Thomas v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Barnes
• Citation: Thomas v. State, 654 S.E.2d 682, 288 Ga. App. 602 (Ga. App. 2007)
• Decision Date: 28 November 2007
• Docket Number: No. A07A1109.,A07A1109.
• Parties: THOMAS v. The STATE.

654 S.E.2d 682

288 Ga. App. 602

THOMAS v. The STATE.

No. A07A1109.

Court of Appeals of Georgia.

November 28, 2007.

Gerard B. Kleinrock, Corrine M. Mull, Decatur, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

BARNES, Chief Judge.

Darryl Thomas appeals his convictions of one count each of aggravated sodomy¹ and simple battery. Thomas contends the trial court erred by denying his chain of custody objection to the admission of DNA test results and his objection to admitting statements the victim made to medical personnel. He also contends the evidence is insufficient to sustain the verdict. Finding no reversible error, we affirm.

Viewed in support of the verdict, the evidence shows that Thomas and the victim were cellmates in the DeKalb County Jail when the incidents giving rise to these charges occurred. Only two prisoners were in each cell. The prisoners are locked down every night, and when locked down, must stay in their cells. Although it is possible for inmates to spend the night in cells other than the one to which they are assigned, no such evidence was presented in this case. On the night in question, a guard patrolled the corridor on which the cell of Thomas and the victim was located, and he did not see anything out of the ordinary, nor was anything reported.

The next morning, a detention officer noticed that the victim appeared disturbed and that his face was bruised and badly swollen. The officer also noticed that a towel in the cell had a red stain. He took the victim to the medical room where he was examined and photographs taken.

The nurse who examined the victim questioned him about his appearance. The victim said that he had fallen. She noted that he was very quiet. The nurse questioned the victim about his injuries because the injuries she saw were inconsistent with his explanation for them.

The victim then related to the nurse that he had been kicked, kneed, and sexually assaulted by being rectally penetrated. He complained of pain to his ribs, eye, and when he attempted a bowel movement.

The victim was taken to Grady Hospital where he was examined by a physician. He described the attack to the physician, and a CAT scan showed that he had a fracture to his left orbit with soft tissue "prolapsing" though the site of the fracture.

Although the doctor testified that the victim claimed that he was the victim of "penile penetration of his anus against his will," the doctor found no evidence of rectal tearing or bleeding. The doctor noted, however, that such tearing does not always occur in cases of forceful rectal penetration. Although the doctor diagnosed only a "possible sexual assault," he prepared a sexual assault kit that included anal and buccal swabs from the victim.

A paramedic testified that she drew Thomas's blood and placed it in a vial, which she placed in a double sealed plastic bag and gave to a detective who was present. This detective testified that he was present when the blood was drawn and that he received it from the paramedic, and took it to the Georgia Bureau of Investigation (GBI) Crime Lab. Later, DNA test results of the sperm on the swabs from the victim matched the DNA of the blood sample taken from Thomas.

The physician at Grady testified that he placed the swabs and smears in a sexual assault kit and gave the kit to one of the officers from the jail. In court, the doctor identified the kit. An officer testified that he received the kit from the doctor and took it to a detective, and the detective testified that he placed it in the secure property room.

A forensic biologist at the Crime Lab testified that the kit was given a set of identifying numbers and a bar code. The kit, along with several others, was shipped in a large box to a laboratory in New Orleans² to test for the presence of sperm. The box was sealed with tamper-proof evidence tape. Later, the box, with all the evidence sent originally, was returned from the lab in New Orleans.

DNA testing of the sperm on the rectal swab received from the lab in New Orleans matched the DNA of the blood sample taken from Thomas. The DNA profile from the swab appears only in one out of 600 billion among African-Americans and one in one trillion Caucasians.

The State was unable to produce the victim at the trial. Thomas did not testify or present other evidence.

1. Thomas contends the evidence the State presented is insufficient to sustain his convictions because the crucial elements of the State's case were established only by "extraordinarily weak evidence." He argues that the only evidence of his identity was DNA evidence that suffered from a break in the chain of custody and that the only evidence of force and violence necessary to support the aggravated sodomy conviction was inadmissible hearsay. For the reasons stated below in Divisions 2, 3, and 4, we reject these assertions.

"When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Dean v. State, 273 Ga. 806, 806-807(1), 546 S.E.2d 499 (2001). We review the evidence in the light most favorable to the jury's verdict, giving deference to the jury's determination as to the proper weight and credibility to be given the evidence. Butler v. State, 273 Ga. 380, 382(1), 541 S.E.2d 653 (2001). "It is the jury's prerogative to choose what evidence to believe and what to reject," Trammell v. State, 253 Ga.App. 725, 726(1), 560 S.E.2d 312 (2002), and it is the function of the jury, not this Court, to assess the credibility of the witnesses, to resolve conflicting evidence, and to determine the facts. Butler v. State, supra, 273 Ga. at 382(1), 541 S.E.2d 653. Thus, "[a]s long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State's case, we will uphold the factfinder's verdict." (Citation and punctuation omitted.) Childress v. State, 251 Ga.App. 873, 876(2), 554 S.E.2d 818 (2001).

In this case, we are satisfied that the jury could conclude from the evidence discussed above that Thomas and the victim were locked in the cell together alone overnight, the next morning the victim had visible signs of injuries that prompted an investigation and medical treatment, the victim stated that he had been sexually assaulted and beaten against his will, and the DNA evidence connecting Thomas to the sexual assault was sufficient for any rational trier of fact to have found Thomas guilty beyond a reasonable doubt.

"The mere possibility that someone other than the defendant committed the crime charged in the indictment is not such a reasonable hypothesis as must be excluded in order for circumstantial evidence to authorize a verdict of guilty." (Citations and punctuation omitted.) Brown v. State, 170 Ga.App. 398, 400(15), 317 S.E.2d 207 (1984). "Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury," (citations and punctuation omitted.) Haney v. State, 261 Ga.App. 136, 138(1), 581 S.E.2d 626 (2003), and when the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant's guilt, the verdict will not be disturbed unless it is insupportable as a matter of law. Pattillo v. State, 250 Ga. 510, 512, 299 S.E.2d 710 (1983); Jones v. State, 165 Ga.App. 36, 38, 299 S.E.2d 576 (1983). Accordingly, this enumeration of error is without merit.

2. Thomas contends the DNA test results should not have been admitted in evidence because the State did not establish a proper chain of custody. He argues that the results should not have been admitted because

highly contaminable that had admittedly been mailed to another state, handled by an unknown number of people, subjected to "testing" with no indication of what procedures might or might not have been followed during the testing, and then months later, returned to Georgia.

Although concerned about the DNA test results, Thomas has focused his attack on the testing of the rectal swab from the victim that was sent to a private laboratory to determine whether sperm was present. After the swab was returned to the GBI Crime Lab, DNA was extracted from the sperm and then compared with a DNA from a sample of Thomas's blood. Thomas argues that the State failed to prove the chain of custody because it did not call everyone who had custody of the swab, did not call the witnesses who tested the swab, and did not prove that there had been no tampering with the swab.

"When the State seeks to introduce into evidence an item that is subject to the chain of custody rule, it must establish with reasonable assurance that the item seized is the same as the item being offered into evidence. (Footnote omitted.)" Armstrong v. State, 274 Ga. 771, 772(2), 560 S.E.2d 643 (2002). Nevertheless, "[t]he State is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence. We review the trial court's decision on the adequacy of the chain-of-custody evidence under an abuse-of-discretion standard." (Citations, punctuation and footnotes omitted.) Maldonado v. State, 268 Ga.App. 691, 691-692(1), 603 S.E.2d 58 (2004). Also, this court has

recognized that where, as here, there is no affirmative evidence of tampering or substitution, a missing link in the chain of custody does not alone require exclusion of the evidence. Thus, where the testimony shows that the police placed the substance in a tamper-proof identifiable container and that the crime lab ... technician who tests the substance received it in the same container with no proof of tampering or substitution, the...