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White v. State

Court of Appeals of Georgia, Third Division

May 30, 2018

EARNEST RAY WHITE
v.
THE STATE.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

          Bethel, Judge.

         Earnest Ray White began serving a life sentence in 1996 following his conviction for aggravated assault, burglary, and kidnapping.[1] He has consistently maintained his innocence, and in 2015 sought to re-open his case pursuant to OCGA § 5-5-41 (c), which provides those convicted of felony offenses with the ability to request DNA testing of evidence if, among a number of other factors, the identity of the perpetrator of the offense was at issue at trial. Because an improper legal standard was applied below, we vacate the order of the trial court and remand the case for further proceedings.

         OCGA § 5-5-41 (c) (1) provides that, subject to provisions regarding extraordinary motions for new trials, "a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case for the performance of forensic [DNA] testing." OCGA § 5-5-41 (c) (3) and (4) further provide that such motion must be verified by the petitioner and must show or provide a number of items of information regarding the evidence to be tested, including its location, who possesses it, and the results of any other DNA testing conducted by either the petitioner or the State during the original prosecution of the case. Assuming the petitioner complies with the filing requirements set forth in OCGA § 5-5-41 (c) (3) and (4), the trial court is required to hold a hearing on the motion. OCGA § 5-5-41 (c) (6). If the petitioner satisfies the filing requirements and persuades the judge that there is a reasonable probability that the trial verdict would have been different if the results of the requested DNA testing had been available at the time of trial and indicated the presence of a third person, the petitioner's motion is to be granted where each of the following requirements have been established:

(A) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;
(B) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;
(C) The evidence was not tested previously or, if tested previously, the requested DNA test would provide results that are reasonably more discriminating or probative of the identity of the perpetrator than prior test results;
(D) The motion is not made for the purpose of delay;
(E) The identity of the perpetrator of the crime was a significant issue in the case;
(F) The testing requested employs a scientific method that has reached a scientific state of verifiable certainty such that the procedure rests upon the laws of nature; and
(G) The petitioner has made a prima facie showing that the evidence sought to be tested is material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime, aggravating circumstance, or similar transaction that resulted in the conviction.

OCGA § 5-5-41 (c) (7).

         In this case, the trial court determined that the item of evidence White sought to test-workout pants worn by the victim during the incident giving rise to this case-had been stored for nearly 20 years in a warehouse with no temperature or humidity control. The trial court also noted testimony from a forensic expert that heat, humidity, and light generally have a deleterious effect on biological specimens. Based on that evidence, the trial court concluded that there was a substantial likelihood that the biological specimens, namely epithelial skin cells presumed to be located on the pants, had been materially altered by the effects of light, heat, and humidity, such that the requested testing would no longer meet the standards set forth in OCGA § 5-5-41 (c). The trial court thus ruled that White had failed to establish the factors set forth in OCGA § 5-5-41 (c) (7) (A) and (B) and denied his petition for DNA testing.

         Following the denial of his motion for reconsideration by the trial court, White filed an application for discretionary review, ...


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