BENHAM, Justice.
Appellant Gerard George Baptiste was convicted in 2003 of the felony murder of Marcos Herrera, whose body was found alongside the body of Jose Perez Garcia in a Douglas County field on November 17, 2002.
1. The medical examiner testified that Herrera died as a result of a gunshot fired into his head behind the left ear and an "immediately debilitating" gunshot wound to the back. The GBI firearms examiner testified that the bullets recovered from the heads of the two shooting victims were likely fired from a Davis derringer. Near the victims were tire tracks and a sales receipt from a store in Perry, Georgia, memorializing a transaction that had taken place about eleven hours before the bodies were discovered in Douglas County. Videotape of the store's parking lot showed the two victims exiting a red, extended-cab Chevrolet pickup truck with an unidentified black male who was wearing a striped toboggan hat, and the trio exiting the store and entering the pickup truck. Close in time to the store transactions, the girlfriend of victim Herrera received a telephone call from Herrera that was made from a cellular phone registered to appellant. Appellant was found to be the owner of a red, extended-cab Chevrolet pickup truck who, while wearing a striped toboggan hat, had visited businesses two days after the bodies were found in order to replace the truckbed liner and the truck's tires. The tire tracks found near the bodies matched tire tracks made by the tires on appellant's truck, and the seller of the new tires on the truck testified the new tires were the same tire brand and model as were the tires removed from the truck two days after
The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the felony murder of Herrera. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends the trial court erred when it denied his motion to suppress evidence obtained from searches of his home and his truck, and his motion to suppress intercepted communications made to and from telephone numbers assigned to appellant and his wife. Appellant asserts the State did not prove by competent evidence that the searches were conducted pursuant to valid search warrants which were issued based on a showing of probable cause.
The truck and the residence. Appellant focuses on the fact that the State did not produce at the suppression hearing the affidavits signed and sworn to by the investigator that he submitted to the Clayton County judge with his applications for search warrants for appellant's residence and truck. It is undisputed that the photocopies of each of the search warrants issued by the Clayton County judge contain the issuing judge's acknowledgment that the investigator made an affidavit before the issuing judge and that the affidavit was given under oath. Thus, there is no question that search warrants were issued based on affidavits signed and sworn to by the investigator before the issuing judge. See Gray v. State, 926 So.2d 961, 975 (Miss.App.2006) (record supports a finding that an affidavit was executed where original affidavit was lost, a copy was produced, the affiant testified he presented an affidavit to the judge who issued the search warrant, and the issuing court's order indicated an affidavit had been presented and used in determining that probable cause existed for the search). It is only the content of the affidavits submitted to the issuing judge that is at issue.
At the suppression hearing, the State presented photocopies of the Clayton County warrants issued and executed for appellant's residence and for the seizure of his pickup truck.
Georgia has not adopted a rule of evidence similar to the federal rule governing the admission of a computer printout, and the unsigned, unsworn document presented at the suppression hearing does not qualify as a "duplicate original" under Georgia law since it was not made by the same pen stroke at the same time (Martin & Lanier Paint Co. v. Daniels, 27 Ga.App. 302(4), 108 S.E. 246 (1921)), or was not a copy executed at the same time as the "original" of the document. See Raulerson v. Jones, 122 Ga.App. 440(1), 177 S.E.2d 181 (1970). Nonetheless, the trial court did not err when it denied the motion to suppress.
"The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." OCGA § 24-5-4(a). The statute
McGee v. State, 260 Ga. 178(3)(b), 391 S.E.2d 400 (1990). In light of the officer's testimony concerning the loss of the sealed packet containing the original search warrants and affidavits, the trial court did not abuse its discretion when it admitted secondary evidence, i.e., the testimony of the investigator as to the contents of the missing affidavits. Summerour v. State, 211 Ga.App. 65(1), 438 S.E.2d 176 (1993) (admission of secondary parol evidence concerning the contents of a missing document was not an abuse of discretion). See State v. C.B.D., ___ So.3d ___, 2009 WL 3255173 (Ala.Crim.App.2009) (secondary evidence admissible to show the existence and contents of affidavit and search warrant once it has been established to the reasonable satisfaction of the trial judge that the documents were lost absent bad faith on the part of the proponent). See also State v. Reese, 991 A.2d 806 (Me.2010) (search warrant is not invalidated due to lost affidavit when the existence and contents of the pertinent language of the affidavit can be proved in a manner sufficient to permit meaningful review, i.e., that there is proof that the issuing judge reviewed the affidavit and the request for the warrant simultaneously and proof that there were grounds for a finding of probable cause); People v. Galland, 45 Cal.4th 354, 86 Cal.Rptr.3d 841, 197 P.3d 736, 746-747 (Cal.2008) (the absence of an affidavit to support an executed search warrant does not invalidate the warrant when other evidence may be presented to establish that an affidavit was presented and the contents of that affidavit).
The telephone calls. With regard to the investigative warrants issued to intercept telephone calls made to and received by four telephone numbers assigned to appellant and his wife, appellant erroneously contends that the original search warrant and affidavit were not produced at the suppression hearing. The transcript of the hearing establishes clearly that the originals were unsealed during the suppression hearing and were identified by the investigator who executed the affidavit and who received the investigative warrant from the issuing judge.
3. Appellant next takes issue with the admission of hearsay testimony elicited by the assistant district attorney in his re-direct examination of a special agent of the United States Drug Enforcement Administration, concerning the agent's knowledge of statements made by a non-testifying confidential informant to state law-enforcement personnel investigating the homicides of the victims. The agent testified that the informant
4. Lastly, appellant contends the trial court erred when it granted the State's request to instruct the jury on the law of party to a crime. In the charge conference, defense counsel objected to an instruction on party to a crime on the ground that there were no co-defendants, indicted or unnamed, and no separate act committed by a co-defendant. After the jury instruction was given, defense counsel reserved its objections to the charge. On appeal, appellant contends it was improper to give the jury instruction because it was not supported by the evidence since the State did not present evidence that appellant acted in concert with any other person(s) to assist or facilitate the commission of the crimes.
The State asserts the claim of error has not been preserved for appeal because appellant asserts before this Court a different rationale concerning the jury charge than appellant asserted before the trial court during the charge conference. At the time of appellant's 2005 trial, the statutory requirement that a party object prior to the jury's return of its verdict to the giving or the failure to give a jury instruction and to state the grounds of objection was not applicable to criminal cases. OCGA § 5-5-24(a).
A trial court is authorized to give a requested jury instruction if there was produced at trial slight evidence supporting the theory of the jury charge. Hicks v. State, 287 Ga. 260(2), 695 S.E.2d 195 (2010). In addition to the evidence summarized in Division One, supra, linking appellant to the commission of the crimes for which he was convicted, there was evidence from the expert firearms examiner concerning the amount of time it would take for one person to shoot and re-load the two-shot derringer believed to be the murder weapon in order to fire six shots into the two victims; there was evidence that a confidential informant had told authorities that two shooters killed the victims; and appellant testified that a drug dealer named Vincent knew about the drug transaction between appellant and victim Herrera, that appellant had loaned his truck to Vincent and had sold his Davis derringers to Vincent prior to the murder of the victims. The trial court did not err in giving a charge on party to a crime since the charge given
Judgment affirmed.
All the Justices concur.