Earnest Ray White v. The State

Bethel, Judge.   Earnest Ray White began serving a life sentence in 1996 following his conviction for aggravated assault, burglary, and kidnapping.^[1] He has consistently maintained his innocence, and in 2015 sought to re-open his case pursuant to OCGA § 5-5-41 (c), which provides those convicted of felony offenses with the ability to request DNA testing of evidence if, among a number of other factors, the identity of the perpetrator of the offense was at issue at trial. Because an improper legal standard was applied below, we vacate the order of the trial court and remand the case for further proceedings.OCGA § 5-5-41 (c) (1) provides that, subject to provisions regarding extraordinary motions for new trials, “a person convicted of a 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 [DNA] testing.” OCGA § 5-5-41 (c) (3) and (4) further provide that such motion must be verified by the petitioner and must show or provide a number of items of information regarding the evidence to be tested, including its location, who possesses it, and the results of any other DNA testing conducted by either the petitioner or the State during the original prosecution of the case. Assuming the petitioner complies with the filing requirements set forth in OCGA § 5-5-41 (c) (3) and (4), the trial court is required to hold a hearing on the motion. OCGA § 5-5-41 (c) (6). If the petitioner satisfies the filing requirements and persuades the judge that there is a reasonable probability that the trial verdict would have been different if the results of the requested DNA testing had been available at the time of trial and indicated the presence of a third person, the petitioner’s motion is to be granted where each of the following requirements have been established:   (A) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;

(B) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;