In 1984 Eddie Crawford was convicted and sentenced to death for the murder of his 29-month old niece, Leslie English. This first conviction was reversed on appeal to this Court based on an ambiguity in the jury’s verdict. Crawford v. State , 254 Ga. 435 330 SE2d 567 1985. Crawford was then retried in 1987, whereupon he was again convicted and sentenced to death. Crawford v. State , 257 Ga. 681 362 SE2d 201 1987. Crawford’s subsequent state and federal habeas petitions failed. See Crawford v. Head , 311 F3d 1288 2002, cert. denied, __U. S.__ 124 SC 408, 157 LE2d 293 2003. On October 15, 2003, Crawford filed an extraordinary motion for new trial that included a request for DNA testing of certain items not previously tested or used as evidence at his trial. For the reasons set forth below, we conclude that this appeal has been properly classified as an application for discretionary appeal, and we affirm the trial court’s denial of Crawford’s request for DNA testing. 1. Upon the denial of his extraordinary motion for new trial and the denial of his related motion for DNA testing, Crawford filed a notice of appeal in the trial court and a brief in this Court. This Court construed Crawford’s brief as an application for discretionary appeal, granted that application, and granted a stay of execution in order to consider, not only the merits of Crawford’s case, but also any questions concerning the proper form of appeal applicable in such cases.
At least prior to the 2003 amendment of OCGA § 5-5-41 which added subsection c, the denial of an extraordinary motion for new trial unrelated to an original appeal could only be appealed by the filing of an application for discretionary appeal in the proper appellate court. OCGA § 5-6-35 7. Crawford argues, however, that he is entitled to a direct appeal of the trial court’s denial of his request for DNA testing based upon the following portion of the recent amendment to OCGA § 5-5-41: The petitioner or the state may appeal an order, decision, or judgment rendered pursuant to this Code section. OCGA § 5-5-41 c 13. We conclude that this language emphasizes the General Assembly’s intent that the denial of a motion seeking DNA testing made as part of an extraordinary motion for new trial be recognized as an appealable issue, but we also conclude that the filing of an application for discretionary appeal is the proper form of appeal in such a case. Concluding otherwise would yield the absurd result that the denial of an extraordinary motion for new trial would be appealable only as a discretionary appeal while the denial of a motion seeking DNA testing filed as part of that extraordinary motion for new trial would be appealable directly.
