FILED - RM GLYNN CO. CLERK'S OFFICE Filed 7/17/2020 2:53 PM Accepted 7/17/2020 3:00 PM CASE # CR-03‘09063-063 W KM fl IN THE SUPERIOR COURT OF GLYNN COUNTY STATE 0F GEORGIA STATE OF GEORGIA, CLERK SUPERIOR COURT ) Plaintiff, ) ) vs. ) Case No. CR—0300063-063 ) DENNIS ARNOLD PERRY, ) Defendant. ) ) ORDER ON DEFENDANT’S EXTRAORDINARY MOTION FOR NEW TRIAL Before the Court for New Trial based is Defendant Dennis Arnold Perry’s Extraordinary Motion on newly discovered on the motion was held July Andrew Ekonomou, John 13, 2020, DNA evidence. An evidentiary hearing where the B. Johnson and State appeared represented by Thomas Buschemi, and Defendant Perry appeared represented by Phil Holladay, Phillip Greene, Jennifer Whitfield and Pete Robinson. After consideration of the pleadings, evidence presented, arguments of counsel, and the entire record before it and the applicable law, the Court finds as follows: STATEMENT OF FACTS After a week-long jury trial, Defendant Dennis Perry was convicted on February 14, 2003 oftihe murders of Harold and Thelma Swain. Mr. and Mrs. Swain were shot and Baptist Church killed in Ln March 11, Camden County, 1985 inside the vestibule of Rising Daughter Georgia. During the lengthy investigation into the murders spanning over 15 years, there that connected Defendant was never any physical evidence found crime scene. There was a pair of unique eyeglasses to the recovered from the scene that were believed by investigators to have belonged to the killer, which had two hairs stuck in one of the hinges. Mitochondrial conducted on the glasses prior to Perry’s trial in contributor of the hairs. A11 evidence a trial was has, at all times, maintained his innocence. As DNA testing 2003 excluded him as a possible circumstantial in nature. Defendant early as 2004 Perry sought the help of the Georgia Innocence Project to exonerate him. After he was convicted, Defendant entered into a sentencing agreement with the State, under which, in exchange for the State’s agreement not to seek the death penalty, Defendant agreed to agreement with the State, two consecutive life sentences. Defendant agreed to waive his right As part 0f this to appeal. After his conviction, Defendant filed a petition for a writ of habeas corpus in Mitchell County Superior Court challenging the voluntariness of his waiver of his right to appeal denied. and seeking the On March 16, 2015, relief of an out-of-time direct appeal, which was Defendant filed in Camden County Superior Court a motion for post-conviction DNA testing of additional evidence from the crime scene, which was granted. On June 10, 2019, Defendant filed in Coffee County Superior Court a second petition for a writ of habeas corpus, alleging that the State’s failure to disclose and preserve exculpatory evidence before and during his constitutional rights, and that trial violated his he was actually innocent. On April 27, 2020, Defendant filed the present Extraordinary Motion for New Trial Based on New DNA Evidence (“Motion”). As set forth in his Motion, Defendant obtained a voluntary hair sample from Gladys Sparre, the mother of Erik Sparre, another suspect in the Swain murder investigation. submitted the hair sample for a comparison of its mitochondrial those of the two hairs recovered Defendant then DNA profile against from the crime scene. The mitochondrial DNA profile of the hair sample from Ms. Sparre was analyzed by the same lab that in 2001 analyzed the hairs recovered from the crime scene. analysis concluded that Gladys Sparre falls within the The profiles matched. The 0.26% to 0.4% of the general population that cannot be excluded as a contributor of the hairs} mitochondrial means DNA is shared along maternal relatives (like mother and son), this that Erik Sparre also cannot be excluded as a contributor of the hairs found the crime scene. Mr. Perry contends that this in light Because new DNA evidence, when at considered of the lack 0f physical evidence connecting Mr. Perry to the crime and the evidence now connecqing Mr. Sparre to the crime, warrants a new trial. A full mitochondrial DNA profile was obtained on one of the hairs embedded in the glasses found near the body of Harold Swain, while a partial profile was obtained on the other hair. The profiles from both pairs fully match the Sparre sample across all 783 615 regions, respectively. The analysis concluded that only 0.26% of the North rind American population would atch the full mitochondrial DNA profile developed, including Erik Sparre and his maternal relatives. Only 0.4%l of would match the partial mitochondrial DNA profile developed on the second hair. ‘ 3 On May 12, 2020, the District Attorney for the Brunswick Judicial Circuit requested that the GBI re-open the investigation into this case in light of the DNA test results. That GBI At the hearing on the eight witnesses, investigation is instant motion, new ongoing. Mr. Perry presented the testimony of one of whom, Joe Gregory, was the lead GBI investigator from the first investigation in the Swain murders. Defendant submitted twenty-one including the results of the exhibits, DNA test on Gladys Sparre. ANALYSIS A. Mr. Perry’s Appeal Waiver. The Court first addresses the State’s argument that Defendant’s Motion is barred by his agreement to waive his right to appeal. Defendant contends that the scope of his appeal waiver was limited to his right to pursue a direct appeal, did not extend to post-conviction relief like procedurally barring him from this extraordinary receiving a new motion for new trial trial, and that based 0n newly uncovered evidence of his innocence would be a miscarriage ofjustice. The Court concludes that this case is directly informed by Rawles v. Holt, 304 Ga. 774, 779, 822 S.E.2d 259 (2018). In Rawles, the Georgia Supreme Court held that a criminal defendant’s ” waiver of his right to “appea does not constitute a waiver of his right to file a petition for a writ ofhabeas corpus, another form ofpostconviction relief. 304 Ga. at 779. Rather, the State must show that the Defendant specifically waived his right to post-conviction relief, which a right to appeal. See id. at is distinct from waiving 778. also held that the trial court had improperly “conflated the right to appeal with the right to a petition for a writ of habeas corpus” and did not The Rawles Court adequately inform the defendant of his right to petition for a writ of habeas corpus or inquire of him “Whether he understood that he that he could acknowledge such a waiver.” Id. It was waiving relied on that specific right so federal cases to illustrate the important distinction between a waiver of appeal and a waiver of the right to file motions for post-conviction relief. See, e.g., Lemke v. Ryan, 719 F.3d 1093, 1096 (A) (9th Cir. 2013) (“a waiver of collateral attack must be express, and . . . a plain waiver of appeal does not suffice”; the waiver appears to be limited to matters arising in the trial court apart from any collateral attack; and we construe any ambiguity in a plea agreement against the drafter—here, the State; no waiver of collateral attack when written waiver provided only that defendant “gives up the right to appeal,” and colloquy with court mentioned only waiver of right to appeal and that defendant could file petition for post-conviction relief); compare with No. 17-12944, 746 Fed.Appx. 880, 881, 2018 LEXIS 23 144 *3-4 1th Cir., WL Grifi‘z‘s v. United States, 3993837, *1, 2018 U.S. App. August 20, 201 8) (written waiver provided that 11 defendant waived his! right to appeal and his right to collaterally attack conviction and sentence on any ground; trial court inquired if defendant understood, and defendant affirmed, that he was “giving up [his] right to directly or in a post- conviction proceeding indirectly attack your sentence” (punctuation and emphasis omitted)). 2 Under Georgia law, enforceable waiver that there are was two means for the State to demonstrate a valid, voluntary, knowing, and intelligent: “First, a signed waiver may indicate that the defendant understands the right he is waiving. Second, and more important, detailed questioning of the defendant by the reveals that he was informed of his that right is sufficient to 304 Ga. at also Brant show the right to appeal trial court that and that he voluntarily waived existence of a valid, enforceable waiver.” Rawles, 777, 822 S.E.2d 259 (quoting Rush, 276 Ga. at 542, 579 S.E.2d 726); see v. State, 306 Ga. 235, 236—37, 830 S.E.2d 140, 141—42 (2019). In support of its position, the State relies S.E.2d 140 (2019). on Brant The Coult finds, however, that v. State, 306 Ga. 235, 830 Brant actually supports Defendant’s position that he did not waive his right to file this extraordinary motion for new trial based on new evidence, on his conviction. Brant engaged a habeas petition, or any other collateral attack in the to determine if a particular defendant’s 2 It should be noted that O.C.G.A. motion seeking post-conviction discretionary appeals, new trial” as “separate it same two—part analysis outlined in Rawles waiver of the right to appeal and right to § 5-6-35 also highlights that direct appeals are distinct from a relief or related proceedings where, in its mandates on distinguishes an appeal “from the denial of an extraordinary motion for from an original appeal.” 6 post-conviction reliefwas voluntary, knowing, and intelligent. Rawles, 304 Ga. and the trial at 237 (citing 777, 822 S.E.2d 259). Unlike here, the sentencing plea agreement court’s colloquy in Brant expressly provided that the defendant his right to appeal A Id. at and his comparison of Perry’s right “to seek any post-conviction relief.” Id. at waived 235—36. Brant indicates that Mr. Perry did not facts to those in render a voluntary, knowing or intelligent waiver 0f this right to seek post-conviction relief or collaterally attack his conviction based on newly discovered evidence; but only waived his right of direct appeal. Here, Perry did not sign a waiver. Thus, this Court examined the questioning ofthe trial shows court that occurred on the record that on February Mr. Perry was questioned by the 14, 2003. trial court, after The trial transcript the guilty verdict, as follows: ...[Y]ou’re Willing to give up your right t0 appeal the sentence and appealable — possible appealable giving up those rights, the State sentence here? [Perryz] Yes, is all the issues in the trial ofthis case, and for your willing to give up its right to seek the death Do you understand that? ma’am. Feb. 14, 2003 Tr. at 4. The trial court’s: questioning of Perry referenced only his “possible appealable issues in the trial of this case.” Id. “right to appeal” and At no time did Perry knowingly, voluntarily, and intelligently waive his right to pursue an extraordinary motion for new trial, Which is not an appeal, nor 7 i is it based on appealable error by the trial court. Rather, discovered after his that there it is trial. a collateral attack based on new, compelling evidence Moreover, at the was another suspect in the GBI’s time of his waiver, Perry did not know investigation, Erik Sparre, that could not be excluded as a contributor to the hairs found on the glasses at the scene. This Court finds nothing in the record to indicate that Perry was asked by the trial Court about waiving his rights t0 all post—conviction relief or collateral attack, including no reference to an extraordinary motion for find anything new trial. Nor does this Court in the record to indicate that Perry did, in fact, agree to waiving all rights to post-conviction relief or collateral attack. As a result, the Court finds that Perry did not knowingly, voluntarily, and intelligently waive his right to file an extraordinary motion for The Court finds new trial based on the newly that the State has failed to knowing waiver of Defendant’s discovered meet its DNA evidence.3 burden of showing a right to file this extraordinary motion for new trial. Moreover, even ifDefendant had waived his right to post-conviction relief, the Court finds that applying a procedural bar to Defendant’s Motion given the compelling 3 The Court acknowledges that Sentencing Orders were later entered in Mr. Perry’s case on March 10 and 16, 2003, which described Mr. Perry’s waiver as encompassing “all of his post—trial motions including, but not limited to, any of his appeal rights.” (March 10, 2003 and March 16, 2003 Sentencing Orders). However, these Sentencing Orders were prepared and submitted ex parte, and A.D.A. Johnson acknowledged that he had not received approval from Mr. Perry or Mr. Perry’s counsel for the orders which purported to significantly expand the waiver beyond what was agreed to by Mr. Perry as reflected in the trial transcript. (March 3, 2003 Letter from J. Johnson to J. Williams). On this record, the Court cannot conclude that Mr. Perry knowingly consented or agreed to the scope of the waiver included in the Sentencing Orders that were unilaterally submitted by the State. 8 nature of the DNA evidence and the extraordinary circumstances of his case, would be a miscarriage ofjustice and contrary to the public policy of this state. Timberlake Factors B. The requirements for granting an extraordinary motion for new trial based on newly discovered evidence are well-established. To obtain a new trial, the movant mu§t demonstrate: evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a (1) that the not cumulative only; (5) that the affidavit of the Witness himself should be procured 0r its absence accounted for; different verdict; (4) that new it is be granted if the only effect of the evidence will be to impeach the credit of a witness. and (6) that a Timberlake v. State, follow, the Court trial will not 246 Ga. 488, 491 (1980) finds that (citation omitted). For the reasons that Mr. Perry has met his burden, and his motion is not barred by his agreement to waive his right to appeal. Considering Defendant’s motion 0n and Timberlake, the Court concludes extraordinary motion for l. that its merits pursuant to O.C.G.A. § 5-5-41 Defendant has met the requirements for an new trial based on newly discovered The Evidence Has Come to Defendant’s evidence, as follows: Knowledge Since the Trial The record reflicts that Defendant only learned after his trial of the new DNA evidence linking Erik Spane to the crime scene. Although Erik Sparre was a suspect in the initial investigation, at that time the GBI did not test his DNA against the hairs 9 found on the glasses Evidence offered at the scene. at the Defendant was convicted on February hearing reflects that Defendant obtained a hair sample from Erik Sparre’s mother on February 24, 2020. the results of mitochondrial On March 26, 2020, Defendant received DNA analysis of the Sparre hair sample from the same nationally-accredited lab that the State used in 2001 to perform hairs not 14, 2003. found on the eyeglasses that were found become aware of the new at the DNA evidence until DNA testing on the crime scene. Thus, Perry did The long after his conviction. first Timberlake factor is thus met. 2. It Was Not Owing to Want of Due Diligence that Defendant Did Not Acquire The Court finds the DNA Sample Sooner. sample for Erik Sparre until March 2020 is not due to lack of due diligence. Defendant voluntarily submitted to mitochondrial trial, which excluded Defendant glasses. And DNA that Defendant’s failure to obtain a mitochondrial the Court finds DNA testing conducted before his as a possible contributor of the hairs found that on the under the circumstances here, obtaining a sample from an alternate suspect’s mother (or the suspect himself) DNA is an extraordinary investigative effort that exceeds the “reasonable” and “ordinary” diligence expected of an incarcerated individual. The Court heard testimony from Joe Gregory, the GBI agent assigned Swain case for more than a decade, who of leads for the Swains’ killer. to the testified that police investigated hundreds Moreover, and as explained below, the State had 10 previously concluded that Mr. Sparre had an alibi the night of the murders that 5 caused the State to turn alibi its focus to other suspects, not knowing at the time Sparre’s may have been a fabrication. Furthermore, the parties stipulated that Defendant has been indigent since his criminal conviction, and the Court heard testimony that Defendant had also been unrepresented by counsel for most of that time, while the type of mitochondrial testing DNA used on the hair sample from Gladys Sparre would have cost $2,500 in 2003 ($3,000 today), and each hair sample takes a significant amount of time to undergo the process of extraction, sequencing, analysis, and comparison. Given the numerous alternative suspects investigated eighteen—year investigation, the fact that this of other suspects was not available lack of due diligence on Pen'y’s at the part. by the State in its DNA analysis of one of those hundreds time of Perry’s See Watkins v. trial was not the result of a Ballinger, 840 S.E.2d 378, 381 (Ga. 2020) (describing “due diligence” as “the diligence reasonably expected from, and ordinarily exercised by, a person discharge an obligation”). seeks to satisfy a legal requirement or to The Court also finds nothing in the record suggesting that law enforcement ever pursued investigation leading lip to Perry’s The Court finds who DNA testing of Mr. Sparre as part 0f trial. that the second Timberlake factor 11 is met. their 3. The New DNA Evidence Is So Material That It Would Probablv Produce a Different Verdict. The Court finds material that, had it that the new been introduced DNA evidence presented by Defendant at his trial, it is so probably would have produced a different verdict. The new DNA evidence reliably links another suspect, Erik Sparre, to the key piece ofphysical evidence found at the crime scene: a pair ofunique eyeglasses that investigators long believed belonged to the killer. duly qualified expert Gloria Dimick, the analyst the Sparre hair sample, credible the evidence presented 0.26% to glasses recovered who performed the testimony of the comparison of and accepts her conclusions. The Court finds by Defendant 0.4% of the population The Court finds that establishes that Erik Sparre falls within the that could have contributed the hairs found on the from the crime scene. In addition, the record reflects and the parties agree that law enforcement previously investigated Erik Sparre as the possible murderer of Harold and Swain. Thelma Among other things, law enforcement and D.A. ’s office established probable cause and executed a search warrant on his family’s home in 1986 for evidence of his involvement in the; murders. Importantly, Defendant presented evidence that the reason Mr. Sparre further pursued as a Gregory testified suspect—his alibi—is likely false. that the alibi established for Erik Sparre in 12 GBI was not investigator Joe 1986 was based on a phone call from a man Who identified himself as “Donald A. Mobley,” and who claimed to be Erik Sparre’s manager Winn-Dixie in Brunswick where Mr. at the Sparre worked at the time 0f the murders. At the hearing, Defendant offered the testimony of the actual manager of that store for the relevant time period—David B. Mobley—who testified that he did not recall speaking to law enforcement about Erik Sparre. And the identifying information provided to “Donald A. Mobley” identifying himself as birth, social security in Agent Gregory by the person March 1986—such as his date of number, and address—did not match that of David B. Mobley.4 In considering the issue of materiality, this Court also has considered the Clerk’s record in this case. That record reveals that the circumstantial evidence against Mr. Perry presented at trial this was weak new physical evidence. See Carl v. State, relative to the compelling nature of 234 Ga. App. 61, 62, 506 S.E.2d 207, 210 (1998) (court must “consider the strength and weaknesses of both the and the defendant’s case and the nature and strength of evidence”), disapproved 0n other grounds, Schofield 4 v. State’s [the] defendant’s new Halsey, 281 Ga. 809, 811 While the Court did not rely on hearsay or otherwise inadmissible evidence for its analysis and findings herein, the Court nonetheless notes for the record that the materiality of the new DNA evidence linking Mr. Sparre to the physical evidence found at the crime scene was corroborated by other evidence received by the Court, which necessarily was given its apprOpriate weight. Defendant presented evidence that Mr. Sparre boasted on a recorded telephone call within a year of the murders that he killed two African Americans at a Camden County church, that he repeated similar inculpatory statements to an ex ife and other witnesses, that another of Mr. Sparre’s ex-wives selected the eyeglasses scene out ofa line— p and identified them as looking like a pair ofglasses belonging to him, that he owned a pair of boots similar to those witnesses described as being worn by the killer, that he was a welder (the unique eyeglasses found at the scene Had pitting that was common in welder’s protective eyewear), and that he was violent found at the ' and racist. 13 642 S.E.2d 56, 60 n.1, transcripts n.1 The Court has specifically reviewed (2007). from Mr. Perry’s 2003 trial, which reveal that the case against the Mr. Perry was based on circumstantial evidence built in large part around the testimony of Jane Beaver.5 The State had no physical evidence connecting Mr. Perry The eyeglasses found scene. embedded scene did not match Mr. Perry’s prescription or at the eye geometry, Mr. Perry had an to the crime alibi, and the DNA evidence obtained from the hairs in the glasses conclusively excluded Mr. Perry as a contributor of those hairs. It is not Defendant’s burden on an extraordinary motion for the murders result in a different verdict at his own The Court finds that the new DNA evidence concerning Erik Sparre meets this standard. 13, solve beyond a reasonable doubt. Rather, Defendant must only show that this newly discovered evidence would probably trial. new trial to 2020) (citing See State (“DNA Boothe 4. v. The v. Gates, No. evidence State, is $19A1 130, 2020 likely to WL 227513, at *15 (Ga. Mar. be especially resonant with a jury . . . .”) 293 Ga. 285, 291-294, 745 S.E.2d 594, 599 (2013)). DNA Evidence Is Not Cumulative Only. Evidence was introduced at the hearing that Ms. Beaver sought, and later received, a substantial reward in exchange Mr. Perry’s conviction. The Court’s review of the pretrial hearing transcripts reveal that the inducement and ultimate payment of a reward to Ms. Beaver was not disclosed to the Court, Mr. Perry, or his counsel. At a pretrial motions hearing addressing discovery motions, for example, the State denied to the Court and defense counsel that there were any “djeals, promises, or inducements” with respect to the State’s witnesses. Aug. 8, 2002 Hr’g. Tr. at 33. Following MrfJohnson’s representations, defense counsel Dale Westling told the Court he also was 5 for helping to secure not aware of any deals, promises, or inducements. Id. at 34. 14 The Court finds mitochondrial DNA that the DNA new evidence is not cumulative. evidence concerning Mr. Sparre, nor any other evidence concerning Mr. Sparre, was introduced at Defendant’s trial. That the Affidavit of the Witness Himself Is Procured or 5. No Absence Accounted For. Because Defendant’s Motion requirement does not apply. Its is not based on witness testimony, this The Court nevertheless finds that Defendant offered testimony from multiple witnesses at the hearing, including the duly qualified forensic DNA examiner who conducted the mitochondrial DNA analysis on the hair sample obtained from Gladys Sparre. The Effect of the 6. DNA Evidence Is Not Onlv to Impeach the Credit of a Witness. Finally, the to Court finds that the effect of the impeach a witness from Defendant’s trial. new The new DNA evidence is not only DNA evidence is reliable, substantive forensic evidence indicating that another suspect, Erik Sparre, been present 2003 trial at the crime scene. There was no evidence presented regarding Mr. Sparre or his whereabouts on March Defendant’s at 11, 1985. Dennis Perry was convicted of a double murder eighteen years without any physical evidence connecting him to the crime scene. DNA may have after the fact Newly discovered evidence links another suspect, one Whose alibi for the night of the murders may have been fabricated, to the key piece of evidence recovered from the crime 15 scene. Perry has provided the Court with compelling t0 the jury at his trial, entitling him to a new new evidence that, if presented probably would have produced a different outcome, thereby trial. Accordingly, Defendant’s Extraordinary Motion for New Trial is hereby GRANTED. SO ORDERED this l 7 fl day of July, 2020. MWM, , L . STEPHEN G. SCARLETTZ, SR. CHIEF JUDGE SUPERIOR COURTS BRUNSWICK JUDICIAL CIRCUIT 16