Redding v. State

• Decision Date: 06 November 1995
• Docket Number: No. A95A1829,A95A1829
• Citation: 219 Ga.App. 182,464 S.E.2d 824
• Parties: REDDING v. The STATE.
• Court: Georgia Court of Appeals

Page 824

464 S.E.2d 824

219 Ga.App. 182

REDDING v. The STATE.

No. A95A1829.

Court of Appeals of Georgia.

Nov. 6, 1995.

Reconsideration Denied Nov. 29, 1995.

William T. Hankins, III, Decatur, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, Decatur, for appellee.

ANDREWS, Judge.

Redding appeals from a judgment entered on a jury verdict finding him guilty on 13 of 14 counts of rape, aggravated sodomy, aggravated assault, burglary, robbery, armed robbery and possession of a knife. This is the third appearance of this case in our court, and the procedural history is an involved one. Redding was first indicted in 1988 for the rape and robbery of C.W. on September 29, 1987. Redding filed a motion to suppress evidence obtained in that case, and the trial court denied it. Redding appealed, and we remanded the case to the trial court to review certain misstatements and omissions in the affidavit submitted to obtain the search warrant. Redding v. State, 192 Ga.App. 87, 383 S.E.2d 640 (1989). On remand, the trial court granted the motion to suppress. Redding was then re-indicted for the offenses involving C.W. and for additional offenses occurring during the rape of H.B. Redding's trial in August 1991 on the H.B. counts ended in a mistrial. Redding was indicted a third time for these same offenses and filed a motion for judgment of acquittal based on OCGA § 17-7-53.1. The trial court denied the motion and we affirmed. Redding v. State, 205 Ga.App. 613, 423 S.E.2d 10 (1992). In March 1994, the trial court affirmed its earlier ruling that the DNA evidence in the H.B. case was admissible and ruled some of the new DNA evidence in the C.W. case admissible and some not admissible.

Redding was convicted, and the trial court sentenced him to five life sentences plus 40 years. Redding now appeals the trial court's denial of his motion for new trial.

1. In his first enumeration of error, Redding contends that the trial court erred in denying his Batson challenge to the striking of a black juror. Redding argues that the State's explanation for striking the juror, that the juror was unemployed, is not a sufficient reason under Batson. However, the State gave several race-neutral reasons for striking the juror. The juror's sister had been charged with felony assault offenses. Another sister had just left the DeKalb Police Department under circumstances which suggested there may have been bad feelings. Further, the juror was friends with another juror who had been charged with child molestation and sexual assault and was struck for cause because he was a convicted felon.

Thus, we find that the prosecutor gave sufficient race-neutral reasons for striking this juror to warrant the trial court's denial of Redding's Batson challenge. Accordingly, this enumeration of error is without merit.

2. Second, Redding argues that the evidence fails to support the verdict. On appeal, this court determines the sufficiency and not the weight of the evidence. Lattimore v. State, 203 Ga.App. 259, 260, 416 S.E.2d 829 (1992). Further, the evidence must be viewed in the light most favorable to the jury's verdict, and Redding no longer enjoys a presumption of innocence. Palmore v. State, 213 Ga.App. 140, 141, 444 S.E.2d 581 (1994). Accordingly, the evidence at trial was as follows. Around 7:00 a.m. on August 4, 1987, just as it was getting light, H.B. awoke to find a black male with a knife hovering over her. She was able to see him for approximately ten seconds and then he told her to close her eyes and keep them closed. H.B.'s two-year-old daughter and five-month-old son were also in the room with her. The man forced her to orally sodomize him and raped her. H.B. testified that the man smelled of beer. After he raped her, the man demanded money. H.B. described her attacker as being between five feet, eight inches and five feet, ten inches tall, weighing 135 to 150 pounds, with a moustache and thin short hair, wearing a red t-shirt with black writing on it and having a large amount of body hair.

On September 29, 1987, C.W., who lived two-tenths of a mile from H.B., was awakened in the early morning by someone taking her cover off and kicking her ankle. C.W. jumped out of bed, and the man put his arms out to keep her from running out of the room. C.W. testified that the man smelled of beer. She decided to fight and hit her attacker in the groin. The man beat her until she stopped struggling. He repeatedly forced her to orally sodomize him and raped her several times. After the rape, the man demanded money and left after pulling her phone out of its socket and taking the money in her purse.

H.B. gave police information as to the general description of her attacker but told them she would not be able to identify him because she had not seen him clearly enough. C.W. stated that she thought she would be able to identify her attacker. She gave police information for a composite sketch, and the detectives from the Decatur Police Department thought the composite resembled Redding. In addition, C.W. described her attacker as having a scar, and Detective Rosser discovered that Redding had a scar on the left side of his stomach and a scar down the middle of his stomach. Further, Redding lived in the same neighborhood as C.W. and H.B., approximately four-tenths of a mile from C.W.

When C.W. was driving through the neighborhood with detectives in an attempt to identify her attacker, the detectives spotted Redding at a convenience store. They called Redding over to the car. C.W. told the detectives that Redding was not the man who attacked her, but she got scared when she heard his voice. She told the detectives that Redding's head and body were the exact shape as the rapist's.

The forensic evidence introduced at trial showed that hair matching that of Redding's was found in the pubic combings of the two victims and on the bed sheets. There was expert testimony that the DNA isolated from the H.B. rape kit matched the DNA isolated from Redding's blood. There was also expert testimony as to the DNA match between Redding's blood and the sperm found on C.W.'s sheet and in C.W.'s rape kit. Further, Redding matched the physical description given by both victims. In addition, Redding had a scar similar to the one C.W. described to police. Accordingly, for the reasons discussed above, we find that the evidence was sufficient to authorize a rational trier of fact to find Redding guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Redding also appeals the trial court's denial of his motion to sever the H.B. case from the C.W. case. The facts in the two cases, as discussed above, are so similar that even if the two cases had been severed, each would have been admissible in the other case as evidence of a similar transaction. See Byars v. State, 198 Ga.App. 793, 794, 403 S.E.2d 82 (1991) (rule allowing similar transaction evidence has been liberally extended in sexual offense cases). Accordingly, "[w]here the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying (the) motion for severance." (Citation omitted.) Weaver v. State, 206 Ga.App. 560, 561, 426 S.E.2d 41 (1992). Therefore, the trial court did not err in denying the motion to sever.

4. Redding claims that evidence of DNA matching was improperly admitted. Specifically, Redding objects to: 1) the evidence allowing the use of a monomorphic enzyme probe to correct for band shifting, thus allowing the State's witness to testify that there was a match of otherwise non-matching DNA; 2) the admission of improper statistical procedures and 3) the admission of the results of the DNA matching tests because improper execution of laboratory techniques and human error caused these results to be unreliable.

In this case, two different laboratories conducted the testing of the DNA evidence admitted. Lifecodes performed the RFLP (restriction fragment length polymorphism) test of the evidence gathered in the H.B. case, and Genetic Design performed the PCR (polymerase chain reaction) tests in both the C.W. and H.B. cases. Redding complains of the correction for band shifting which occurred in the RFLP test and argues that the PCR technique is not acceptable.

The trial court conducted extensive hearings and listened to testimony from numerous expert witnesses on the issues of admissibility of the DNA evidence, and the court's order on these issues is thorough and well reasoned. We agree with the trial...