306 Ga. 455 FINAL COPY
S19A0765. LEWIS v. THE STATE.
PETERSON, Justice.
Freddie Lewis was convicted of malice murder, rape, and
burglary in connection with the death of Evelyn Wise.1 On appeal,
Lewis argues that the trial court erred in (1) denying his motion for
a directed verdict, (2) denying his motion in limine to exclude DNA
1 The crimes occurred on March 3, 1991. On May 29, 2009, a Fulton
County grand jury indicted Lewis for malice murder, felony murder predicated on aggravated assault, felony murder predicated on burglary, felony murder predicated on rape, aggravated assault, burglary, and rape. Following a trial held in September 2010, a jury found Lewis guilty on all charges except felony murder predicated on burglary. The trial court sentenced Lewis to consecutive life sentences for malice murder and rape and a consecutive twenty-year term for burglary. All remaining counts were vacated by operation of law or merged for sentencing purposes. Lewis filed a timely motion for new trial on September 22, 2010, which he amended on March 29, 2017. In October 2017, Lewis filed a pleading “dismissing” his motion for new trial and then filed a notice of appeal. We dismissed his appeal and remanded the case to the trial court on the basis that the trial court had not entered a judgment on Lewis’s motion for new trial. See Heard v. State, 274 Ga. 196, 197 (552 SE2d 818) (2001) (trial court must enter an order disposing of motion for new trial in order to extend the 30-day deadline to file notice of appeal from entry of judgment). On remand, the trial court entered an order on December 13, 2018, accepting Lewis’s withdrawal of his motion for new trial. Lewis’s timely appeal was docketed to this Court’s April 2019 term and submitted for a decision on the briefs. evidence based on inadequate chain of custody, (3) failing to conduct
an evidentiary hearing to determine the admissibility of DNA
evidence, (4) admitting the statements of a deceased witness, and
(5) sentencing him on the aggravated assault, burglary, and rape
counts because the statutes of limitations for those counts had
expired prior to trial. The trial court committed no error, because
the evidence was sufficient to support convictions on the crimes
charged, and the DNA evidence, as well as the out-of-court
statements by the deceased witness, were properly admitted.
Finally, the statute of limitations period was tolled while Lewis’s
identity was unknown, and so the trial court properly sentenced
Lewis. We affirm.
Viewed in the light most favorable to the verdicts, the evidence
shows that Mary Wise and her daughter, Evelyn, lived in a
townhouse-style apartment near the Vine City MARTA station;
Mary slept downstairs, and Evelyn had a room upstairs. On the
morning of March 3, 1991, an Atlanta Police Department (APD)
officer went to the apartment in response to a 911 call regarding a
2 robbery with an injured person. Mary reported that an unidentified
male tried to strangle her in the middle of the night. She said that
she had gone to bed sometime around 11:30 p.m. after talking to
Evelyn, and was awoken around 1:00 a.m. by noises coming from the
upstairs area. After hearing the noises, Mary saw a man run down
the stairs. The man jumped on her, wrapped a string around her
neck, and began to pull on it. Mary fought off the man, but he then
choked her with his hands and smothered her with a pillow, causing
her to lose consciousness. When Mary regained consciousness, she
noticed that some of her money had been taken. Mary did not get a
good look at the assailant because it was dark inside the apartment
at the time of the attack. The responding officer observed that Mary
had a small bruise on her cheek, dried blood on one side of her face,
and some slight discoloration around her neck.
After talking to Mary, the responding officer went upstairs.
The officer found Evelyn’s dead body lying face-up on the floor in her
bedroom. Evelyn had a shoestring wrapped around her neck, her
pants had been pulled down, her legs were spread so that her
3 genitals were exposed, and she had one shoe on. The officer also saw
that a flower pot had been placed on an air conditioning unit outside
so that someone could access a ledge leading to the open bedroom
window. All other entries to the apartment were locked.
An APD detective canvassed the apartment complex, but all
potential suspects were ruled out after further investigation. A
medical examiner performed an autopsy on Evelyn on March 3, the
same day her body was found. The medical examiner observed a
ligature mark on the victim’s neck, abrasions on her face consistent
with an attempt to move the ligature away from her neck, and
hemorrhaging around her eyes. He concluded that Evelyn’s cause of
death was ligature strangulation. Because the medical examiner
also suspected that Evelyn was sexually assaulted, he swabbed
Evelyn’s breasts, vagina, and rectum, and this evidence was sent to
the GBI.
A GBI examination revealed the presence of intact and
partially intact sperm from the vaginal swabs and partially intact
sperm from the rectal swabs. A GBI DNA analyst testified that the
4 presence of intact sperm indicated that the semen was deposited 24
to 36 hours before the swabs were collected, and, based on this
evidence, the APD detective concluded that the sexual contact
occurred at or near the time of Evelyn’s death.
The GBI sent the swabs to the FBI, which had been
investigating the murders of four elderly women in the Vine City
area. An FBI analyst analyzed the sperm cells from the vaginal
swabs of Evelyn, determined that the sperm came from only one
person, and concluded that the DNA profile was not a match for any
known individuals and was not linked to the crimes being
investigated by the FBI. After completing his exams, the FBI
analyst returned the swabs to the GBI in September 1991. Because
there were no leads to pursue, the APD investigation into Evelyn’s
murder went into an inactive status.
In 2004, the APD created a Cold Case Squad to investigate
homicides having a sexual component by reexamining the rape kits
in those cases. The Cold Case Squad made repeated requests to the
APD’s property section to obtain Evelyn’s rape kit, but the kit was
5 not located until January 2008. A detective then sent the swabs to a
private lab for DNA analysis, leading to the creation of a DNA
profile. The GBI reviewed the private lab’s work, uploaded the
profile into a national database of DNA profiles known as CODIS,
and issued a report in April 2008 concluding that the DNA profile
was a match for Lewis.
Police began investigating Lewis and learned that he had lived
in the same apartment complex as Evelyn at the time of her death;
Lewis’s building was located about 75 yards from Evelyn’s. An APD
detective interviewed Lewis, who after being read his Miranda
rights and waiving them, admitted that he knew the victim but did
not say that he was in a relationship with her or that he ever had
sexual intercourse with her. When the detective asked Lewis for a
DNA sample, Lewis grew visibly shaken, became extremely nervous,
and began stumbling over his words. The detective took two buccal
swabs from Lewis and sent them to the GBI for testing. The DNA
from Lewis’s swabs matched the DNA from the vaginal swab taken
from Evelyn in 1991, thus confirming the CODIS match. During his
6 investigation, the detective found no evidence that Lewis had a
consensual sexual relationship with Evelyn. The evidence showed
that Mary never let any men inside the apartment and was very
protective of Evelyn because she had an intellectual disability.
1. Lewis argues that the trial court erred in denying his motion
for a directed verdict because the evidence was insufficient to
support his convictions. In particular, he argues that there is no
direct evidence that he committed the crimes, the evidence showing
the presence of his sperm inside the victim’s vagina did not rule out
the possibility that he and the victim had consensual sex and
someone else committed the crimes, and the DNA identification
evidence was suspect because the rape kit went missing for a few
years and items within it were not clearly identified. We conclude
that there was sufficient evidence to authorize his convictions.
The standard of review for the denial of a motion for a directed
verdict of acquittal is the same as for determining the sufficiency of
the evidence to support a conviction under Jackson v. Virginia, 443
U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See Green v. State,
7 304 Ga. 385, 387 (1) (818 SE2d 535) (2018). Under this standard, we
review whether a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt, but we do not “reweigh
evidence or resolve conflicts in testimony; instead, evidence is
reviewed in a light most favorable to the verdict, with deference to
the jury’s assessment of the weight and credibility of the evidence.”
Thomas v. State, 300 Ga. 433, 436 (1) (796 SE2d 242) (2017) (citation
and punctuation omitted).
To sustain a conviction based on circumstantial evidence,
former OCGA § 24-4-6, in effect at the time of Lewis’s trial, provided
that “the proved facts shall not only be consistent with the
hypothesis of guilt, but shall exclude every other reasonable
hypothesis save that of the guilt of the accused.”2 The evidence need
not exclude every hypothesis save that of guilt, only those that are
reasonable, and it is for the jury to determine whether an alternative
hypothesis is reasonable. See Brown v. State, 304 Ga. 435, 437 (1)
2 This provision of the old Evidence Code was carried forward into the
new Evidence Code and is now found at OCGA § 24-14-6. 8 (819 SE2d 14) (2018). We will not disturb the jury’s finding in this
respect unless the evidence is insupportable as a matter of law. Id.
(a) The evidence was sufficient to sustain Lewis’s convictions.
The state in which Evelyn’s body was discovered (partially
undressed with her genitals exposed), her defensive wounds, and
her manner of death supported a finding that Evelyn succumbed to
strangulation after attempting to fight off an assailant who was
raping and strangling her. The evidence also shows that sperm
collected from Evelyn came from only one male, Lewis, and the
condition of the sperm showed that her death occurred at or near the
time of the sexual contact.
Notwithstanding this evidence, Lewis argues that there was a
reasonable hypothesis that he had consensual sex with Evelyn and
left the apartment before an unknown assailant entered the victim’s
apartment and committed the crimes charged. But the jury could ⸺
and did ⸺ reject this hypothesis as unreasonable. There was no
evidence that Evelyn had a relationship with any man, much less
Lewis, as Mary was very protective of Evelyn. And despite admitting
9 to police that he knew Evelyn, Lewis never said that he had a
relationship with Evelyn or had consensual sex with her. The jury
was therefore authorized to reject Lewis’s hypothesis. See Daniels v.
State, 298 Ga. 120, 123 (1) (779 SE2d 640) (2015) (jury authorized to
reject theoretical possibility that the defendant had consensual
sexual intercourse with the victim within 72 hours of her murder
and sometime later an unknown assailant also had sexual
intercourse with the victim and murdered her without leaving a
trace of DNA evidence recoverable through sexual assault evidence
kit).
(b) To the extent Lewis challenges the integrity of the DNA
identification evidence based on an insufficient chain of custody of
the rape kit, this claim fails. The medical examiner who took the
swabs from the victim testified that he sealed the items before
sending them to the GBI Crime Lab. Witnesses from the GBI, the
FBI, and the private lab that tested materials from the rape kit over
the years all testified that the materials were sealed and showed no
signs of tampering when they were received, and the witnesses
10 resealed the materials after performing DNA tests. Although the
APD did not locate the items for several years after the APD Cold
Case Squad first requested them, there were no signs of tampering
when the rape kit was finally located in 2008, and there was no
evidence the rape kit was removed from the APD’s property room
during that time.
Given this evidence, the State established a reasonable
certainty that the original victim swabs were the same evidence that
was tested. See, e.g., Johnson v. State, 271 Ga. 375, 382 (13) (519
SE2d 221) (1999) (“When blood samples are handled in a routine
manner and nothing in the record raises a suspicion that the blood
sought to be admitted is not the blood tested, the blood is admissible
and the circumstances of each case need only establish reasonable
assurance of the identity of the sample.” (citation and punctuation
omitted)). “Absent affirmative evidence of tampering, mere
speculative doubt as to the handling of [the] evidence” is a matter
for the jury to resolve. Id. (citation and punctuation omitted). The
jury clearly resolved this issue adversely to Lewis, and it was
11 authorized to do so by the evidence presented. See Bates v. State,
293 Ga. 855, 855 (1) (750 SE2d 323) (2013) (“It is the role of the jury,
not this Court, to weigh the evidence and determine witness
credibility.”); Whitaker v. State, 291 Ga. 139, 140 (1) (728 SE2d 209)
(2012) (the resolution of evidentiary conflicts “adversely to the
defendant does not render the evidence insufficient” (citation and
punctuation omitted)).
2. Lewis raises two arguments on appeal regarding the
admissibility of the DNA evidence. Neither of his arguments has
merit.
(a) Challenging the sufficiency of the State’s chain of custody
over the swabs taken from Evelyn’s body, Lewis argues that the trial
court erred in denying his motion in limine to exclude the DNA
evidence obtained from those materials. We disagree.
On the morning of the first day of Lewis’s trial, as the jury was
about to be selected, Lewis informed the trial court that he had a
pending motion in limine, which he had filed a few days prior. Lewis
argued that the State’s DNA evidence should be excluded because
12 the State would be unable to establish an adequate chain of custody
because it could not show the location of the evidence from
September 1991 (when the GBI received the swabs from the FBI)
until January 2008 (when the APD located Evelyn’s rape kit and
sent it to the Cold Case Squad). The trial court asked Lewis whether
he had any evidence that someone had tampered with the rape kit,
and Lewis conceded that he did not, noting that there was no
evidence about the location of the rape kit. The trial court remarked
that the motion should have been filed sooner and that it would have
been helpful to have some testimony on the issue in order to make a
preliminary determination. After hearing the parties’ arguments,
the trial court denied Lewis’s motion in limine but noted that the
State would have to lay a proper foundation at trial.
Lewis complains about the trial court’s pretrial ruling, arguing
that the court should have “made a finding that would have
uncovered the problem with the chain of custody and would have
exposed the tests, or lack thereof, of the techniques and procedures
that were valid and were capable of producing reliable results.” It is
13 not clear what “finding” Lewis wanted the court to make. In any
case, he has not shown that the trial court’s ruling was erroneous.
A party’s motion in limine to exclude evidence as inadmissible
“should be granted only if there is no circumstance under which the
evidence is likely to be admissible at trial.” Grant v. State, 305 Ga.
170, 172 (3) (824 SE2d 255) (2019) (citation and punctuation
omitted). Given this framework, “the grant of a motion in limine
excluding evidence is a judicial power which must be exercised with
great care.” Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817)
(1995). We review a trial court’s denial of a motion in limine for an
abuse of discretion. Grant, 305 Ga. at 172 (3).
Here, the DNA evidence was certainly relevant to the issues in
the case. Indeed, as described above in Division 1, it was the critical
piece of evidence in this case. Lewis’s primary challenge regarding
chain of custody is that APD could not locate the rape kit for several
years when the Cold Case Squad wanted to retest it. Lewis raised
the chain of custody issue on the eve of trial and presented no
evidence that anyone had tampered with the rape kit. The State
14 argued that it would present testimony at trial establishing that the
swabs in the rape kit were the same ones that were collected from
the victim. Given this assurance (which was later fulfilled), Lewis
could not establish a circumstance in which the evidence would be
ruled inadmissible. His argument raised only a bare speculation of
tampering, which was an insufficient basis to exclude the evidence.
See Hurst v. State, 285 Ga. 294, 296 (2) (676 SE2d 165) (2009)
(“When there is only a bare speculation of tampering, it is proper to
admit the evidence and let what doubt remains go to the weight.”
(citation and punctuation omitted)). Therefore, the trial court did
not abuse its discretion in denying his motion in limine.
(b) Lewis’s next challenge to the admissibility of the DNA
evidence is based on the trial court’s failure to hold an evidentiary
hearing to determine whether the procedures used in this case met
the standard set forth in Harper v. State, 249 Ga. 519 (292 SE2d
389) (1982). But in challenging the admissibility of the DNA
evidence, Lewis raised only an objection related to the chain of
custody. He never argued that a Harper hearing was required prior
15 to allowing the State’s experts to testify about the DNA evidence.
Because Lewis failed to raise a Harper objection below, his claim is
not preserved for appeal. See Whatley v. State, 270 Ga. 296, 299 (6)
(509 SE2d 45) (1998) (failure to object that any of the scientific
evidence was unreliable or that any testing procedure was improper
waived issues on appeal (citing Harper, 249 Ga. at 533 (10)).3
3. Lewis argues that the trial court erred in denying his motion
to “dismiss” the statements of Mary Wise, who passed away four
months after Evelyn was killed. Lewis argues that the admission of
Mary’s statements to police violated his Sixth Amendment right to
confront witnesses, but Lewis did not preserve this argument below.
A review of the record reveals that Lewis never moved to
suppress or otherwise exclude Mary’s statements.4 His complaint
about not being able to cross-examine Mary was made in connection
3 Plain error review for this issue is not available to Lewis because he
was tried under the old Evidence Code. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012).
4 The only statements Lewis sought to suppress prior to trial were his
own. 16 with his argument in support of his motion to dismiss the indictment
on due process grounds, specifically arguing that the 18-year pre-
indictment delay prevented him from interviewing or cross-
examining Mary. When the challenged testimony was introduced at
trial, Lewis made no objection, and in fact elicited additional
hearsay statements made by Mary. Because Lewis did not move to
exclude Mary’s hearsay statements prior to trial or object to the
relevant testimony on Confrontation Clause grounds, having in fact
elicited hearsay statements about which he now complains, his
claim presents nothing for review. See, e.g., Johnson v. State, 292
Ga. 785, 787-788 (3) (741 SE2d 627) (2013) (for cases decided under
the old Evidence Code, a party had to make an objection and obtain
a ruling before or as the evidence was admitted in order to preserve
an alleged error).
4. Lewis argues that the trial court erred in sentencing him on
the burglary, aggravated assault, and rape counts because the
statutes of limitations for those crimes had lapsed prior to the
indictment. His argument fails. Lewis’s challenge to the aggravated
17 assault conviction is moot because that count has been merged. See
Long v. State, 287 Ga. 886, 888 (1) (700 SE2d 399) (2010). The
burglary and rape charges were not barred by the applicable
statutes of limitations because the limitations periods were tolled.
In criminal cases, the period of limitations runs from the
commission of the offense to the date of the indictment. See Riley v.
State, 305 Ga. 163, 167 (3) (824 SE2d 249) (2019). Rape is subject to
a seven-year statute of limitations, and burglary is subject to a four-
year limitations period. OCGA § 17-3-1 (b) and (c).5 The State has
the burden at trial to prove “that a crime occurred within the statute
of limitation[s], or, if an exception to the statute is alleged, to prove
that the case falls properly within the exception.” Harper v. State,
292 Ga. 557, 563 (3) (738 SE2d 584) (2013) (citation and punctuation
omitted).
5 The limitations statute was amended in 2012 to provide that the prosecution of certain offenses, such as rape, may be commenced at any time when DNA evidence is used to establish the identity of the accused. See Ga. L. 2012, pp. 899, 923, § 4-1. This provision, however, would be inapplicable to the rape charge here, because the amendment provided that “any offense occurring before July 1, 2012,” which is the circumstance here, “shall be governed by the statute in effect at the time of the offense.” Id., p. 949, § 9-1. 18 Here, the burglary and rape offenses would be barred by the
applicable statutes of limitations unless an exception tolled the
period. The crimes occurred in March 1991, and Lewis was indicted
in May 2009. The State alleged an exception to the statutes of
limitations, asserting that the statutes were tolled because Lewis’s
identity was unknown until April 2008. See OCGA § 17-3-2 (2) (a
statute of limitations is tolled during any period in which the
“person committing the crime is unknown or the crime is unknown”);
see also Jenkins v. State, 278 Ga. 598, 604 (1) (B) (604 SE2d 789)
(2004) (the State must plead an exception to the statute of
limitations in the indictment if it is relying on one). The person-
unknown exception applies if the State has not obtained sufficient
information to establish probable cause to arrest a particular
suspect. See Riley, 305 Ga. at 169-170 (3).
The evidence introduced at trial was sufficient for the jury to
find that the person-unknown exception applied to toll the
applicable statutes of limitations for burglary and rape. The
evidence showed that the APD placed the case into inactive status
19 in September 1991 after initial suspects were ruled out and the FBI
was unable to identify a suspect based on a DNA profile created from
the sperm extracted from the victim’s vaginal swab. The case was
not actively worked again until the rape kit was located and tested
in 2008, leading to the creation of a DNA profile in April 2008 that
identified Lewis as the likely assailant. Lewis was indicted in May
2009, eleven months after his identity became known. Therefore, the
limitations periods for the burglary and rape offenses had not
expired, and the trial court did not err in sentencing Lewis for these
offenses.
Judgment affirmed. All the Justices concur.
20 DECIDED AUGUST 5, 2019.
Murder. Fulton Superior Court. Before Judge Russell. Ronald G. Shedd, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.