HINES, Justice.
Donavon Shane Leger ("Leger") appeals his convictions for malice murder and aggravated battery in connection with the death of his estranged wife, Tracy Leger ("Tracy").
The next morning, Bumbalough helped Tracy's son get ready for school and get on the school bus. Bumbalough then saw Tracy's vehicle behind the house; he discovered her body lying near the vehicle. There were 183 knife wounds on her body, including a number of defensive wounds and wounds that had been inflicted after death. Tracy died of a cut to her jugular vein.
During their relationship, Leger had often been abusive toward Tracy; he choked, punched, and kicked her, had thrown her on a bed, and pushed her across a room. He was possessive and jealous, and unhappy that Tracy began a romantic relationship with Brooks after she separated from him. He threatened to kill her; she was scared of him, and Bumbalough moved into her house due to that fear.
1. The evidence authorized the jury to find Leger guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Leger opted to invoke the reciprocal rules of discovery under OCGA § 17-16-1 et seq. He contends that in three instances the State violated the requirements of the reciprocal discovery rules and that this should have resulted in the exclusion of the evidence at issue.
In urging that the only appropriate remedy in each instance was the exclusion of the evidence, Leger particularly relies upon OCGA § 17-16-6, which reads:
However,
Jones v. State, 290 Ga. 576, 577-578(2), 722 S.E.2d 853 (2012) (Citation and punctuation omitted). Exclusion of evidence "is a particularly harsh sanction and should be imposed only where there is a showing of prejudice to the defense and bad faith by the State." Higuera-Hernandez v. State, 289 Ga. 553, 557-558(3), 714 S.E.2d 236 (2011) (Citation and punctuation omitted).
Leger did not seek a continuance or request any other remedy authorized by OCGA § 17-16-6, except the complete exclusion of the DNA evidence. Further, he does not articulate what prejudice he suffered that would have been cured by his having been provided with the report five days earlier, as contemplated in OCGA § 17-16-4(a)(4). In any event, "the severe sanction of exclusion of evidence applies only where there has been a showing of bad faith by the State and prejudice to the defense. [Cits.]" Cockrell v. State, 281 Ga. 536, 539(3), 640 S.E.2d 262 (2007) (Emphasis in the original). At trial, the court specifically stated that the State could not have provided the defense with the report sooner than it did, and Leger did not show, either at trial or by his motion for new trial, that this was incorrect. Under these circumstances, there was no abuse of the court's discretion allowing the DNA evidence to be admitted into evidence.
(b) In timely discovery, the State advised the defense that a witness from Leger's cell phone provider would testify regarding cell phone data; however, the witness who testified at trial was not named until the time of trial, nor were the demonstrative exhibits which that witness used in his testimony revealed until that time. Discovery materials timely provided to Leger's attorney before trial showed times of use and locations of cell phone towers utilized by Leger's telephone calls prior to and after the killing; the evidence prepared by the witness from that information, which was not made available until trial, used triangulation methods to place Leger near the scene of the crimes with more specific accuracy.
Again, the only remedy Leger pursued at trial was exclusion of the evidence. "It is usually a sufficient remedy for the defense to be afforded an opportunity to interview the witness." Norris v. State, 289 Ga. 154, 156(2), 709 S.E.2d 792 (2011). As Leger had been provided the data from which the demonstrative exhibits were created, and was afforded time to interview the witness, it does not appear that the trial court abused its discretion in denying the request to exclude the witness from testifying and the admission of the evidence. Id.
(c) In addition to the cell phone witness, six other witnesses were not identified on the witness list provided to Leger ten days before trial. However, each of them was identified elsewhere in discovery materials which were timely provided to Leger. This Court has held that
Id. at 155, 709 S.E.2d 792. Again, Leger sought no remedy other than the witnesses being prevented from testifying, and no error is shown.
3. Leger contends that the trial court should have excluded the testimony of four witnesses regarding prior difficulties between Leger and Tracy, contending that their testimony was inadmissible hearsay.
Wright v. State, 285 Ga. 57, 59-60(3), 673 S.E.2d 249 (2009) (Citations and punctuation omitted).
At a motion in limine hearing, Leger raised the issue of hearsay in regard to witnesses who would testify about prior difficulties between Leger and Tracy, and the court stated that when questioning of the witnesses reached that point, Leger could raise his objection about "hearsay and the reliability," and that he would be given an opportunity to voir dire the witnesses. See Jeffers v. State, 290 Ga. 311, 315(4)(c), 721 S.E.2d 86 (2012). As to each of the four witnesses, Leger raised an objection, stating that the questioning called for hearsay, and argues in this Court that particularized guarantees of trustworthiness were not shown.
(a) Bumbalough testified that in April 2004, Tracy told him that, at the wedding of Leger's sister, Leger had beaten Tracy severely, and that their marriage was over; Tracy related this while in the hospital for treatment of the injuries she received in that beating. At trial, Leger argued that the statement was not admissible under the necessity exception to hearsay testimony in that the statement was unreliable, because at the time she related the incident to Bumbalough, Tracy had been arrested for driving while under the influence of alcohol and was presumably intoxicated. He now contends that the statement should have been excluded because there was no showing of a close enough relationship between the brother and sister to exhibit particularized guarantees of trustworthiness. See McNaughton v. State, 290 Ga. 894, 898(3)(a), 725 S.E.2d 590 (2012). However, the evidence was that Tracy turned to Bumbalough for help with her problems, particularly those in regard to Leger, even asking him to move in with her after the beating, and there was no error in admitting the statement into evidence. Id. See also Evans v. State, 288 Ga. 571, 572-573(2), 707 S.E.2d 353 (2011); Azizi v. State, 270 Ga. 709, 711(2)(a), 512 S.E.2d 622 (1999).
(b) Tracy was hired at her place of employment by Brooks, two years before her death. Brooks testified that for most of that time, although he was her boss, he and Tracy were friends; they became physically intimate about three months before Tracy was killed. During the period when the relationship was that of friends, before any physical intimacy took place, Brooks overheard numerous telephone conversations between Tracy and Leger in which Leger could be heard screaming in the background, and Tracy attempted to avoid telephone calls from Leger, including asking that calls from him that came on the business telephone not be relayed to her. Tracy told Brooks that she would be attending a wedding the next weekend; at work the following Monday, Tracy was badly bruised on the face, arms, and legs such that her appearance precluded her being able to be sent out to meet with business clients.
Noting that Tracy and Brooks were engaged in a meretricious relationship while Tracy and Leger were still married, Leger contends that Brooks's evidence should have been excluded because "[a] `married person's complaints about that person's spouse, made to one with whom the married person is conducting an adulterous affair, are subject to the possibility of exaggeration if not outright falsehood.' [Cit.]" Azizi, supra at 712(2)(b), 512 S.E.2d 622. However, this ignores the fact that much of what Brooks testified to under the necessity exception occurred when he and Tracy were merely friends, before the physically intimate relationship began. Id. at (2)(a). Also, generally, the statements to which Brooks testified were part of spontaneous exchanges between Tracy and Brooks, Tracy had no reason to lie to him about them, and her statements about the altercations were corroborated by her visible injuries. See McNaughton, supra at 899, 725 S.E.2d 590. We find no abuse of discretion in admitting this testimony.
(c) Leger also objected to testimony of Tracy's supervisor, Butler, who testified that Tracy stated that Leger was physically abusive, that Butler saw signs of abuse on her person, and that after an altercation with Leger at a wedding, Tracy was upset and stated that she wanted to get away from Leger. Butler also related that on another occasion, Butler asked Tracy why she did not leave Leger, and she said: "I feel if I leave, he'll kill me." Butler testified that he knew Tracy for a year-and-a-half, their relationship was good, she confided in him about important things in her life such as her relationship with Leger, and that her statements about Leger and their relationship were consistent over time. There was no error in admitting Butler's testimony. Evans, supra. See also McNaughton, supra.
(d) Another supervisor of Tracy's, Force, testified that Tracy told him that Leger was abusive, that she asked him to have telephone calls from Leger blocked on the business telephone, and that she hoped to end the marriage. We agree with Leger that the evidence regarding Force's relationship with Tracy, which was only that of supervisor and employee, was insufficient to establish the particularized guarantees of trustworthiness so as to permit the admission of this testimony under the necessity exception to the hearsay rule. Brooks v. State, 281 Ga. 514, 517-518(4), 640 S.E.2d 280 (2007). However, the evidence at issue was cumulative of evidence properly admitted, and the erroneous admission of this evidence was harmless. Id. See also McNaughton, supra at 900, 725 S.E.2d 590.
4. Leger complains that, over objection, the State was allowed to introduce certain irrelevant evidence that impermissibly placed his character into issue. He first cites the introduction of a book titled "FUGITIVE: How to Run, Hide, and Survive"; when a search warrant of Leger's home was executed the day after Tracy was killed, the book was found open, face down on a table. But there was no error in admitting it, or the photographs of it on the table. Evidence of flight is relevant to the question of guilt, see Evans, supra at 574-575(5), 707 S.E.2d 353, and evidence of a suspect's plan to flee is germane to that question. See Semple v. State, 271 Ga. 416, 417(1), 519 S.E.2d 912 (1999). The fact that the evidence of contemplated flight was in a medium that was published and generally available to the public did not render it irrelevant to Leger's state of mind and plan to flee. See Beasley v. State, 269 Ga. 620, 622(2), 502 S.E.2d 235 (1998).
Evidence regarding a tattoo is not inadmissible per se. See Carruthers v. State, 272 Ga. 306, 315(10), 528 S.E.2d 217 (2000) (Evidence of tattoo admitted for identification purposes), overruled on other grounds, Vergara v. State, 283 Ga. 175, 177(1), 657 S.E.2d 863 (2008); Allen v. State, 272 Ga. 513, 515(4), 530 S.E.2d 186 (2000) (Evidence of tattoo properly admitted as evidence of motive). Rather, "[a]ny statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it." Bridges v. State, 246 Ga. 323, 324(2), 271 S.E.2d 471 (1980) (Citations and punctuation omitted; emphasis removed). Compare Belmar v. State, 279 Ga. 795, 798-799(3), 621 S.E.2d 441 (2005), in which a tattoo reading "12 gauge" was improperly introduced to support a theory that the defendant had a "propensity" to use a 12-gauge shotgun. The tattoo at issue was properly admitted as evidence of consciousness of guilt.
5. Craig testified regarding the DNA evidence linking Leger to the cap found near Tracy's body. Leger argues that, because Craig did not physically perform all of the steps in the testing of the DNA sample and cap, her testimony violated his right to confront the witnesses against him under the Sixth Amendment to the Constitution of the United States. However, his argument is unavailing.
Regarding her functions at the laboratory, Craig testified that:
As to this particular test, she selected the specific stains which were to undergo further DNA testing. She was then presented with the data from the testing, interpreted the data, and wrote the report. She did not "cut the samples and put them in the tubes and add the chemicals." She testified about the laboratory's reliability procedures and noted that another examiner reviewed her interpretations; no certified DNA report was actually admitted into evidence.
This Court has previously held that a supervisor of such testing can testify without offending the confrontation clause. Disharoon v. State, 291 Ga. 45, 727 S.E.2d 465 (2012). As we noted in that case, the courts of this State have "consistently held that the Confrontation Clause does not require the analyst who actually completed the forensic testing used against a defendant to testify at trial. [Cit.]" Id. at 46, 727 S.E.2d 465. And, we also noted that the United States Supreme Court had then recently rejected the practice of "surrogate testimony," and held that the admission of testimony of a "scientist who did not sign the certification or perform or observe the test" would be a violation of the Confrontation Clause. Id. at 47, 727 S.E.2d 465, citing Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011).
The witness testimony approved in Disharoon is similar to that of Craig in terms of her connection to the DNA testing performed here; Craig was the supervisor of the testing, had significant personal connection to the test (having selected the stains to be analyzed), interpreted the data, performed the statistical analysis, and prepared the test report. The errors present in Bullcoming did not occur in this case, and Craig's testimony did not run afoul of that precedent.
Judgments affirmed.
All the Justices concur.