NAHMIAS, Justice.
Following a jury trial, Appellant Timothy Boothe was found guilty of malice murder and other offenses in connection with the death of Geneva Strickland.
1. Viewed in the light most favorable to the jury's verdict, the evidence presented at trial showed as follows. On October 31, 2007, Clayton County police officers and firefighters responded to a fire at the home of Geneva Strickland around 11:00 p.m. After the fire was extinguished, police found Strickland dead in one of her bedrooms. Her wrists and legs had been bound with the kind of long plastic zip ties ordinarily used to secure ductwork or plumbing pipes, and her mouth was covered with an Ace bandage that had been wrapped around her head seven times. When the medical examiner unwrapped the Ace bandage, he found, in the fifth turning of the wraps, a blue latex glove.
Earlier that night, Torie Gertsch, who was riding her bike in front of Strickland's house, smelled smoke coming from the area and saw a white man and a black man hanging around the house. When the two men saw Gertsch, they chased her, but she was able to escape on her bicycle. The next day, Gertsch described the two men to GBI agents and a GBI sketch artist, who drew a pencil sketch of each man. At trial, the State did not account for the original sketches; over Appellant's objection, the trial court admitted photocopies of the sketches into evidence.
DNA testing identified Appellant's nuclear DNA (nDNA) inside the blue latex glove that was found wrapped in the Ace bandage covering Strickland's mouth.
After receiving the results of the DNA testing of the glove, police officers secured an arrest warrant for Appellant and went to his mother's house to try to locate him. They had to knock on the door for an extended time before anyone answered. Appellant's mother eventually opened the door, and she and his sister told the officers that no one else was home. When the officers searched the house, however, they found Appellant hiding in the attic, which could be accessed only by pull-down stairs. The police told him to come down, but Appellant instead stood in the attic opening hiding one of his hands like he had a gun and yelling at the officers to shoot him. He surrendered after a short standoff.
Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted and sentenced. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) ("`It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)).
2. Appellant argues that the trial court erred by admitting into evidence photocopies of the two police sketches drawn from the descriptions provided by Gertsch. He contends that the admission of copies of the sketches, as opposed to the original sketches, violated the "best evidence" rule set forth in former OCGA § 24-5-4(a). We need not
(a) Georgia's archaic "best evidence" rule stated: "The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." Former OCGA § 24-5-4(a). Under that provision, "when the contents of a writing are material, the original of the writing must be produced or its absence accounted for" before the writing could be admitted into evidence. Clark v. State, 271 Ga. 6, 11, 515 S.E.2d 155 (1999). Only when the original writing was unavailable for some reason other than the fault of the proponent did the trial court have discretion to admit a duplicate or copy of the original.
Former OCGA § 24-5-4(a) did not define the term "writing," and the State argues that the sketches do not constitute "writings" for purposes of the old best evidence rule.
On the other hand, a sketch, like a handwritten document, is produced by a writing implement and is based on the artist's subjective interpretation of information supplied to the artist as she draws on the page. And as Appellant points out, a California court has concluded that a police sketch was a writing for purposes of that state's best evidence rule, although the statute there defined the term "writing" expansively. See People v. Garcia, 201 Cal.App.3d 324, 328 n. 1, 247 Cal.Rptr. 94 (1988).
Thus, whether a police pencil sketch is a "writing" under the old best evidence rule is a close question. And we need not decide that question to decide this case, because even assuming that the sketch copies were
(b) In determining if an error is harmless, we "review the record de novo." Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In doing so, we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case.
Review of the trial record reveals that the sketches of the two men Gertsch saw in the vicinity of the crime scene were not important inculpatory evidence at trial. The two pencil sketches are in the record. One depicts a black man with close-cut hair; the other is of a white man with long, straight sandy-brown hair and no mustache. Also admitted into evidence at trial was Appellant's September 21, 2007, driver's license, the photograph on which shows that Appellant is a white man who, in the time period of the crimes, had long dark brown or black hair, a thick mustache, and a beard. Thus, one of the sketches that may have been admitted erroneously — the one of the black potential perpetrator — was entirely exculpatory of Appellant; indeed, the record offers no other evidence of this man's identity or of a second person being involved in the crimes. And comparing the other sketch to Appellant's license photo, the jury easily could have considered that sketch to be exculpatory as well; at best it served only to not exclude Appellant as a potential perpetrator, to the extent he is a white man who had long hair.
Moreover, the probative value of that sketch depended entirely on the accuracy of Gertsch's description to the sketch artist, and the sketch did not gain any credence from Gertsch's testimony at trial. To the contrary, her testimony was inconsistent and heavily impeached; like the sketches, Gertsch at best did not entirely exclude Appellant as a potential perpetrator. Gertsch testified that one of the men she saw around (but not entering or leaving) the victim's house that night (a night she repeatedly described as "very dark") was African-American — so he was not Appellant. As for the
Thus, the sketches, as well as the witness who provided their content, did little if anything to identify Appellant as a perpetrator of the crimes. So why did the jury find him guilty? Because the other evidence was so powerful.
To begin with, the State's evidence showed that Appellant had a prior relationship with the victim and a motive to commit the crimes; he had worked at her house and knew that she kept a significant amount of cash there. The State then proved beyond any reasonable doubt, primarily through solid forensic evidence, that Appellant was directly involved in the crimes.
Evidence showed that during the month before the crimes, Appellant worked for a construction company that sometimes stocked long zip ties of the size used to bind the victim's wrists and legs. Much more significantly, the nuclear DNA testing of the blue latex glove, which was found stuck in fifth turning of the Ace bandage wrapped around the victim's mouth, showed that Appellant's DNA was inside the glove, tying him conclusively to an implement used in committing the murder. The only other DNA found on the glove was a partial profile consistent with the victim's DNA. Thus, the evidence indicated that Appellant — and no one else — wore a glove used while muzzling the victim before she was killed. And as with the zip ties, there was evidence that Appellant had access to such gloves. Bobby Joe Taylor, Appellant's friend and sometimes work partner, testified that Appellant used latex gloves to mix paint and clean paint brushes.
The dissent seeks to discount the import of this DNA evidence by suggesting that Appellant's DNA might have been left on the glove when he did repair and painting work at the victim's house. But full consideration of the evidence shows that to be an unrealistic possibility. Appellant's sister, who testified for him, said that he had worked at the victim's house six or seven times, but the last time was in either late 2006 or early 2007. Taylor also testified that Appellant had done work at the house on several occasions, but he dated that work to 2005-2006 or before. Thus, the evidence was that Appellant had not been in the victim's house for many months before the October 31, 2007 crimes.
Thus, to conclude that Appellant did not leave his unique nDNA on the glove while using it in gagging and murdering the victim, one would have to believe that Appellant's DNA was left inside the glove when he used it to clean or mix paint or do other such work, but without leaving a mark on it; and that the glove had not been discarded after Appellant used it but instead remained in the house for an intruder to find many months later; and that Appellant's DNA remained in the glove those many months; and that the intruder entered the house, found the glove, and decided to use it while binding the victim with an Ace bandage, without leaving his own DNA on the glove, only Appellant's DNA and a partial DNA profile consistent with the victim's. No rational juror would accept that as a reasonable explanation for how Appellant's nDNA came to be on the glove.
But the defense had to do more than just explain away the glove containing Appellant's unique nuclear DNA. On the black mask discarded in the victim's front yard was a head hair that was subjected not only to microscopic comparison to Appellant's hair but also to mitochondrial DNA testing. Although the results of this testing are not as conclusive as nuclear DNA testing (nothing is), the State's experts explained that not only was the hair found on the mask microscopically indistinguishable from Appellant's hair, but the chances of the mitochondrial DNA from a Caucasian person like Appellant matching the mDNA in the hair was 1 in 588. That is a far more definitive identification than a pencil sketch based on a shaky witness's recollection of two men she saw on a dark night.
The dissent also suggests that the probative value of the hair is undermined because the mask might have been used by another intruder and then contaminated, before it was collected by the GBI, by a hair that Appellant shed on the ground or on the utility box when he worked at the house. But that would require the jury to have believed that Appellant's hair remained in the victim's yard for many months after he last worked at the house in early 2007, in quantities sufficient that the mask happened to pick up a hair after being discarded. And the jury also would have needed to ignore the GBI expert's testimony that a hair left outside for a long time would show signs of weathering, and there were no such signs on the hair found on the mask. And of course the hair mDNA evidence stands alongside the glove nDNA evidence, requiring a theory that someone other than Appellant was fortunate enough not only to have the mask he wore (without leaving any of his own hair on it) come into contact with a hair that Appellant shed many months before but also to find and use (without leaving any of his own nDNA) a latex glove that Appellant had used many months before. There is no reason to believe that the jury relied on such an unreasonable theory. And finally, Appellant's action of hiding from and engaging in a standoff with police officers when they came to arrest him was evidence of his consciousness of guilt.
To sum up, even assuming that copies of the police sketches of the two men Torie Gertsch saw outside the victim's house were erroneously admitted in violation of the old best evidence rule, there is no doubt that such error did not contribute to the jury's decision to find Appellant guilty. One sketch was entirely exculpatory, and the other resembled Appellant only in that he is a white male who had long hair — even though his hair color, mustache, and height appear inconsistent with the description Gertsch gave. By contrast, the other evidence supporting the jury's verdict was overwhelming, in particular the DNA evidence linking Appellant to both the latex glove found in the Ace bandage wrapped around the victim's mouth
3. Appellant argues that the trial court erred by prohibiting him from questioning Torie Gertsch about her prior drug use. Appellant does not contend that at trial he had evidence of any prior drug convictions of Gertsch that he could have used for impeachment purposes under former OCGA § 24-9-84.1. Instead, he contends only that Gertsch's prior drug use could have affected her memory on the night that she saw the two men near Strickland's home. At the motion for new trial hearing, Appellant offered expert testimony that long-term cocaine use may cause brain damage and affect memory, but no such evidence was proffered at trial.
In the absence of such evidence, the trial court allowed Appellant to question Gertsch only about whether she was under the influence of any drugs at the time that she saw the two men and at the time that she gave her testimony at trial — the only time periods that were relevant to Gertsch's testimony. To the extent that Appellant wished to question Gertsch about drug use in general, the trial court did not abuse its discretion in determining that such inquiries were irrelevant and improper. See, e.g., Garcia v. State, 240 Ga. 796, 801, 242 S.E.2d 588 (1978) (holding that the trial court did not abuse its discretion in limiting the cross-examination of a State witness's use of drugs to the time of the crime, as opposed to his general abuse of drugs); Lancette v. State, 151 Ga.App. 740(4), 261 S.E.2d 405 (1979) (holding that the trial court properly sustained an objection to the defendant's asking a witness on cross-examination, "Now, do you use marijuana?," because that issue was irrelevant and the defendant could not, "under the guise of attacking the witness' credibility, ask questions suggesting illegal or immoral conduct in areas other than that before the court"); former OCGA § 24-9-62 ("It shall be the right of a witness to be examined only as to relevant matter and to be protected from improper questions....").
4. Finally, Appellant contends that his trial counsel provided constitutionally ineffective assistance of counsel by failing to discover that Gertsch had four prior felony convictions that could have been used to impeach her. To prevail on this claim, Appellant must show that his trial counsel's performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "This burden, although not impossible to carry, is a heavy one." Young v. State, 292 Ga. 443, 445, 738 S.E.2d 575 (2013). And the reviewing court need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
Appellant asserts that Gertsch had four prior felony convictions that trial counsel should have discovered, but only one such conviction (for criminal damage to property) was admitted into evidence at the motion for new trial hearing. And even assuming that trial counsel performed deficiently in failing
Judgment affirmed.
All the Justices concur, except BENHAM and MELTON, JJ., who dissent.
MELTON, Justice, dissenting.
Because the admission into evidence of the police sketch copies in this case violated the best evidence rule of former OCGA § 24-5-4(a),
As an initial matter, I disagree with the majority that the question "whether a police pencil sketch is a `writing' under the old best evidence rule is a close [one]" (Maj. Op. at 597) such that it is not clear whether or not the trial court erred in admitting the police sketch copies into evidence in violation of best evidence rule of former OCGA § 24-5-4(a).
Furthermore, contrary to the majority's concerted effort to portray the erroneous admission of the police sketch copies as harmless due to the supposedly "overwhelming" evidence of guilt in this case, a straightforward review of the close nature of the evidence here
The record reveals that Gertsch, the State's only witness who saw two men near the victim's home on the night of the murder, did not identify Boothe at trial as one of the men whom she saw, but only testified that she was confident at the time that she gave her description of the two men to the police that the sketches looked like the men whom she saw. Accordingly, regardless of whether or not the police sketch of the caucasian male at the scene looked exactly like Boothe, because Gertsch herself could not identify Boothe at trial as one of the perpetrators, it was reasonable for the jury to conclude that the sketch itself was the most detailed physical description available to it that could be analyzed to determine whether Boothe was one of the men at the scene of the crime on the evening that the victim was murdered. In this sense, it cannot be assumed, as the majority has done, that "the sketches of the two men Gertsch saw in the vicinity of the crime scene were not important inculpatory evidence at trial." If anything, where, as here, the State's main witness could not provide a consistent description of Boothe on her own, it would only become more likely, rather than less likely, that the jury would
In this connection, without the improperly admitted sketch copies, the only evidence that could have connected Boothe directly to the murder scene was the circumstantial evidence of one strand of hair on a mask found on Halloween night outside of the home (that had also been handled by a firefighter and placed on a utility box before being collected as evidence) and his nDNA being found inside the blue latex glove that was trapped within the bandages that were binding the victim's face. And, with respect to that evidence, although it definitely made Boothe's presence at the house on the night of the murder more likely, it did not automatically place Boothe at the victim's home at that time, as other testimony revealed that Boothe had been to the victim's home on several occasions to do repair work and painting, and that he used latex gloves at the house in connection with his work.
I am authorized to state that Justice BENHAM joins in this dissent.
OCGA § 24-10-1003. See Fed.R.Evid. 1003.