IN THE SUPERIOR COURT OF CAMDEN COUNTY STATE OF GEORGIA

Transcription

1 IN THE SUPERIOR COURT OF CAMDEN COUNTY STATE OF GEORGIA ) STATE OF GEORGIA ) CRIMINAL ACTION NO. ) v. ) 2000-CR-4 ) DENNIS ARNOLD PERRY, ) ) Defendant. ) DEFENDANT S EXTRAORDINARY MOTION FOR POST-CONVICTION DNA TESTING COMES NOW, Defendant Dennis Arnold Perry, and pursuant to O.C.G.A , moves the Court for post-conviction DNA testing. In support of this Motion, Defendant shows the Court the following: 1. Facts of the Case On March 11, 1985, Harold and Thelma Swain ( the Swains ) were killed at Rising Daughters Baptist Church on U.S. 17 in Waverly, Georgia. Because the investigation and prosecution of this crime spanned nearly two decades, the following presentation of facts will be fairly extensive. A. The Crime On the night of the murders, the Swains were attending a mission meeting at Rising Daughters Baptist Church, a predominantly African American church, along with approximately nine other women from several area churches many of these witnesses are now deceased. (Trial Transcript, 1 vol. II, p. 3). The meeting attendees began arriving at the church around 7:00 1 The trial transcript is comprised of volumes I through IV. Subsequent citations to the trial transcript will be cited as T(volume number), p. (page number)).

2 pm. (Id. at 3, 29, 58). Shortly before 9:00 pm, 2 Vanzola Williams excused herself early from the meeting because she needed to pick up her daughter from work. (Id. at 58). When Ms. Williams exited the main room of the church and entered the church s small vestibule area, she was startled to see a white man leaning against the wall. (Id.). Ms. Williams asked the man if she could help him and he indicated he wanted to talk to someone in the main room of the church. (Id. at 59). The man put his head through the swinging doors and pointed at Harold Swain, saying that he wanted to talk to him. (Id. at 60). A few of the women caught a glimpse of the man when he peered into the church and pointed at Harold Swain. Ms. Williams then left the man in the vestibule, re-entered the main room to get Harold Swain, and returned to the vestibule with Mr. Swain. (TII, p ). After hearing a brief exchange between the man and Mr. Swain, Ms. Williams left the church and headed toward her car. (Id. at 61). Shortly after Mr. Swain and the man entered the vestibule, witnesses inside the church reported hearing a scuffle, quickly followed by four gunshots. (Id. at 5, 36-37). Ms. Williams, who was outside in the church yard, also heard four gunshots before she reached her car. (Id. at 61). After hearing the shots, Thelma Swain ran from the front of the church and opened the swinging doors to the vestibule. (Id. at 6, 37, 114). When the doors swung open, the man fired a single shot at Mrs. Swain. Cora Fisher was standing at her seat in the pews when she saw the man shoot Mrs. Swain. (TII, p. 114; Exhibit J, p. 1). Fisher tried to run but she fell to the floor and passed out. (TII, pp. 23, 115). All of the other women inside the church ran to the back room of the church to take cover. (Id. at 6, 38). Outside, Ms. Williams ran around the church and re-entered through a back door. (Id. at 61-62). The women tried to use the telephone to call for help but found that the phone lines were down. (Id. at 6, 62). After a period of time, 2 Witnesses differ slightly in recounting the time of the incident; however, all agree that it began at 9:00 pm or slightly earlier. 2

3 Marjorie Moore fled to her car and drove down the road to a convenience store to get help. (Id. at 6-7, 38, 62). The police arrived at the church shortly thereafter. B. The First Investigation Just after the shooting, Butch Kennedy of the Camden County Sheriff s Office and Joe Gregory of the Georgia Bureau of Investigation were dispatched to the church and handled the crime scene investigation. (TII, p. 205). When investigators entered the vestibule, they found the Swains lying on their backs in pools of blood. Mr. Swain was shot three times in the chest and once in the back of the head. (Id. at 169). Mrs. Swain was shot once in the upper chest area. (Id. at 166). Although it was clear that a scuffle had occurred between Mr. Swain and the perpetrator, no blood samples were collected from the scene, because it was assumed that all the blood belonged to the victims. (TIII, p. 117; TIV, p. 267). At the scene, investigators located and collected many pieces of physical evidence, including: three pairs of eyeglasses, five small caliber bullet casings, five dark blue plastic shirt buttons, one white plastic shirt button, two Pepsi bottles, 3 a smudged mirror from inside the vestibule, four pieces of cut telephone line, and the top of the telephone connector box with visible smudges or fingerprints. 4 (TII, pp. 215, , 221, 224, , 234; TIII, p ). 3 Leona Rayson (Leona Hamilton Reed), who had been working near the church at Reed s Store on the night of the murders, said that an unidentified white male with blonde hair and glasses had entered the store approximately an hour and a half before the shootings. (Bundy investigation summary, p. 4, attached hereto as Exhibit A). The man purchased a Pepsi and had to go outside to his car to retrieve additional change to pay for the purchase. (Id.). He was wearing a jean jacket with dark jeans and a shirt. (Agent Sweat interview summary, p. 1, attached hereto as Exhibit B). Rayson described the vehicle the man was driving as an orange or burnt orange Plymouth-type vehicle. (Id.). She reported that when the man left, he drove in the direction of either I-95 or South US 17, toward the church. (Id. at 2). 4 Much of the physical evidence collected from the crime scene was lost before Dennis Perry s trial in (TI, p ). The only physical evidence remaining at trial was: the five bullets recovered from the victims bodies, five shell casings, five dark blue buttons, and three pieces of telephone wire. (TII, pp. 167, 172, 219, 222; TTIII, p. 92). 3

4 The day after the murders, investigators took initial statements from the women who were inside the church at the time of the shooting. While all the witnesses agreed that the perpetrator was a young white man, the remaining details of the witnesses descriptions varied widely. (See infra Section 4(B)). Yet, because the man was a stranger to all the witnesses, investigators had nothing more than these vastly different descriptions with which to identify a suspect. Immediately after the murders, investigators received a large number of tips. Early in the investigation, Dennis Perry was identified as a suspect when investigators received an anonymous tip from a local individual. (TIV, p ). Investigators quickly eliminated Perry as a suspect, however. They learned that Perry had moved from Camden County to Jonesboro, Georgia (near Atlanta) to live with his mother after he injured his back in a hunting accident in late 1984, approximately three months before the murders. (Id. at ). On the date of the crime, Perry was still living and working several hours away from Camden County, where he was employed by a concrete company. (Id. at 189, 191, ). Investigators spoke to Perry s foreman and he was cleared as a suspect based partially on this conversation and based on the fact that Williams, the witness that had the most interaction with the shooter, failed to pick Perry out of a photographic lineup shortly after the crime. (Id. at 84-85, 295). In the late 1980 s the Swain murders were featured on an episode of the television show Unsolved Mysteries. After the show aired, investigators again received a large influx of tips; however, the tips never led to any arrests. (Id. at 301, 310). The 1985 murder case went cold. C. The Second Investigation In 1998, thirteen years after the murders, the Camden County Sheriff s Office hired Dale Bundy as a detective to work solely on the Swain case. (Id. at 51). When Bundy began re- 4

5 interviewing witnesses in the case, he learned that about seven years after the Swains were killed, a woman came to Cora Fisher s house and showed her a photograph of a man and a child. (TIII, pp. 195, 196; TIV, p. 14). Fisher froze up when she saw the picture and testified that the man in the picture was the same man that shot the Swains in the church in (TII, p. 121). When pressed for information about the identity of the killer, Fisher stated only that the perpetrator s grandfather lived in a white house near the intersection of Spring Bluff Road and Dover Bluff Road; based on this information alone, Bundy believed that Fisher was describing Dennis Perry. (TIV, p. 13). One week later, Bundy showed Fisher a single photograph, the mug shot of Dennis Perry, and she identified him as (1) the man in the photograph the woman brought her, and (2) the man at the church on the night of the murders. 5 (Id. at 16). Vanzola Williams, who had failed to identify Perry from a photographic lineup shortly after the crime, also identified Perry as the killer after Bundy showed her a single photograph of him. (Id. at 17). Jane Beaver, the woman who showed Fisher the photograph of Dennis Perry, is the mother of Perry s ex-girlfriend, Carol Ann (Young) Raborn. (TIII, p. 170). Beaver testified that about three weeks before the murders, Perry told her that he had tried to borrow money from his grandfather s black neighbor, but the man laughed in his face. (Id. at ). Beaver also said that Perry threatened to kill the man but never used his name. (Id. at 218). Beaver s daughter testified at trial that Perry called her and said that he had ridden down from Jonesboro on the 5 This interaction took place at Fisher s home after Bundy called ahead and learned that Fisher had fallen and was unable to get up from the floor. (TIV, p ). After calling 911, Bundy arrived to find that a neighbor had helped Fisher into a sitting position. (Id. at 16). Fisher made this identification while sitting on the floor waiting for an ambulance. 5

6 back of a motorcycle, broken into his grandfather s house, and was riding back the same night although she could not remember the date of the call. 6 (Id. at 173, 174). On August 20, 1998, Bundy went to Florida to interview Dennis Perry at his home. (TIV, p. 21). According to Bundy, during the interview Perry said that he was in Atlanta at the time of the murders and had never been interviewed by law enforcement regarding the Swain murders. (Exhibit A, p. 4). Perry also stated that he knew of Harold Swain but had never met him. (Id.). Bundy s report also stated that when speaking of the Swain murders, Perry said that he wouldn t do something like that and didn t even own a handgun. (Id.). Perry was never contacted again by law enforcement until January 13, On that day, Dennis Perry was on his way home from work when he was arrested for the 1985 Swain murders. (TIV, p ). He was immediately taken to the Florida Department of Law Enforcement in Jacksonville, Florida for questioning. (Id. at 24-25). Although the 1998 interview done at Perry s home was recorded, the interrogation that took place while Perry was in police custody was not recorded. 7 (Id. at 141, 142). In fact, only one of the three investigators present during the interrogation took notes during the questioning, and those notes were destroyed after a brief summary of the interrogation was created. (Id. at 122, 146, 165). The interrogation was nearly three hours long, beginning at 7:32 pm and ending at 10:15 pm, yet the complete summary of the interrogation is approximately two pages long. (See, Interrogation summary, attached hereto as Exhibit C). During the interrogation, Perry again explained that he 6 Agent Rhodes testified at trial that Carol Ann said the phone call was on March 10, the day before the murders, but admitted that he failed to record the interview even though it was his regular practice and he knew the content of the interview would be important to the case. (TIII, pp. 180, 185, 187). Suzie Wilson, Perry s grandmother, testified that nobody had broken into her home around the time of the murders. (TIV, p. 175). 7 Agent Rhodes testified that he had recorded several witness interviews in the case and did have a tape recorder with him at the time, but [i]t just didn t cross my mind at the time to turn on a recorder. (TIV, pp. 141, 142). 6

7 was in Jonesboro, Georgia on the night the Swains were killed and was not involved in the murders. (TIV, p. 28). After about an hour, officers concluded the interview and planned to escort Perry to jail. (Id. at 32, 142). Before exiting the building, Perry was briefly left in the custody of Detective Bundy, who testified that Perry said he could have taken a motorcycle trip down to Camden County but did not specify when this may have happened. 8 (Id. at 32-33, 109). Perry was then taken back into the office area where the interrogation resumed. (Id. at 112). Because the interrogation was not recorded and the only notes taken contemporaneously with the interrogation were destroyed, the summary and the testimony of the investigators provide the only insight into what was said during the interrogation. Perry reportedly said that he was drinking and using drugs and does not remember much of what happened around the time of the murders. (Id. at 133). While the interrogation summary states that Perry told investigators he could have been at the church the night of the incident but could not remember, Bundy testified at trial that Perry responded yes when asked whether he was at the church that night. 9 (Id. at 117). Perry also reportedly responded in the affirmative to the following inquiries: whether the shooting was an accident, whether the gun went off by accident, and whether Perry would make it right if he could. (Id. at ). When prodded about a hypothetical motive for the murder, Perry said, I think someone ran out of gas and someone needed money. (Exhibit C, p. 3). When Perry was asked a specific question that implied he had personal knowledge of the actual crime where the gun used in the murders was located he immediately stated that the investigators were trying to put words in his mouth, began recanting 8 Other investigators testified that Perry said he rode on a motorcycle down to Camden County on the weekend before the murders. (TIV, p. 133, 159). 9 Bundy insisted that Perry made this statement and had no explanation for the fact that it was not included in the interrogation summary. (TIV, p. 117). 7

8 his earlier statements, and refused to make any additional statements. (TIV, pp. 161, 162; Exhibit C, p. 4). D. Alternate Suspects Although Detective Bundy eventually settled on Perry as the suspect in this case, police received enough tips and information about potential suspects over the many years of investigation to fill two large boxes. (TIII, p. 119). One primary alternate suspect theory that Donnie Barrentine had committed the murders was presented by the defense at trial. Donnie Barrentine became a suspect in the Swain murders in June, 1985 when an anonymous caller reported that Barrentine confessed that he was the killer, even showing the caller the weapon he claimed to have used to commit the murders. (Telephone Call Log, June 1985, attached hereto as Exhibit D). Vanzola Williams viewed a live lineup about four months after the murders and identified Barrentine as the Swains killer. (TIII, p ). After this witness identification, investigators went so far as to prepare a warrant to arrest Barrentine for the Swain murders, but the warrant was never submitted to a judge because the district attorney thought the witnesses against Barrentine were prostitutes and dope-heads. (TIV, p. 286). After being arrested on July 5, 1985 in McRae, Georgia on dangerous weapons charges, Barrentine and his two associates were transported to Camden County for questioning about the Swain murders. (TIV, p. 197). One of the associates, Jeff Kittrell, gave a statement to the investigators working the Swain murder case. Kittrell explained that on the day they were arrested, they had traveled from Marianna, Florida to Macon, Georgia and planned to hit a guy for his cocaine stash, shoot him and then burn his house down. (Kittrell Interview Summary, July 15, 1985, p. 2-3, hereto attached as Exhibit E). They were instructed by Donnie 8

9 Barrentine s cousin, Greg Barrentine, to cut all the telephone lines around the house before they went inside. (Id. at 2). Kittrell also told investigators that he had been at a party with Donnie Barrentine in Florida when Barrentine was waving a gun around and saying that he was God because he could put man on the earth and take man off the earth. (TIV, p. 229). Barrentine then stated that he and his partner shot a preacher at a church in Georgia. (Id.). Sue Ellen Wilkes, who was at the same party, confirmed that Barrentine made these incriminating statements. (Id. at ). According to Kittrell, the murder of Harold Swain was intended to draw his son-in-law, Lawrence Brown, out of hiding to pay his drug debt to Barrentine s cousin. (Voluntary Statement by Jeffrey Kittrell, December 10, 2001, hereto attached as Exhibit G). Barrentine was given immunity by the State and was called as a defense witness at Dennis Perry s trial. (TIV, p. 199). Barrentine denied any involvement in the murders but could not remember whether he made the incriminating statements at the party. (Id. at 196, 197, ). Barrentine s time card showed the he worked on March 11, 1985, the date of the murders, until 3:29 pm but did not show up for work the next day. (Barrentine Time Card, hereto attached as Exhibit F). He returned to work at 7:00 am on March 13, (Id.). At Perry s trial, Barrentine offered no explanation for his absence from work on the day after the murders. (TIV, pp , ). E. The Trial Dennis Perry s case was transferred from Camden County to Glynn County and the trial began on February 10, Of the seven eyewitnesses interviewed by police shortly after the murders, four testified at trial. None of the eyewitnesses were asked to identify Dennis Perry as the shooter in the courtroom during their trial testimony. Despite the lack of any physical 9

10 evidence connecting Dennis Perry to the crime, he was convicted of two counts of murder on February 14, 2003 and received two consecutive life sentences. A. Five Shirt Buttons 2. Evidence Potentially Containing DNA While processing the crime scene, investigators located five dark blue plastic four-hole shirt buttons in the vestibule of the church. (TII, p ). The buttons were strewn from the far right side to the far left side of the vestibule. (Id. at 219; Diagram of Vestibule of Rising Daughters Church, hereto attached as Exhibit H 10 ). These buttons did not come from Harold Swain s clothing. 11 (TIII, p. 42). Further, some of the witnesses described the shooter as wearing dark clothing, which would be consistent with the dark blue buttons found at the scene. The perpetrator that owned and wore the button down shirt would have left his DNA on the shirt buttons. Investigators collected the buttons in a film canister and they were introduced at trial as State s Exhibit 18. (TII, pp. 205, 219; TIII, p. 149). The buttons are currently in the custody and control of the Glynn County Superior Court Clerk. B. Telephone Wire When investigators arrived on scene and spoke to the witnesses, they learned that the church s telephone was dead and determined that the telephone wires outside the church had been cut. (TII, p. 220). Investigators collected the wires as evidence to check for fingerprints and to determine whether they could identify the type of instrument used to cut the wires. (Id. at 221). When investigators removed the wires they collected three separate pieces of wire. (Id. at 10 The dark blue buttons are labeled as items A-E on the diagram of the vestibule. 11 While there is no testimony on the record that the buttons did not belong to Mrs. Swain, unlike Mr. Swain, she was not involved in any struggle with the perpetrator and, thus, there would be no reason for buttons to have been torn from Mrs. Swain s clothing. Further, there is no indication that any of Mrs. Swain s clothing was missing buttons. 10

11 222). All three pieces of wire were introduced at trial as State s Exhibits 13, 22 and 23. (Id.; TIII, p. 149). The perpetrator that cut the telephone wires would have left his DNA on the wires when he was handling and cutting them. The three telephone wire segments are currently in the custody and control of the Glynn County Superior Court Clerk. C. Five Shell Casings Investigators also collected five.25 caliber brass shell casings from the vestibule of the church, which were left behind by the shooter. (Id. at 215; Exhibit H 12 ). The casings were scattered throughout the vestibule, but three were found very close to Harold Swain s body. (TII, p. 216; TIII, p. 31). The five shell casings were introduced at trial as State s Exhibit 17. (TII, p ; TIII, p. 149). The shooter s DNA would have been deposited on the shell casings when he handled them and loaded the gun. The shell casings are currently in the custody and control of the Glynn County Superior Court Clerk. 3. Lack of DNA Technology at Trial Dennis Perry was convicted in February, At the time, the GBI was unable to perform DNA testing on the shirt buttons, the telephone wire or the shell casings. Technology has advanced in recent years such that it would allow for a DNA profile to be developed from evidence currently available in Mr. Perry s case. The GBI is now able to test the buttons, telephone wire and shell casings for Contact DNA, a test that was not being performed by the lab in Contact DNA was first discovered in 1997 by Richard Eikelenboom, a forensic scientist in the Netherlands. In 2005, Bode Technology Group began testing for contact DNA in their private labs. In 2006, the scientific community started to take note of the new technique as 12 The brass shell casings are labeled as items H-L on the diagram. 11

12 it began to circulate through various forensic conferences and courses. National recognition of contact DNA came in 2007 when Mary Lacy, the Boulder County District Attorney, used the technique to exclude JonBenet Ramsey s family as suspects in the still-unsolved child murder case. Lacy used contact DNA analysis to test skin cells found on the murdered child s pajamas. Since 2007, many private labs have been performing contact DNA analysis. Contact DNA analysis is a process that uses genetic material found in skin cells to produce a DNA profile that can be found on nearly anything a particular person has touched. The process allows for the collection of minute amounts of genetic material to produce an accurate DNA profile that labs previously were unable to obtain using then-existing technology. Contact DNA analysis requires as little as seven or eight skin cells from the outermost layer of the skin. The genetic material found in the skin cells is then replicated using the traditional PCR amplification technique, at which point it is analyzed like any other biological substance, such as blood, semen, or saliva. Through the use of contact DNA analysis, items as varied as a doorknob, the collar of a shirt, and a weapon have provided law enforcement with complete and reliable DNA profiles. 4. Identity Was a Significant Issue in the Case Identity is the crux of this case common sense dictates that in a case unsolved for fifteen years, the identity of the perpetrator is necessarily a central issue. In this case, the perpetrator was a stranger to all the witnesses in the church. None of the women were able to tell investigators who the man was and few were able to provide a physical description. Thus, the identity of the perpetrator was the primary concern of investigators who were tasked with developing a suspect. 12

13 To further demonstrate the significance of the issue of identity in this case, it is important to note that investigators were forced to rely entirely on the eyewitnesses at the church to identify the perpetrator, due to the complete absence of any physical evidence connecting Mr. Perry to the Swain murders. 13 The eyewitness descriptions and following identifications in the case were unreliable, contradictory, and contaminated. A. The Eyewitness Descriptions of the Perpetrator Were Unreliable. Other than Vanzola Williams, all of the witnesses got a very quick look at the perpetrator, no more than a couple of seconds. Vandora Baker testified that she just took a little glimpse at him. 14 (TII, p. 7-8). Similarly, Lettie Frazier explained that she only saw the man once, when he stuck his head around the door to look into the church, and she would not be able to identify the man even right after the incident. (Id. at 37, 50). Cora Fisher briefly saw the man twice, once when he was behind Ms. Williams at the door and once when Ms. Swain swung open the door and was shot by the perpetrator;; however, at that time all [she] could see was the pistol. (Id. at 139, 141, 147). These three eyewitness descriptions are unreliable because the women had a very short viewing period. 15 Ms. Fisher s ability to retain information about the perpetrator and her subsequent identification would also have been affected by her admitted focus on the perpetrator s weapon and, therefore, lack of focus on the perpetrator himself As discussed above, investigators also relied on their own eyewitness testimony that Mr. Perry made generic, hypothetical and unrecorded incriminating statements. 14 Contrary to all the other witnesses who say the man just stuck his head in the door to look inside the church, Baker testified that the man walked into the main area of the church and down the center aisle. (TII, p. 16). 15 In the context of eyewitness identification, scientific studies have shown that when a witness is exposed to a suspect for a longer period of time, it results in greater accuracy in later identifying the suspect. National Research Council, Identifying the Culprit: Assessing Eyewitness Identification, p. 67 (2014) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). 16 Research suggests that the presence of a weapon at the scene of a crime captures the visual attention of the witness and impedes the ability of the witness to attend to other important 13

14 Further, as all of the witnesses were African American and the perpetrator was Caucasian, the women s descriptions and identifications were cross-racial. For one hundred years, researchers have been aware that individuals are less likely to remember, and later recognize, the face of someone who is of another race versus someone of their own race. 17 Researchers have consistently found that when asked to recall faces they have previously seen, people correctly identify more members of their own race and falsely identify more members of another race. 18 Labeled the cross-race effect, this phenomenon is a common cause of eyewitness error. 19 B. The Eyewitness Descriptions of the Perpetrator Were Contradictory. Again, because the shooter was a stranger to all of the witnesses at the church, they were only able to identify the man by providing investigators with a physical description. The description of the man was drastically different and contradictory from witness to witness, as detailed below: features of the visual scene, such as the face of the perpetrator National Research Council, Identifying the Culprit: Assessing Eyewitness Identification, p. 64 (2014). A 1992 scientific research study on weapon focus effect concluded that [t]he presence of a weapon does make a significant difference in eyewitness performance and, thus, [t]o not consider a weapon s effect on eyewitness performance is to ignore relevant information. Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus Effect, LAW AND HUMAN BEHAVIOR, vol. 16, no. 4, p. 420, 421 (1992). The study further indicated that an eyewitness s ability to correctly identify a perpetrator is decreased in situations in which a witness observes a threatening object play a central role in an event of short duration. Id. at C.A. Feingold, The Influence of Environment on Identification of Persons and Things, JOURNAL OF CRIMINAL LAW AND POLITICAL SCIENCE, Vol. 5 (1914). 18 See, e.g., Robert K. Bothwell, et al., Cross-Racial Identification, PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN, Vol. 15, No. 1, p. 20 (1989). 19 Recent analyses revealed that cross-racial (mis)identification was present in 42 percent of the cases in which an erroneous eyewitness identification was made. National Research Council, Identifying the Culprit: Assessing Eyewitness Identification, p. 66 (2014) (internal citation omitted); Brian H. Bornstein, et al., The Cross-Racial Effect: Resistance to Instructions, JOURNAL OF CRIMINOLOGY, Vol (2013). 14

15 Witness Descriptions of the Perpetrator 20 Witness Hair color Hair length Hair other Vandora Blonde Shoulder Straight, Baker Parted Cora Fisher Light/medium brown Brownish black Facial hair Clothing Dark jacket, dark pants Collar Curled Jean jacket, light green shirt, faded jeans Glasses Does not remember Blackrimmed thick glasses 21 Lettie Frazier Marjorie Moore Gwendolyn Owens Leslie Owens Vanzola Williams Yellowish or whitish Long Black Collar Straight Stringy Blonde Red Blonde Shoulder or collar Long Collar Shoulder Neat Parted in middle Straight Stringy Straight Light mustache Clean shaven Clean shaven Red mustache White t- shirt, dark clothes Dark clothing Gray collar shirt Dark long sleeve shirt, white t-shirt, dark pants, cowboy boots, jeans Does not think he had glasses Does not remember Blackrimmed glasses Black glasses Shady glasses 22 No glasses 20 All the of information contained in this chart was disclosed in interviews with law enforcement officers with the Camden County Sheriff s Office or the Georgia Bureau of Investigation. If a witness did not provide any information relevant to a specific category, the corresponding box in the chart is left blank. Further, as depicted in the chart, some of the witnesses descriptions changed over time. 21 Fisher did not state that the man had glasses in either of her two pre-trial interviews with investigators. She spoke about glasses for the first time at her trial deposition in 2001, sixteen years after the murders. 22 Williams never mentioned any glasses to investigators until a pre-trial hearing in

16 The witnesses contradictory descriptions vary significantly on key details, such as the color of the perpetrator s hair, which ranges anywhere from blonde to red, or even black. Additionally, Ms. Fisher, a key witness for the prosecution, gave several descriptions of the perpetrator that changed considerably over time. In Fisher s first statement to investigators, taken the day after the murders, she stated that the man had light medium brown hair. (Summary of Agent Sweat and Investigator Kennedy s Interview of Cora Fisher, attached hereto as Exhibit I, p. 1). In another statement to Investigator Kennedy, Ms. Fisher said the man had brownish and black hair that was also curled. (Transcript of Investigator Kennedy s Interview of Cora Fisher, attached hereto as Exhibit J, p. 1). Later at her deposition, 23 Ms. Fisher testified that the perpetrator had yellowish or whitish hair. (TII, p. 113). Given the fact that Mr. Perry s attorney did not cross-examine Ms. Fisher regarding these prior inconsistent descriptions, it is abundantly clear that the defense was not provided with this information before Ms. Fisher s trial deposition. Similarly, other interviews containing conflicting information about the perpetrator were not provided to the defense. Because the defense did not have access to Marjorie Moore and Leslie Owens interviews with police, it was not aware that Moore told investigators that the perpetrator had black hair and Owens said the man had red hair. (Transcript of Agent Sweat s Interview of Marjorie Moore, attached hereto as Exhibit K, p. 3 (note: Defendant s only copy of this interview is missing p. 6);; Transcript of Agent Sweat s Interview of Leslie Owens, attached hereto as Exhibit L, p. 1 (note: Defendant s only copy of this interview is missing p. 7)). Consequently, the jury only heard testimony that the perpetrator had blonde hair. In reality, of 23 Because Ms. Fisher was ill by the time of trial in 2003, she was deposed rather than providing live trial testimony. 16

17 the six witnesses able to describe the man s hair color, three described a color other than blonde at some time. Yet, the jury was never presented with this important, contradictory information. C. The Eyewitness Identifications of Dennis Perry Were Contaminated. Investigators interviewed seven eyewitnesses that were present at the church on the night of the murders. Of these seven women, only two, Ms. Williams and Ms. Fisher, eventually identified Dennis Perry as the perpetrator. However, these identifications were not made until 1998, thirteen years after the murders, and after Jane Beaver showed both witnesses a single photograph of Dennis Perry. Additionally, none of the eyewitnesses that testified at trial were asked to identify Mr. Perry as the shooter in the courtroom. About seven years after the murders, Jane Beaver showed Cora Fisher a photograph of Dennis Perry. (TIII, pp. 195, 196; TIV p. 14). Fisher thought that the man in the photograph, Perry, was the man who shot the Swains. (TII, p. 121). Dale Bundy began investigating the case in 1998 and learned about Beaver when he re-interviewed Ms. Fisher. Based on information from Ms. Fisher about where the man in the photograph lived, Bundy thought Fisher was describing Perry. (TIV, p. 13). Bundy then returned to Ms. Fisher s house, not with a photographic lineup, but with a single photograph, the mug shot of Dennis Perry. (Id. at 16). Ms. Fisher identified Perry as the man she had seen in Jane Beaver s photograph and at the church on the night of the murders in (Id.). This identification occurred under circumstances that were, at best, less than ideal, while Ms. Fisher was sitting on the floor of her home waiting for an ambulance after she had fallen down. (Id. at 15-16). Ms. Fisher s identification was made thirteen years after the crime, under stress after she had just fallen and was contaminated by Jane Beaver s introduction of a photograph of Perry. Furthermore, the 17

18 identification was irreparably skewed as Ms. Fisher was shown only a single photograph of Dennis Perry, rather than a photographic lineup. Vanzola Williams identification of Dennis Perry was also contaminated. Ms. Williams is the witness who got the best look at the shooter. She had a brief conversation with the man in the vestibule before going to tell Mr. Swain that someone was there to see him. However, when Ms. Williams was shown a photo array that included Dennis Perry s picture shortly after the murders, she did not identify him as the shooter. (Id. at 294). In fact, approximately four months after the murders, Ms. Williams attended a live lineup and identified an alternate suspect, Donnie Barrentine, as the perpetrator. (TIII, p ). Several years after the murders, just as she had done to Ms. Fisher, Jane Beaver showed Williams a photograph of Dennis Perry. (TII, p ). Williams testified that she told Jane Beaver at the time that the photograph looked just like the man in the church the night of the murders. (Id. at 65). Following this incident, thirteen years after she failed to identify Dennis Perry in a photographic lineup, Investigator Bundy went to Williams house with one photograph of Dennis Perry. (TIV, p. 17). Williams then identified Perry as the man who shot the Swains. (Id.). Ms. Williams identification of Dennis Perry is tainted. Williams failed to identify Perry shortly after the crime, identified an alternate suspect and then thirteen years later (after being shown a photograph of Dennis Perry) identified Perry as the shooter after looking at his mug shot. Williams identification of Perry was contaminated and, therefore, is unreliable. No one identified Dennis Perry as the shooter until thirteen years had gone by and after Jane Beaver suggested his involvement in the crime by showing them a single photograph of Dennis Perry. Furthermore, Investigator Bundy failed to use the standard procedure of showing a witness a photographic lineup and, instead, chose to present the witnesses with one mug shot. 18

19 It is no surprise that the two witnesses made an identification under these questionable and highly suggestive circumstances. The Swain murders went unsolved for fifteen years, because the identity of the perpetrator was unknown to the witnesses and to law enforcement. Furthermore, the prosecution s case against Mr. Perry is based entirely on eyewitness testimony from individuals present at the crime scene and law enforcement officers that reported Mr. Perry s unrecorded incriminating statements. There is absolutely no physical evidence that connects Mr. Perry to the Swain murders. The validity of the witnesses identifications and, therefore, the identity of the perpetrator, was a significant issue in the case. 5. It Is Reasonably Probable that Defendant Would Have Been Acquitted Had DNA Testing Been Performed at the Time of His Trial For the purpose of an extraordinary motion for post-conviction DNA testing filed under O.C.G.A , the Court should assume that the requested DNA testing will yield a profile that belongs to someone other than the convicted defendant. See, Battles v. State, 290 Ga. 226 (2011); Crawford v. State, 278 Ga. 95 (2004); Palmer v. State, 286 Ga. App. 751 (2007). Assuming the particular pieces of physical evidence in question yield the DNA profile of an individual other than the defendant, the question then becomes whether, based on that DNA evidence, there is a reasonable probability that the verdict would have been different at trial. O.C.G.A (c)(4)(D). In this case, although much of the evidence was lost before Perry s trial, there are few pieces of physical evidence that were introduced at trial that still exist today, namely, the dark blue shirt buttons, three pieces of telephone wire, and five shell casings. All of these items were owned or handled by the perpetrator and the perpetrator s DNA may be found on each item. 19

20 The dark blue shirt buttons found at the scene were strewn from one end of the vestibule to the other. The buttons did not come from the clothing of either Mr. or Mrs. Swain. It is likely that the buttons were torn off during the perpetrator s struggle with Mr. Swain, which was heard by the witnesses. If the buttons contained a DNA profile that did not match Perry, the logical conclusion would be that Perry was not the man wearing the shirt and, therefore, is not the man that struggled with Mr. Swain or committed the murders. If this information had been available at trial, it is reasonably probable that Perry would have been acquitted. Additionally, five shell casings and three pieces of telephone wire were collected from the scene. The shell casings came from the perpetrator s gun and were probably handled and loaded by the perpetrator himself. The perpetrator also handled the telephone wires when he cut them before entering the church that evening. Again, if these items, which were all handled by the perpetrator, yielded a DNA profile that did not match Perry, it would indicate that someone other than Perry was the perpetrator, therefore increasing the reasonable probability of a different verdict even further. 6. Evidence to be Tested There is biological evidence available in this case which can be tested for DNA. The evidence consists of five dark blue shirt buttons, three pieces of telephone wire and five shell casings. The evidence is approximately thirty (30) years old and has been in the possession of the Glynn County Superior Court Clerk since Mr. Perry s conviction in The evidence appears to be in suitable condition for testing. The shirt buttons, telephone wires, and shell casings may yield skin cells which would permit the Short Tandem Repeat (STR) analysis that Mr. Perry seeks. STR DNA typing can be routinely achieved from typical forensic specimens, including degraded and low-quantity DNA samples. 20

21 7. Previous DNA or Biological Evidence Testing The shirt buttons, telephone wires and shell casings have never been subject to any forensic testing. The only piece of evidence that has already been tested in this case, hair taken from a pair of glasses found at the scene, completely excludes Dennis Perry as the donor. However, these DNA test results were never introduced at trial. 24 Investigators found three pairs of glasses at the crime scene. (TII, p ). After consulting local optometrists, investigators determined that one pair of glasses found at the crime scene did not belong to the Swains. The prescription on that pair of glasses was consistent with a person who is extremely far-sighted and has a stigmatism in the right eye. (Summary of Interview with Dr. Frederick W. Tillman, attached hereto as Exhibit M, p. 1-2). An eye exam revealed that Perry had 20/20 vision in each eye and would not have worn the glasses found at the crime scene. (Letter from Dr. Anthony L. Stubits to Edward W. Clary, attached hereto as Exhibit N, p. 1). Although the eyeglasses themselves would be a good source for DNA collection, unfortunately, these glasses are among the items of evidence that were lost before Mr. Perry s trial and are no longer in existence. In addition to the glasses themselves, there were several Caucasian hairs stuck in the tape that was wrapped around the earpiece of the glasses. In preparation for trial, mitochondrial DNA (mtdna) testing was performed on the hair. The mtdna testing excluded Perry as the donor of those hairs. (Letter from Mitotyping Technologies, LLC to John B. Johnson, III and Dale G. Westling, Sr., September 21, 2001, attached hereto as Exhibit O, p. 3). Additional testing 24 Perry s lawyer did explain in his opening statement that the hairs were tested for DNA and did not match Perry, however, no witnesses were called to present this information and the DNA results were never mentioned again during the trial. 21

22 excluded other individuals as matches, including Jeffrey L. Kittrell, Donnie Barrentine, David Roberson, and John W. Edwards. 8. Names and Addresses of All Entities Who Have Possession of Evidence The dark blue shirt buttons, telephone wires and shell casings are currently in the possession of the Glynn County Superior Court Clerk, located at 701 H Street, Suite 201, Brunswick, Georgia Names and Addresses of All Persons Testifying Glynn County Superior Court Clerk Evidence Custodian, 701 H Street, Suite 201, Brunswick, Georgia Georgia Bureau of Investigation Forensic Biology Division, 3121 Panthersville Road, Decatur, GA GA Georgia Bureau of Investigation Records Custodian, 3121 Panthersville Road, Decatur, Camden County Sheriff s Office Records Custodian, 209 E. 4th Street, Woodbine, GA 10. Not Filed for the Purpose of Delay There are no procedures pending in this case, therefore, the Motion was not filed for the purpose of delay. 11. Issue Has Not Been Raised Previously The issue of DNA testing has not been raised previously in any court. 22

23 12. Samples Because the evidence described above is finite, Defendant requests this Court order the laboratory to preserve a suitable sample of the evidence for possible testing by more advanced techniques in the future. WHEREFORE, Defendant prays that this Court grant his Extraordinary Motion for Post- Conviction DNA Testing for the reasons set forth above. This day of, Respectfully submitted, Aimee Maxwell Georgia Bar No Georgia Innocence Project 2645 North Decatur Road Decatur, GA (404) Attorneys for Defendant Christina Cribbs Georgia Bar No

24 CERTIFICATE OF SERVICE This is to certify that have this day served a copy of the within DEFENDANT S EXTRODINARY MOTION FOR POST-CONVICTION DNA TESTING upon the following counsel by placing a true and exact copy of the same in the United States Mail with adequate postage affixed thereto to ensure delivery, addressed as follows: Jackie Johnson District Attorney, Brunswick Judicial Circuit Camden County District Attorney s Office 210 E 4 th Street Woodbine, Georgia Sam Olens, Attorney General Office of the Attorney General 40 Capitol Square, SW Atlanta, Georgia This day of, Christina Cribbs Georgia Bar No Georgia Innocence Project 2645 North Decatur Road Decatur, GA (404) Attorney for Defendant 24

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