Baptiste v. the State.

Decision Date28 February 2011
Docket NumberNo. S10A2004.,S10A2004.
Citation288 Ga. 653,706 S.E.2d 442
PartiesBAPTISTEv.The STATE.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Joseph S. Key, McDonough, for appellant.David McDade, District Attorney, James A. Dooley, Assistant District Attorney, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sara K. Sahni, Assistant Attorney General, for appellee.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 On appeal, Baptiste questions the denial of his motion to suppress evidence gathered from his pickup truck and from a wiretap on his telephone; the admission of a hearsay statement; and the inclusion in the jury charge of an instruction on party to a crime.

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 victims were found. Employees at the shop where the bedliner was replaced testified the old bedliner had an odor as if an animal had died and that they had scrubbed away a softball-sized stain on the truck's body underneath the bedliner. Blood found on wire covers near the tailgate of appellant's truck matched the DNA profile of Herrera. A pawn broker testified that, a month before the two men were killed, he had sold two Davis derringers to a man identified in the pawn broker's paperwork as appellant. A convicted felon testified that until his arrest in September 2002, he had purchased cocaine measured in kilograms several times from victim Herrera at appellant's house, and another convicted felon awaiting sentencing testified he had purchased kilograms of cocaine from appellant. Cocaine kilogram wrappers were found in a search of appellant's home. In an interview with police, appellant stated that he had been told that Herrera had stolen five kilograms of cocaine.

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.2 Attached to the photocopied search warrant for appellant's residence was a document identified by the Douglas County investigator as his unsigned affidavit that did not contain a completed jurat. The investigator testified that the original search warrants issued by the Clayton County judge and the officer's original signed and sworn affidavits were retained and sealed by the issuing judge who had been unsuccessful in locating the sealed packet. The investigator described the unsigned, unsworn document presented at the suppression hearing as containing information identical to that contained in the affidavit he had executed before the issuing judge in order to obtain the warrant for appellant's truck and, with the deletion of the last 6 1/4 lines, was identical to the affidavit he had executed before the issuing judge to obtain the warrant for appellant's residence. The officer testified that, while in the presence of the assistant district attorney and a Douglas County detective, he had retrieved the unsigned, unsworn document from the hard drive of the sheriff's department computer on which he had created and stored the affidavit he had sworn and subscribed before the judge who issued the search warrant for the truck. Guided by Federal Rule of Evidence 1001–that any printout of data stored on a computer and shown to reflect the data accurately is deemed an original document—and Georgia law allowing admission of a duplicate original as primary evidence without accounting for the original, the trial court denied the motion to suppress.

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

makes the best evidence rule inapplicable whenever the absence of the original writing is “satisfactorily accounted for.” OCGA § 24–5–21 provides that [i]f a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence. The question of diligence is one for the sound discretion of the court.” This rule applies both to secondary documentary evidence and to parol testimony.

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...

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10 cases
  • C.B.D. v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 4, 2011
    ...contents of a lost affidavit may be in the form of testimony from the officer who drafted the affidavit. See, e.g., Baptiste v. State, 288 Ga. 653, 706 S.E.2d 442 (2011) (testimony of officer that unsigned copy of affidavit was identical to affidavit submitted in support of search warrant b......
  • C.B.D. v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 10, 2012
    ...contents of a lost affidavit may be in the form of testimony from the officer who drafted the affidavit. See, e.g., Baptiste v. State, 288 Ga. 653, 706 S.E.2d 442 (2011) (testimony of officer that unsigned copy of affidavit was identical to affidavit submitted in support of search warrant b......
  • Coley v. State
    • United States
    • Georgia Supreme Court
    • April 15, 2019
    ...trial supporting the theory of party to a crime, then the trial court is authorized to instruct the jury on it. Baptiste v. State , 288 Ga. 653, 658-659, 706 S.E.2d 442 (2011).Here, sufficient evidence supported the trial court's instruction on party to a crime. The evidence showed that Col......
  • Boothe v. State
    • United States
    • Georgia Supreme Court
    • July 1, 2013
    ...e.g., Norris v. State, 289 Ga. 154, 158, 709 S.E.2d 792 (2011) (applying the best evidence rule to a letter); Baptiste v. State, 288 Ga. 653, 655–656, 706 S.E.2d 442 (2011) (applying the rule to search warrants and affidavits). See also Merrill Lynch, 248 Ga. at 581, 285 S.E.2d 181 (explain......
  • Request a trial to view additional results
2 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...and he compared the exhibits’ use of the same check number at two places on the checks with defendant’s checks. Baptiste v. State , 706 S.E.2d 442, 444-45 (Ga. 2011). Secondary evidence, consisting of testimony of investigator as to contents of missing search warrant affidavits for defendan......
  • Evidence - John E. Hall, Jr. and W. Scott Henwood
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 63-1, September 2011
    • Invalid date
    ...with our conclusion here. See House Bill 24, Ga. L. 2011, p. 3, § 2. Id. 11. See Milich, supra note 4. 12. See, e.g., Baptiste v. State, 288 Ga. 653, 656, 706 S.E.2d 442, 445 (2011). of the rule codified in section 24-5-4 of the Official Code of Georgia Annotated (O.C.G.A.),13 reads: (a) Th......

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