 17-18(6), 282 S.E.2d 61 (1981), overruled on other grounds, Rower v. State, 264 Ga. 323, 325(5), 443 S.E.2d 839 (1994). But that was not the case.

At a hearing on Leonard's motion to examine physical evidence, the prosecutor related that the State's serologist/chemist had stated that, after the performance of the State-directed testing, the material remaining from the victim's vaginal swabbings was insufficient for any further testing. The prosecutor also declared that the serologist/chemist stated that whether there was sufficient material for further testing was a matter of opinion and that Leonard's expert might disagree with her opinion on the matter. The prosecutor suggested that Leonard's expert should examine the samples to determine independently whether enough material existed to perform further testing. The court subsequently ordered that Leonard's expert be given access to certain documents and "actual physical evidence, to the extent that it exists, relative to any DNA testing." However, the defense expert did not examine the swab samples or other DNA material before trial.

At trial, the State's serologist/chemist (the same person with whom the prosecutor conferred before trial) testified on cross-examination that she believed there was sufficient DNA material to conduct further tests.³ Leonard did not move for a continuance, did not request any other action from the court, and did not question the witness on the reason for her change of opinion. Leonard was afforded the pretrial access he requested and the court did not err in failing to give additional relief that was not requested. See Lyon v. State, 262 Ga. 247, 249(3)(a), 416 S.E.2d 523 (1992); Roberts v. State, 259 Ga. 441, 443(2), 383 S.E.2d 872 (1989).

3. Leonard employed a DNA testing expert who reviewed the lab notes and results of the State-directed DNA tests. The court granted the State's motion to exclude the expert's testimony as hearsay. The expert's proffer showed he would have testified that DNA recovered from the comforter showed DNA from two persons other than Eller, and that neither DNA matched Leonard's DNA; one sample matched the DNA of Eller's boyfriend, indicating an unknown person was responsible for the other. A less discriminating DNA test was done on samples retrieved from Eller's body, and Leonard's expert believed the...