Johnson v. State, A98A0292

• Decision Date: 11 March 1998
• Docket Number: No. A98A0292,A98A0292
• Citation: 231 Ga.App. 114,497 S.E.2d 666
• Parties: , 98 FCDR 1234 JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 666

497 S.E.2d 666

231 Ga.App. 114, 98 FCDR 1234

JOHNSON v. The STATE.

No. A98A0292.

Court of Appeals of Georgia.

March 11, 1998.

Paul J. McCord, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Robert M. Coker, Assistant District Attorneys, for appellee.

ELDRIDGE, Judge.

Appellant-defendant Davis Johnson challenges his conviction for violating the Georgia Controlled Substances Act ("GCSA"), OCGA § 16-13-20 et seq. We affirm.

On August 8, 1996, Officers J.D. Huckabey and D.L. Baker were operating in an undercover capacity in the Lynwood Park area of DeKalb County. Earlier in the day, Officer Huckabey had taken $100 (five $20 bills) from the DeKalb County Buy Fund; pursuant to her regular practice, she photocopied each bill for identification purposes.

While driving in Lynwood Park, the officers were flagged down by Elkin Clarke, appellant's co-defendant, who approached the unmarked police vehicle and leaned in the open window. He asked Officer Huckabey if she was "looking for a 20," referring to a $20 piece of crack cocaine. When Officer Huckabey responded affirmatively, Clarke walked over to the defendant, who was standing by himself approximately five feet away. Officer Huckabey observed the defendant hand Clarke some crack cocaine. Clarke immediately walked back to the unmarked police vehicle and gave Huckabey at least one piece of crack cocaine, which later field tested positive for cocaine. Officer Huckabey handed Clarke one of the $20 bills and observed as Clarke walked over and gave it to the defendant. Officer Huckabey then drove away and immediately signaled uniformed officers in the area that a sale had been conducted. The uniformed officers arrived at the scene approximately one minute later and apprehended Clarke and the defendant. The defendant had the $20 bill from the buy fund clenched in his fist; the defendant also possessed approximately $900 in cash. Both individuals were arrested and charged with possession of cocaine with the intent to distribute. Within hours following the arrest, Officers Huckabey and Baker identified the defendant from jail photos to ensure that the other officers had arrested the correct suspects. Officer Huckabey also testified that, as she transported the defendant to the DeKalb County Jail, the defendant told her that "when he gets out that I need to watch myself ... because we were going to get it when he got out."

The defendant was tried February 18-21, 1997; Clarke was tried separately. Prior to trial, the defendant filed a motion in limine to exclude from evidence a photostatic copy of the $20 bill from the buy fund, asserting that it violated the best evidence rule, OCGA § 24-5-1; the motion was denied. The defendant also asserted a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as to the State's peremptory strikes; the trial court ruled that the defendant failed to establish that the State had a discriminatory intent in executing the strikes. The defendant was convicted of violating the GCSA and was sentenced to forty years, ten to serve. His motion for a new trial was denied, and he appeals. Held:

1. In his first enumeration of error, the defendant asserts that the trial court erred in admitting into evidence a photocopy of the "buy money," as opposed to the actual $20 bill, claiming that it violated the best evidence rule, OCGA § 24-5-4(a). However, the best evidence rule applies only to writings where the terms are material and the contents of the writing are in issue, as in a dispute regarding the contents of a contract, deed, will, search warrant, or prior conviction. See Bishop v. Kenny, 266 Ga. 231, 466 S.E.2d 581 (1996) (rule applies to wills); Jefferson Pilot, etc., Co. v. Prickett, 176 Ga.App. 810, 338 S.E.2d 19 (1985); State v. Mincey, 167 Ga.App. 850, 308 S.E.2d 18 (1983). See also Perkins v. State, 260 Ga. 292, 392 S.E.2d 872 (1990); Springer v. State, 238 Ga. 81, 230 S.E.2d 883 (1976); Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) (best evidence rule has nothing to do with evidence generally); King v. State, 209 Ga.App. 529, 433 S.E.2d 722 (1993); Shivers v. State, 188 Ga.App. 744, 374 S.E.2d 233 (1988); McCoy v. State, 185 Ga.App. 221, 363 S.E.2d 628 (1987).

Currency is not a "writing" under the best evidence rule. Further, there was no dispute in this case regarding the bill's contents, such as an assertion that the bill had been altered. See generally Springer v. State, supra at 82, 230 S.E.2d 883. In fact, the defendant did not assert at trial that the photocopy was not an exact replica of the $20 bill from the buy fund or that the bill recovered from his possession was not the same $20 bill, and did not cross-examine the State's witnesses concerning these issues, but asserted only that the original bill should have been admitted as evidence instead of the photocopy.

However, Officer Huckabey testified that she had made a photocopy of the $20 bill used in the drug buy in order to assist her in tracking the bill after the transaction. Therefore, the photocopy was primary evidence supporting the officer's testimony. See Jacobs v. State, 207 Ga.App. 714, 429 S.E.2d 256 (1993). The fact that the officer did not also submit as evidence the original $20 bill found in the defendant's possession affects only the weight of her testimony, not the admissibility of the photocopy. Accordingly, the photocopy of the bill was admissible into evidence.

Further, even if the original currency was a "writing" subject to the best evidence rule, the photocopy was admissible under either OCGA § 24-5-4(a) or § 24-5-26. OCGA § 24-5-4(a) allows a photocopy of the writing if the "absence [of the original is] satisfactorily accounted for." In this case, the State asserted that the original $20 bill was unavailable because it had been recirculated through the buy fund for subsequent drug sting operations. Unless the county was able to reuse the currency, each bill that became evidence in an illegal drug buy would have had to be locked up in the evidence room for months, so that DeKalb County would have "thousands and thousands" of dollars from the buy fund tied up and out of circulation pending trial. This explanation for the absence of the original $20 bill was sufficient to justify the admission of the photocopy into evidence. See also OCGA § 24-5-25. Alternatively, the photocopy was made in the ordinary course of business and, as such, was admissible under OCGA § 24-5-26.

2. In his second enumeration, the defendant, who is African-American, asserts that the trial court improperly denied his Batson challenge regarding three jurors that were allegedly stricken by the State on the basis of race.

The trial court found that the defendant had established a prima facie case of racial discrimination by showing that the State used five of its six peremptory strikes against African-American jurors. Once a prima facie case of racial discrimination in the use of peremptory strikes is shown, the second step of a Batson analysis requires the proponent of the strikes to produce race-neutral, reasonably specific reasons for the strikes. Jones v. State, 226 Ga.App. 428, 429, 487 S.E.2d 62 (1997). Then, in the third step, "the trial court must determine, under the totality of the circumstances, whether the challenger has proven [that the] proffered reasons were merely pretext, and the strike was actually exercised for a racially discriminatory purpose. [Cit.]" ¹ Id.; see Greene v State, 266 Ga. 439, 443, 469 S.E.2d 129 (1996) (once an explanation for the strike has been proffered, "the inquiry [is] properly framed for the trial court's determination"). "A trial court's determination of a Batson challenge rests largely upon assessment of the attorney's state of mind and credibility; it therefore lies peculiarly within a trial judge's province. The trial court's factual findings must be given great deference and may be disregarded only if clearly erroneous." (Citation and punctuation omitted.) Holt v. Scott, 226 Ga.App. 812, 816, 487 S.E.2d 657 (1997); see also Purkett v. Elem, supra; Johnson v. State, 266 Ga. 775, 776-777(4), 470 S.E.2d 637 (1996); Chandler v. State, 266 Ga. 509, 510(2), 467 S.E.2d 562 (1996); Jones v. State, supra at 430, 487 S.E.2d 62; Scott v. State, 225 Ga.App. 729, 730-731, 484 S.E.2d 780 (1997); see also Whatley v. State, 266 Ga. 568, 570(3), 468 S.E.2d 751 (1996); Gardner v. State, 225 Ga.App. 427, 431-432, 483 S.E.2d 912 (1997), citing Purkett v. Elem, supra; Moore v. American Suzuki Motor Corp., 211 Ga.App. 337, 342, 439 S.E.2d 43 (1993) (deferring to the trial court's determinations after recognizing that, in the absence of a transcript of jury voir dire, the "trial court was aware of all that transpired during voir-dire questioning but we are not").

In this case, according to the State, ² juror no. 3 was a childcare worker who had only recently become employed outside the home and who lacked any other employment history. The State argued that it was looking for jurors with significant, stable work and educational backgrounds. The trial court accepted this as being a sufficient race-neutral reason for the strike. In response, the defendant asserted that the State had failed to strike similarly situated Caucasian jurors. However, the State showed that the other jurors at issue had significant work histories, regardless of their current employment status. The trial court found that the defendant had failed to prove purposeful racial discrimination as to juror no. 3, and such determination was not clearly erroneous. See Robert v. State, 227 Ga.App. 26, 488 S.E.2d 105 (1997); Scott v. State, supra at 731, 484 S.E.2d 780; see also Freeman v. State, 268 Ga. 181, 182, 486 S.E.2d 161 (1997); Holt v. Scott, supra at 817, 487 S.E.2d 657 (holding that "a Batson violation does not exist simply because one or more of [the] racially-neutral reasons was not used by the...