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Sanchious v. State

Court of Appeals of Georgia, First Division

August 6, 2019

SANCHIOUS
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          BROWN, JUDGE.

         A jury found Christopher Sanchious guilty of three counts of aggravated child molestation, two counts of child molestation, and one count each of aggravated sodomy and sexual battery involving his girlfriend's twelve-year-old daughter.[1]Sanchious appeals his convictions and the denial of his amended motion for new trial, challenging the trial court's admission of scientific reports and testimony regarding the analysis of one of those reports, and trial counsel's effectiveness. We affirm for the reasons set forth below.

         "Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict." (Citation omitted.) Robinson v. State, 342 Ga.App. 624, 625 (805 S.E.2d 103) (2017). So viewed, the evidence showed that Sanchious lived with the victim, the victim's mother, and the victim's brother and sister. On October 14, 2014, the victim was asleep in a bedroom of her home on top of a red comforter, when Sanchious came in, pulled down the victim's "night pants," and "put his penis in [her] butt." She felt something "going in and out of her butthole" and said her pants smelled like "sour milk" when Sanchious was done. The victim went to the bathroom afterward and noticed that her pants were wet and that "the wet look[ed] [w]hite." The victim was afraid to tell her mother in person, so she wrote a note and left it on the ironing board telling her mother that she "can't take it anymore" and that Sanchious "need[s] to leave" because "he is put[t]ing his hand[s] on [her] the wrong way . . . [and she] think[s] that is called rape." At the end of the note, the victim wrote "help me" because she was scared it might happen again. The mother did not see the note until later that evening when the victim handed it to her. The mother confronted Sanchious and he denied touching the victim. The mother took the victim to the hospital and then to police. The mother reported to police that Sanchious "anal[ly] penetrat[ed]" the victim, after which the victim underwent a forensic medical exam. In addition to anal penetration, the victim testified at trial that in the summer of that same year, Sanchious licked her vagina. During the forensic medical exam, the victim reported the anal penetration and also advised medical personnel that Sanchious placed his penis in her vagina and her mouth, and put his finger in her vagina. During the forensic interview, the victim reported all of the above and also stated that Sanchious put his finger down her pants and touched her vagina outside of her underwear. She also reported that in September of the same year, he put his penis in her vagina.

         The victim's younger sister testified at trial that sometime in October 2014, the victim told her that Sanchious was doing "stuff to [the victim] while she was asleep" on the floor of the sister's room. The sister stated that the victim was sleeping on top of a purple cover and under a red cover that had been given to the sister by her godmother. The sister never saw anything because she was asleep and told the victim to tell their mother immediately and "she will handle it."

         The medical exam of the victim conducted in the early morning hours of October 16, 2014, along with the administration of a sexual assault kit, revealed a "healed tear" to her hymen, swelling in her vagina, and a recent abrasion, or bruising on the cervix, all consistent with "insertion of a penis." The exam also revealed a recent injury to the victim's anus, one tear at the top and another toward the bottom, consistent with insertion of a penis. The nurse who conducted the exam testified that the victim had what appeared to be seminal fluid in her anus. The nurse handed over to police both the sexual assault kit and the victim's panties.

         Sometime after 1:00 a.m. on October 16, 2014, and following the medical exam, officers accompanied the victim and her mother back to their home where they discovered Sanchious asleep in the mother's bed. Officers recovered two comforters from the victim's sister's room, one red and one purple, as well as the victim's night pants, which were warm from having just been "run through" the dryer because Sanchious had been doing laundry. Police collected a saliva sample from Sanchious, and sent the following items to the GBI for testing: the purple comforter; cuttings from the red comforter; the victim's panties; and the sexual assault kit.

         A GBI serologist testified that the victim's panties tested positive for seminal fluid, and that a cutting from the red comforter tested positive for sperm and seminal fluid. Both items were sent for DNA testing. The serologist testified that it was unlikely for fluid to be detected on something that had been washed.

         A GBI forensic biologist testified at trial about the DNA testing performed on the victim's sexual assault kit, her panties, and the cuttings from the red comforter. She explained that as part of her duties at the GBI, she conducts DNA testing, but also performs peer reviews of DNA typing analysis reports, meaning that she "examine[s] all the notes and results in the report of an analyst, and [that she has] to come to the same conclusions." The purpose of peer review is "[t]o ensure that the analyst has followed policies and procedures, and that the results are correct and reliable" with the peer reviewer "actually evaluat[ing] the [analyst's] conclusion, or the steps taken to reach that conclusion." The forensic biologist testified that she personally tested the sexual assault kit in this case, but that another analyst tested the panties and red comforter subject to her peer review. The sexual assault kit tested negative for the presence of male DNA, while the comforter contained the DNA profiles of the victim and Sanchious. The panties also tested positive for the presence of DNA, and contained the DNA profiles of three individuals, including the victim, Sanchious, and an unknown person. One fraction of the DNA extracted from the panties came from sperm cells and a second came from non-sperm cells. The DNA of the unknown person and the victim were both located in the non-sperm cells, while Sanchious' DNA was found in the "sperm fraction." The forensic biologist testified that "[t]he frequency, or the statistic, of the DNA markers shared between . . . Sanchious and the DNA obtained . . . from the panties and the cutting recovered from the comforter is approximately one in one hundred quadrillion in the African American population, and one in five hundred quadrillion in the Caucasian population." The forensic biologist concluded with "reasonable scientific certainty" that the DNA obtained from the panties and the comforter matched Sanchious or his identical twin, and testified that the analyst's "testing was done and followed according to policy and procedure." The trial court allowed the State to admit into evidence the forensic biologist's DNA report on the sexual assault kit (State's Exhibit 22), as well as the analyst's DNA report on the panties and the comforter (State's Exhibit 24). On cross-examination, the forensic biologist confirmed that she reviews the possibility of secondary transfer. Defense counsel also questioned the forensic biologist about the notes and data compiled by the analyst during her testing, and submitted those materials into evidence.

         Sanchious testified at trial, denying that he ever touched the victim inappropriately. Sanchious could not explain why his semen was on the victim's panties, and claimed that the red comforter on which his semen was found was the comforter under which he and the victim's mother slept and had sex. The victim's mother testified that the red comforter was never on her bed or in her bedroom, and that she never had sex on or under the red comforter; it was in the victim's sister's room and was a gift from a friend. On cross-examination, the mother clarified that her children would sometimes bring the red comforter into her room, place it on her bed, lay on the comforter, and then take it out of the room, but the children never left the blanket in her room permanently.

         1. In two related enumerations, Sanchious contends that the trial court erred by allowing the forensic biologist to testify about the DNA testing performed by the analyst who was not available at trial, and in admitting the DNA report prepared by the unavailable analyst. During trial, Sanchious objected to both on grounds of hearsay; he alleges the same on appeal. "We . . . review the trial court's ruling on the admissibility of this evidence for abuse of discretion." Carter v. State, 302 Ga. 200, 202 (2) (805 S.E.2d 839) (2017).

         (a) Testimony. In Bullcoming v. New Mexico, 564 U.S. 647 (131 S.Ct. 2705, 180 L.Ed.2d 610) (2011), the United States Supreme Court addressed whether the prosecution may introduce into evidence a forensic laboratory report via the "surrogate testimony" of an analyst who did not sign the certification or personally conduct or observe the performance of the test reported in the certified lab report prepared by another analyst, and ruled that "it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." Id. at 657 (I) (C). See also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (I), 311 (II) (129 S.Ct. 2527, 174 L.Ed.2d 314) (2009) (sworn certificates of state crime lab analysts admitted into evidence to prove that material seized by police was contraband were testimonial; thus, defendant's confrontation rights were violated when the analysts who wrote the certificates did not testify in person at trial). One year later, in a case challenging the admissibility of expert testimony, the Supreme Court of Georgia recognized the holding in Bullcoming, but ruled that Bullcoming does not compel the exclusion of testimony from a substitute witness who "is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue." (Punctuation and citation omitted; emphasis supplied.) Disharoon v. State, 291 Ga. 45, 48 (727 S.E.2d 465) (2012). See also Leger v. State, 291 Ga. 584, 592 (5) (732 S.E.2d 53) (2012) (scientist who did not personally perform DNA tests, but supervised worker who did, interpreted worker's results, and wrote lab report could testify at trial); Thomas v. State, 342 Ga.App. 310, 314 (2) (803 S.E.2d 131) (2017) (second chemist who did not personally perform drug identification tests, but reached an independent conclusion and interpreted procedures and analysis performed by first chemist who was unavailable to testify at trial, could testify at trial); Estrada v. State, 319 Ga.App. 762, 765-766 (3) (738 S.E.2d 344) (2013) (analyst who performed lab testing was unavailable, but supervisor could testify because he had reviewed analyst's work to determine whether it had been performed correctly and whether he agreed with it). Indeed, Georgia courts "have consistently held that the Confrontation Clause does not require the analyst who actually completed the forensic testing used against a defendant to testify at trial." (Citation and punctuation omitted.) Leger, 291 Ga. at 592 (5).

         In this case, the forensic biologist testified about the DNA report she prepared on the sexual assault kit and confirmed that she participated in the preparation of the DNA report on the other tested items, which was prepared by a second analyst. As set out above, the forensic biologist explained that she conducted a peer review of the second analyst's report to ensure that the analyst followed policies and procedures, examined the analyst's notes and results, evaluated the steps taken by the second analyst to reach her conclusion, and reached an independent conclusion. The forensic biologist explained how a conclusion was reached for the DNA profiles on the items tested, and testified that if something had been wrong with the analyst's notes, the DNA report would not have been released. During cross examination, defense counsel submitted into evidence the notes and data relied on by the analyst and forensic biologist in reaching their independent conclusions, and questioned the forensic biologist about those materials. Given these circumstances, we do not find the forensic biologist's testimony to be the sort of "surrogate testimony" inadmissible under Bullcoming. See Thomas, 342 Ga.App. at 314.

         (b) Report. Because the analyst's DNA report (State's Exhibit 24) was cumulative of the forensic biologist's properly admitted testimony, its admission was harmless and we find no merit in Sanchious' challenge in this regard. See Brown v. State, 288 Ga. 404, 408 (3) (703 S.E.2d 624) (2010) (admission of hearsay is harmless where it is cumulative of other properly-admitted evidence); Dennis v. State, 158 Ga.App. 142, 144 (4) (279 S.E.2d 275) (1981) (same).

         2. Sanchious contends that he received ineffective assistance of counsel at trial, asserting that his trial counsel's performance was deficient in a number of ways. As an initial matter, we note that Sanchious has asserted what appears to be sub-categories within his enumeration of error regarding ineffective assistance of counsel. These subcategories concern the trial court's error in admitting the evidence, failing to give a limiting instruction, and sending the DNA report out with the jury during their deliberations. An examination of his arguments within each of these sub-categories, however, show that he attempts to relate each to ineffective assistance of counsel. We will therefore consider them only in the context of an ineffective assistance of counsel claim.

In order to succeed on this claim, Sanchious
must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668 (104 SCT 2052, 80 L.Ed.2d 674) (1984). If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV). In reviewing the trial court's decision, we accept the trial court's ...

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