Ross v. State

• Decision Date: 26 February 1998
• Docket Number: No. A97A1895.,A97A1895.
• Citation: 231 Ga. App. 793,499 S.E.2d 642
• Parties: ROSS v. The STATE.
• Court: Georgia Court of Appeals

499 S.E.2d 642

231 Ga. App. 793

ROSS v. The STATE.

No. A97A1895.

Court of Appeals of Georgia.

February 26, 1998.

Reconsideration Denied April 1, 1998.

Potts & Badaruddin, Shandor S. Badaruddin, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, and John H. Petrey, Assistant District Attorney, for appellee. SMITH, Judge.

Defendant Vertis Ross was convicted by a jury of two counts of rape, two counts of kidnapping, two counts of aggravated sodomy, two counts of armed robbery, violation of the Georgia Controlled Substances Act, and possession of a firearm by a convicted felon. The charges arose from a crime spree in which two young women were kidnapped, repeatedly raped, sodomized, and tortured, but escaped with their lives. He appeals following the denial of his motion for new trial, raising 27 enumerations of error. We affirm.

Construed to support the jury verdict, the evidence at trial showed that at about 9:00 p.m. on July 19, 1994, two young women, N.X. and S.B., were driving out of the parking lot of a fast food restaurant in N.X.'s convertible when they were forced to a stop by Ross and Sammy Rogers. Ross and Rogers pushed their way into the vehicle, held guns to the women's heads, and demanded their money and jewelry. Ross took over control of the vehicle and drove it to Candler Park. During the drive, the victims were forced to disrobe in the car and were fondled by the men. When they reached Candler Park, S.B. was forced to orally sodomize Ross, and then both victims were raped. Next Ross drove the vehicle from Candler Park to the back of an abandoned building where he again raped S.B. Thereafter, he drove to a gas station where he purchased fuel for the car. As he left the station, Ross flashed the car lights at a blue car and pulled up beside it. When asked to identify himself to the occupant of the blue car, Ross used the name "E." Ross left the car with N.X.'s necklace and possibly other jewelry belonging to the victims, walked to the blue car, and returned with a ziplock bag containing crack cocaine.

The victims were then taken to a vacant apartment where they were repeatedly raped, forced to perform oral sodomy, burnt with a cigarette lighter and wax from a birthday candle, hit with a shotgun, and threatened with death. Testimony also indicated that Ross and Rogers smoked crack cocaine throughout the night. Sometime the next day, Ross and Rogers released the victims who were then able to drive their vehicle to S.B.'s mother's home and call the police.

Investigator Angie Marty of the Decatur Police Department was the lead investigator in this case. She met with the victims and drove around with them to see where the events took place. She immediately thought of Ross as soon as she learned the address of the vacant apartment (Ross lived two doors down), found out that one of the perpetrators went by the name "E," and heard details from the victims about the physical description of the perpetrator called "E." Investigator Marty placed Ross's photograph in a lineup, and both victims immediately identified him. Ross also was positively identified by both victims in the courtroom at trial.

After an arrest warrant for Ross and a search warrant for his residence were obtained, officers executed the warrants and found Ross hiding in a closet in his room. Either on his person or in his room, police found N.X.'s purse, as well as S.B.'s jewelry, identification card, telephone bill and pager. Officers also found clothing, shoes, and other personal items belonging to Ross that matched the description given by the victims of what "E" had been wearing. Ziplock bags containing cocaine residue were found in a closet in Ross's apartment. The vacant apartment where the victims had been held also was searched, and the drug paraphernalia, cigarette lighter, and birthday candle described by the victims were found there. Based upon information obtained from Ross's sister, the police arrested Rogers and found jewelry belonging to S.B. on his person. Rogers implicated Ross as the other person involved in the crimes.

Immediately after the incident, the victims were taken to DeKalb Medical Center for a medical examination, and a "rape kit" procedure was performed on each of them. At trial, the results of DNA testing were introduced by the State to support the victims' identification of Ross. Fingerprint, fiber, and hair analyses were not introduced by the State because they failed to connect Ross to the crimes.

Rogers testified for the State at trial after pleading guilty to raping both victims. The jury was made aware of his guilty plea and the life sentences he received on both counts. Rogers's testimony corroborated that of the victims, except he denied ever having a weapon other than the shotgun in his possession. He also testified that he, Ross, Ross's sister and a friend, Kenneth Willis, had smoked marijuana and crack cocaine throughout the evening preceding the kidnapping of N.X. and S.B. He further testified that just prior to the kidnapping, the three men had intended to rob a crack house with a sawed-off shotgun but changed their minds because there were too many people in the area.

Kenneth Willis also testified for the State. He corroborated Rogers's testimony and confirmed that the men had been smoking marijuana and crack cocaine throughout the evening preceding the kidnapping and that the three men had conspired to rob a crack house. Willis also testified that after their robbery plan was thwarted, he dropped both Ross and Rogers off near the restaurant where the victims were kidnapped. Ross told Willis he was going back to the restaurant to get the two women. Ross still had the shotgun in his possession when he got out of the car.

Ross's defense was alibi, and he called several witnesses to testify on his behalf to his whereabouts on the evening in question. He did not present any expert testimony to rebut the State's forensic evidence.

1. Ross raises thirteen different claims relating to ineffectiveness of counsel and argues that each one should be separately analyzed under both the federal and state constitutions. We first note that "[t]here exists no substantial difference in the legal standard to be employed in resolving claims of ineffective assistance of counsel under the United States Constitution and under the Georgia Constitution of 1983. Accordingly, the proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [(1984)]. First, appellant must show that counsel's performance was deficient; second, he is required to show that he was prejudiced by counsel's deficient performance. There is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel's errors, the jury would have had a reasonable doubt regarding appellant's guilt, that is, but for counsel's unprofessional errors, the result of the proceeding would have been different. A trial court's finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous." (Citations and punctuation omitted.) White v. State, 216 Ga.App. 583, 584(1), 455 S.E.2d 117 ( 1995). Keeping these principles in mind, we will now address each of Ross's specific enumerations of error relating to his claims of ineffectiveness of counsel.

Ross first argues he was denied effective assistance of counsel because trial counsel failed to obtain and use an expert in the field of DNA analysis after the trial court had granted a motion for funds for that purpose.

At trial, the GBI Crime Lab's serologist testified that she was unable to use restriction fragment length polymorphism (RFLP) technology to match any of the DNA from N.X.'s or S.B.'s "rape kit" with Ross's DNA due to insufficient DNA samples. Using polymerase chain reaction (PCR) testing, however, she had been able to find DNA that potentially could have been contributed by Ross on at least one item of clothing from each of the victims. She further testified that the frequency of Ross's blood pattern in the black population is one in one hundred. During cross-examination, the State's serologist restated that she had found no match between Ross's DNA and either victim's "rape kit" using RFLP testing. She admitted, that at the request of the State, she had not performed PCR testing on the "rape kit" samples to confirm the RFLP results even though she could have done so. Trial counsel then proceeded to question the serologist about the difference in reliability between PCR testing and RFLP testing and called into question the reliability of the procedures she used to conduct the PCR tests in this case.

Ross contends that trial counsel should have called an independent expert DNA witness to testify at trial that the GBI Crime Lab's PCR testing and test results were unreliable. But Ross failed to introduce any evidence at the hearing on the motion for new trial demonstrating that an independent expert witness would have testified as he claims. "The failure of trial counsel to employ evidence cannot be deemed to be `prejudicial' in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because appellant failed to make any proffer of the uncalled witnesses' testimony, it is impossible for [him] to show there is a reasonable probability the results of the proceedings would have been different. It cannot possibly be said that the [expert witness] would...