Moss v. State

366 Ga.App. 33

879 S.E.2d 821

MOSS

v.The STATE.

A22A0787

Court of Appeals of Georgia.

October 20, 2022

Reconsideration Denied November 03, 2022

Benjamin David Goldberg, for Appellant.

John Richard Edwards, A.D.A., Marietta, Flynn Duncan Broady Jr., District Attorney, Leslie Anna Coots, A.D.A., for Appellee.

Gobeil, Judge.

A Cobb County jury found Ricky Remon Moss guilty of rape, aggravated sexual battery, and false imprisonment based on an incident that took place in 1998. Moss appeals from his judgment of conviction and the denial of his motion for new trial, asserting that the trial court erred in: (1) overruling his objection to the State's use of its peremptory strikes to affect the racial makeup of his jury under Batson v. Kentucky , 476 U. S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; (2) allowing a witness to give improper "surrogate" testimony about the results of DNA analysis when the witness did not have a "substantial personal connection" to the DNA testing at issue; (3) overruling his hearsay and Confrontation Clause objections to witness testimony that Moss's DNA was a match to DNA collected in the victim's rape kit; and (4) overruling his objection to OCGA § 24-4-413 prior sexual offense evidence when the State failed to prove that Moss was the perpetrator of the prior offense. For the reasons set forth below, we affirm the trial court's denial of Moss's motion for new trial.

"On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence." Williams v. State , 333 Ga. App. 879, 879, 777 S.E.2d 711 (2015) (citation and punctuation omitted).

So viewed, the record shows that the victim, D. B., was 16 years old in December 1998. She and a friend met a man at a Blockbuster video store. D. B. gave this man her phone number, and he called her a couple of times in the following weeks. On December 17, 1998, the man called D. B. and asked her to join him for lunch. The man picked D. B. up from her home, and the two went to a restaurant.

The man drove D. B. back to her house, and D. B. wanted to go inside. The man "said something about coming inside" and when D. B. said no, he said "can I at least get a hug." As D. B. went to give him a hug, the man slid his hands down her pants and grabbed her bottom. She pushed away and told him to stop, but he moved his hand to the front of her pants and inserted his fingers in her vagina.

D. B. fought against the man, and escaped the man's car. She opened the garage door with a remote and headed toward the garage. The man came up behind her, put his arms around her, and walked her into the garage. He held her hands behind her back and bent her over the front of her vehicle that was parked in the garage. The man pulled her pants down and raped her while she pleaded with him to stop. Afterward, he pulled her pants back up and told her he would call her and then left.

Shortly after the assault, D. B.’s sister arrived home. D. B. told her sister what happened, and the two went to the police station and then to the hospital. A doctor conducted a pelvic exam on D. B. and collected evidence for a rape kit. The kit was turned over to Detective Daniel Rossman with the Cobb County Police Department. Rossman also spoke to the victim in her exam room, collected her clothing for evidence, and arranged to interview her the next day.

D. B. gave a description of her attacker: she told the investigators that she thought his name was "Enricky" or "Anricko," he was 6’ 4" with a medium build and dark hair and eyes. She described his hair and facial hair, what he was wearing on the day of the attack, and the car he drove. She believed he was part black or part Hispanic or mixed race. When he called her phone, the caller ID indicated that he was calling from Smyrna.

Detective Rossman followed some leads in an attempt to identify the perpetrator, but was unable to develop a suspect. Three or four months after the incident, Rossman placed the case in inactive status. The rape kit was not submitted to the Georgia Bureau of Investigation ("GBI") for testing because the GBI's policy at the time was to not test rape kits without a known suspect.

Almost 20 years later, in October 2017, the rape kit collected from D. B. was analyzed by Sorenson Forensics ("Sorenson"), an independent forensic lab located in Salt Lake City, Utah that had contracted with the GBI. Two items from the kit were analyzed, vaginal swabs and gauze. Male DNA was identified in both items, and a male DNA profile was detected and returned to the GBI.

The DNA profile was reviewed by a GBI scientist and forwarded to a database administrator to be entered into the GBI database and searched against other profiles in a national database. A match came back in February 2018, identifying Moss as a match for the DNA from the rape kit. Additional buccal swabs were taken from Moss, which also matched the DNA from the rape kit. The case was reactivated, and Detective Clint Monahan of the Cobb County Police Department obtained an arrest warrant for Moss. Moss was indicted for rape, aggravated sexual battery, and false imprisonment.

A jury found Moss guilty on all charges, and the trial court sentenced him to two consecutive life sentences plus ten years. He filed a motion for new trial, as amended, which the trial court denied after a hearing. This appeal followed.

1. Moss first raises a Batson challenge, arguing that the State used its peremptory jury strikes in a racially discriminatory manner. Moss raised this issue during the trial, lodging a Batson objection immediately after the jury was selected. The trial court found that Moss made a prima facie showing of discrimination based on the State's use of strikes against non-white persons. The trial court allowed the State to put forward its race-neutral explanations for striking the jurors, and allowed Moss to argue discriminatory intent. The trial court placed one of the struck jurors onto the jury, but otherwise overruled Moss's objection. After Moss raised this issue in his motion for new trial, the trial court found that considering the totality of the circumstances, Moss failed to prove discriminatory purpose in the State's use of peremptory strikes.

A Batson challenge involves three steps: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven the proponent's discriminatory intent.

Thomas v. State , 309 Ga. 488, 490 (2), 847 S.E.2d 147 (2020) (citation and punctuation omitted). "[A] trial court's finding as to whether the opponent of a strike has proven discriminatory intent is entitled to great deference and will not be disturbed unless clearly erroneous." Id. at 491(2), 847 S.E.2d 147 (citation and punctuation omitted); see also Snyder v. Louisiana , 552 U. S. 472, 477 (II), 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ("The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility, and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge[.]") (citations and punctuation omitted).

Here, the record shows that the pool of prospective jurors was made up of six black persons, twenty-four white persons, three Hispanic persons, one Asian person, and two persons whose race was not noted. The State used its peremptory strikes to strike three black jurors, three Hispanic jurors, and one Asian juror. The State used one alternate strike on a white juror. Ultimately, fourteen jurors were selected for the jury, with thirteen white jurors and one black juror selected.

Based on this record, the trial court found that Moss made a prima facie case of racial discrimination in the State's use of peremptory strikes. Moving on to step two, the State provided its reasons for striking each juror. On appeal, Moss challenges four of these strikes, so we will focus on those jurors: Jurors 13, 16, 22, and 33.

For Juror 13, a Hispanic male, the State stated that it struck him because he had a criminal history and because he had a potential hardship in that he shared a vehicle with his girlfriend and may not have reliable transportation. For Juror 16, an Asian male, the State stated that it struck him because he indicated that serving as a juror would be a hardship for him based on his family and work commitments, specifically mentioning that he has a sick wife who needed his attention. For Juror 22, a Hispanic male, the State stated that he had very little to say during voir dire and mentioned a hardship to the attorneys in private that he lived alone and would have difficulty paying his bills if he served on the jury. For Juror 33, a black male, the State stated that it "didn't get a read from him." The trial court stated: "Because he didn't answer a single question." The State responded that the decision was made toward the end of jury selection, after the defense was out of strikes. So the prosecutor would get to choose who would be placed on the jury and knowing that she "had gotten a better read on the next few people," she struck Juror 33. There was also Juror 31, a black female, whom the State claimed to have struck because she was a teacher.

After Moss made his argument, focusing on similarly situated white jurors that were not struck by the State, the trial court found that Juror 31 should be placed on the jury because the State did not put forward a race-neutral reason to strike her. The court found that the reasons for striking the other jurors were race neutral. Moss asked for a continuing objection to the challenged jurors.

On appeal, Moss concedes that the State provided "facially race-neutral" reasons for striking all of these prospective...