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Howard v. State

Post-conviction motion for DNA testing denied because testable evidence from defendant's 1989 trial had since been destroyed with bad faith on the state's part.

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Joseph L. Howard appeals from the denial of his post-conviction motion for deoxyribonucleic acid “DNA” testing filed pursuant to OCGA § 5-5-41 c. Discerning no reversible error, we affirm. In 1989, a jury found Howard guilty of burglary and rape, and the trial court sentenced him to 20 years and life imprisonment, respectively. In Howard’s direct appeal, this Court affirmed the conviction in an unpublished opinion, Case No. A90A0469, on May 9, 1990. Twenty years later, Howard filed this pro se “Request for D.N.A. Testing,” seeking the production of all physical evidence and testing of certain material containing DNA. Following an evidentiary hearing at which Howard appeared and argued, the trial court denied Howard’s motion, giving rise to this appeal.1

OCGA § 5-5-41 c 1 provides in part that “a person convicted of a serious violent 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 deoxyribonucleic acid DNA testing.” The statute then enumerates certain prerequisites that must be met to obtain DNA testing.2 When, as here, a hearing is warranted3 and held, the purpose of the hearing is in part “to allow the parties to be heard on the issue of whether the petitioner’s motion complies with the statute . . . and whether . . . the evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion.”4 If the trial court determines that this showing has been made and other requirements have been met, the trial court must grant the motion for testing.5

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