Appellants were tried together and convicted of malice murder in connection with the death of 15-year-old Brian Bowling. 1
*7 The State presented evidence that Brian suffered a fatal gunshot wound to his right temple while in his bedroom in his parents’ home in rural Floyd County. A .38 caliber handgun was found between Brian’s feet. A neurosurgeon who treated Brian testified that his report of his examination of Brian did not mention finding a powder bum, often left by a gun fired in close proximity to skin, a fact he would have included had he found such a burn. The neurosurgeon also testified that the 45 percent angle of the bullet’s entrance into the victim’s head was “unusual” for a self-inflicted wound, as was the lack of powder burns.
It was undisputed that appellant Cain Joshua Storey, Brian’s best friend, had entered Brian’s room several minutes before the shot was fired, and those members of Brian’s family who had seen Storey before he entered Brian’s room described him as acting strangely and appearing nervous. After the shooting, Storey initially told Brian’s family members that he “didn’t mean to kill him,” and that he “didn’t mean for him to die.” He then said that Brian had shot himself with a gun that Storey had brought to Brian’s room, making Storey feel responsible for Brian’s death. A hearing-and-speech-impaired man visiting the Bowling home the night of the shooting testified that he saw a man he later identified as appellant Darrell Lee Clark running away from the home immediately after the shot was fired. Family members who entered Brian’s room after the shot was fired noticed that a plywood board normally positioned in front of Brian’s broken window was out of place, and testified that Brian and his friends used the window as a means of ingress into and egress from Brian’s room.
Through the testimony of a woman who hosted a party attended by both appellants three and one-half months after Brian’s death, the State presented evidence that Storey had told the witness, in Clark’s presence, that they were members of a gang called “Free Birds” and that they had shot Brian because he knew too much about their burglary of a safe. The party hostess also testified that she had learned in her Storey-Clark conversation that Brian had wanted to leave the gang and its activities. The witness stated that Clark told her he was present when Brian was shot, but that he had not pulled the trigger. The witness further testified that appellants told her the gang had rules promising death as punishment for a member who talked to *8 police. Through the testimony of Bowling family members and police! investigators, the jury was informed that, a week before he died,[ Brian had talked with police, in Storey’s presence, about the theft of a safe and its contents from Storey’s father. At the time of Brian’sl conversation with the police, appellants Storey and Clark had been! arrested for the theft of the safe, and the investigating officer! described Brian’s statement as useful to the investigation since it I corroborated. Storey’s statement which had implicated Clark as aj participant in the theft of the safe.
1. The evidence summarized above was sufficient to authorize a | rational trier of fact to find beyond a reasonable doubt that appellants were guilty of murder.
Jackson v. Virginia,
2. Appellant Storey contends on appeal that the trial court erred in denying his motion in limine which sought to preclude the State from mentioning in its opening statement appellant Storey’s admission to police that he had accidentally shot Brian.
“[T]he opening statement is of no small significance in that it outlines for the jury what a party intends to show at trial.”
Sims v. State,
3. A deputy county coroner who saw the victim’s wound at the hospital and again at a funeral home testified at trial. After he admitted that he had never been allowed to give an expert opinion in court regarding the existence of gunpowder on a body, and that his *9 ixperience and training did not enable him to look at an object and five a scientific opinion whether gunpowder residue was present Decause examination by microscope was necessary, the trial court leclined to certify the coroner as an expert witness. Instead, the depity coroner was permitted to give his lay opinion, based on his familiarity with the appearance of powder bums on human flesh and his examination of the victim, to testify that he saw no visible powder marks on the victim which meant that the fatal shot had been fired from a distance of at least 12-18" from the victim’s head.
Even if error, the admission of the deputy coroner’s testimony was not reversible error as it is cumulative of the neurosurgeon’s testimony that he found no powder burns on the victim, and of the testimony of the Crime Lab’s firearms expert that gunpowder residue is not found on a target when the shot is fired from a minimum distance of three feet. See
Williams v. State,
14. Storey takes issue with the trial court’s admission of evidence concerning the existence of a gang and the punishment for one who told police about the criminal activities of members. The State’s theory in this case was that the victim and appellants were members of a gang and that the victim had been killed for talking to police about a crime members of the gang had committed. The State is authorized to present evidence of a defendant’s motive for allegedly committing a criminal act.
Johnson v. State,
5. Appellant Clark sees reversible error in the trial court’s admission, under the necessity exception to the statute prohibiting the admission of hearsay evidence (OCGA § 24-3-1), of testimony concerning a statement made by the victim two months before his death. At trial, the victim’s brother-in-law testified that Brian had told him that Brian and appellants were “in a gang called ‘Free Birds’. . . .”
It is undisputed that the witness's testimony as to what Brian purportedly had said was hearsay, the admission of which is limited to specified cases of necessity. OCGA § 24-3-1(b);
McKissick v. State,
After the completion of the three-pronged examination of whether the hearsay is “necessary,” the trial court must then examine whether the hearsay statement is surrounded by “particularized guarantees of trustworthiness,” that is, whether there is “something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.”
Higgs v. State,
*11 6. Over appellants' objections, the trial court permitted two women who had cleaned the Storey home to testify about the handwritten contents of a composition book they came across during their work, some six to ten weeks before Brian died. The book, on the cover of which was written "Free Birds," contained a list of names denoted as "members," which list included the victim and appellants, and "rules" to cover the behavior of the members. 2 One of the women, a relative of appellant Storey, testified she asked him about the book and he told her it belonged to another young man. The book itself was not offered as evidence, and the purported author/owner of the book did not testify. Appellants contended at trial and now on appeal that the testimony of the women regarding the contents of the writing was not the best evidence of the writing and was inadmissible hearsay.
The “best evidence” rule, embodied in OCGA § 24-5-4,
3
means that, when the contents of a writing are material, the original of the writing must be produced or its absence accounted for. Green, Ga. Law of Evidence (4th ed.), § 100. Secondary evidence of the contents of a writing will be admissible “if an original writing is properly authenticated, its existence and admissibility shown, and its absence accounted for. . . .” Rumsey, Agnor’s Ga. Evid. (3rd ed.), § 13-8. See also OCGA § 24-5-25. In the case at bar, the secondary evidence was admitted without the proponent establishing the existence, admissibility and authentication of the composition book, and without accounting for the absence of the original. Compare
Summerour v. State,
7. Seven months after Brian's death, a man contacted police and told them his speech-and-hearing-impaired brother had information about the shooting. Using his brother as an interpreter, the impaired witness told the investigating officer he had seen someone run by the *12 Bowlings' front window immediately after the fatal shot was fired. The officer left the witness and put together a six-photo lineup which he presented to the witness who, without waiting for further instruction from the officer, immediately selected appellant Clark's photo as depicting the man he saw running from the scene of the shooting. The witness later identified Clark at trial through a sworn and qualified sign language interpreter. 4 Appellant Clark contends the photo lineup was impermissibly suggestive, thereby tainting the witness's in-court identification of Clark, and appellant Storey maintains the witness's testimony should have been struck due to his inability to communicate.
*11 (a) The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.
(b) Written evidence of a writing is considered of higher proof them oral evidence
*12
(a) While the transcript reflects some difficulty in communicating with the witness, the witness answered the questions put to him through the interpreter. The credibility of the evidence elicited through the use of the interpreter was for the jury who observed the witness’s behavior and responses.
Hensley v. State,
(b) It is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.
Neil v. Biggers,
A photocopy of the photo lineup displayed to the witness contains photos of six young, white males with shoulder-length hair and a moustache. Most of appellant Clark's grounds for finding the lineup impermissibly suggestive (the witness's difficulty in communicating and his use during the photo lineup of his brother as an interpreter;
*13
the length of time between the shooting and the witness's report and the identification procedure; his acquaintance with the victim's family who was rumored to believe that Clark was involved in Brian's death) are not assertions that the identification procedure was impermissibly suggestive, but are factors which go to the credibility of the witness, or which go to determining whether there was a substantial likelihood of misidentification, undertaken only after it is determined that the identification procedure was impermissibly suggestive. See
Whatley v. State,
The only allegation which goes to the identification procedure itself is appellant Clark’s assertion that the police officer who put the lineup together told the brother of the witness that he was going to put appellant Clark’s photo in the lineup. The factual premise for the assertion is based on answers to defense counsel’s questioning of the officer who presented the lineup to the witness. After the officer testified on direct examination that he had not indicated to either the witness or his brother that a photo of “the individual” was in the lineup, the officer several times gave an affirmative response to defense counsel’s questions that he told the witness and his brother that he “would go fix a lineup with [appellant] Clark’s picture in it, and . . . bring it back and present it to them.” On re-direct and recross-examination, the officer could not recall giving the brothers the name of anyone he was going to include in the lineup.
Even if we were to assume from the officer’s unclear testimony that he did mention appellant by name to the witness’s brother who, in turn, relayed the information to the witness (there being no evidence of the latter fact), we find no error in the admission of the identification testimony. A police officer displaying a lineup to a victim or witness should avoid telling the person that the lineup contains the police officer’s suspect.
Mitchell v. State,
Judgments affirmed.
Notes
The victim suffered a gunshot wound to the head on October 18, 1996, and died the next day. In an indictment returned August 8, 1997, appellants were charged with malice murder and conspiracy to commit murder. Appellant Storey was additionally charged with involuntary manslaughter. Their joint trial commenced on January 12,1998, and concluded on January 19 with the jury’s return of guilty verdicts on the murder and conspiracy *7 charges. Appellants were sentenced to life imprisonment for the murder conviction on January 27. Clark filed a motion for new trial on February 10, and amended it on September-30. Storey filed a motion for new trial on February 24 and amended it on October 5. The trial court denied both amended motions on October 28, and appellants filed separate notices of appeal on November 30. Their appeals were docketed in this Court on January 6, 1999, and oral argument was heard on March 15,1999.
Both women testified to the substance of some of the “rules” each saw listed in the composition book: “Never talk to [police]. Always stick up for your brother. Never do drugs. [I]f a brother is caught narcing on .. . another brother, the punishment’s death.”
OCGA § 24-5-4 states:
OCGA § 24-9-4 provides that “[n]o physical defect in any of the senses shall incapacitate a witness. An interpreter may explain the evidence of such witness.”