403 S.E.2d 58 | Ga. Ct. App. | 1991
Appellant was convicted by a jury of aggravated assault on a peace officer and possession with intent to distribute marijuana. He appeals the denial of his motion for new trial and raises seven enumerations of error.
2. Appellant next enumerates that the trial court erred in overruling his motion to suppress. Specifically, appellant argues that the admission of a copy of the search warrant was in error because it was not a certified copy and because the original was not accounted for; therefore, it was not the best evidence and the search was not shown to be lawful. Further, appellant argues that it was error to admit the copy upon the State’s motion to re-open evidence after the State had
The search warrant itself is the highest and best evidence of its contents. State v. Mincey, 167 Ga. App. 850 (2) (308 SE2d 18) (1983). Ordinarily, if a party seeking to introduce a photocopy of a warrant into evidence does not attempt to show that the copy was made in the regular course of business and does not properly account for the absence of the original, the photocopy would not be admissible. Mincey, supra at Division 1. Since the record does not reveal that the State made either of these showings, the admission of the photocopy of the warrant was in error. However, “admission of improper evidence is harmless when the fact sought to be shown is otherwise fully and properly established. [Cits.]” Barrett v. State, 146 Ga. App. 207 (1) (245 SE2d 890) (1978). Since the copy of the warrant was erroneously admitted, we must examine the transcript to determine if sufficient testimony was presented to carry the State’s burden of proving that facts constituting probable cause were presented to the judge. Mincey, supra at Division 2. See also Bartlett v. State, 165 Ga. App. 18 (1) (299 SE2d 68) (1983). The transcripts from the suppression hearing and the trial reveal the following: Jones testified that he was the affiant before a specific judge; that he swore to the contents of the warrant; that he obtained the warrant for the search of appellant’s apartment; and that he had the warrant when he went to execute the search. He testified as to the purchase of marijuana which preceded the issuance of the warrant and which led him to conclude probable cause existed to support a warrant for the search of the premises. Jones stated that after purchasing drugs from appellant, he immediately went to obtain the warrant. The officer who actually executed the warrant also testified that she had a warrant to execute the search. Thus, the circumstances surrounding the issuance of the warrant and the contents thereof amounting to probable cause appear from the transcript and any error in admitting the photocopy of the warrant was harmless. See Hawkins v. State, 185 Ga. App. 837 (2) (366 SE2d 222) (1988).
Appellant also argues that his motion to suppress should have been granted because the search became a general search when items
Appellant further contends that the search was unlawful, and in his third enumeration of error, contends that his convictions should be reversed because the pólice officers improperly executed the warrant and improperly attempted to enter appellant’s apartment. OCGA § 17-5-27 requires officers to give verbal notice of their authority and purpose in the execution of a search warrant. Neal v. State, 173 Ga. App. 71 (1) (325 SE2d 457) (1984). Both officers testified that when appellant opened the door, Jones displayed his badge and announced the police presence. One officer was wearing a police raid jacket and cap and we find no impropriety in the officers’ actions. Appellant’s second and third enumerations are without merit.
3. In his fourth and fifth enumerations, appellant asserts that the court erred in failing to intervene when certain statements were made by the prosecutor during his closing argument. The first comment related to a previous controversial shooting of a police officer in which the defense counsel was involved. Counsel for appellant first injected this issue into evidence in this trial by cross-examining a police officer witness about the incident and again raising the issue in his own closing argument. Clearly, defense counsel “opened the door” by bringing up the incident on these two occasions during the trial. See Rivers v. State, 147 Ga. App. 19 (3) (248 SE2d 31) (1978) (reversed on other grounds). “[I]t is well settled that in closing argument the prosecutor has considerable latitude as to what inferences may be drawn from
Appellant’s argument regarding the prosecutor’s comments during closing on other incidents involving violence against other police officers is without merit. Appellant made no objection to these comments of the prosecutor nor were curative instructions requested. As such, any objection thereto was waived. Banks, supra.
4. Since appellant did not request a jury charge on impeachment, the court did not err in failing to give such a charge, and appellant’s sixth enumeration has no merit. Perkins v. State, 152 Ga. App. 101 (4) (262 SE2d 158) (1979).
5. Appellant’s seventh enumeration that the court’s charge on intent was burden shifting and therefore erroneous likewise fails. The court’s charge was substantially identical to the charge given in Lingerfelt v. State, 255 Ga. 180 (4) (336 SE2d 250) (1985), which was specifically found not to shift the State’s burden of proof. Therefore, there was no error in giving the charge.
Judgment affirmed.