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Final Copy 288 Ga. 653

S10A2004. BAPTISTE v. THE STATE. 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

The crime took place November 16-17, 2002, and appellant was arrested on January 27, 2003. On February 14, 2003, the Douglas County grand jury returned a true bill of indictment charging appellant with two counts of malice murder, naming Herrera and Perez Garcia as the victims, and two counts of felony murder of the same victims, with aggravated assault serving as the underlying felony. Appellant's trial commenced on January 31, 2005, and concluded on February 14, 2005, with the jury's return of its guilty verdict on the felony murder charge concerning Herrera, and its report of its inability to reach a verdict on the remaining three charges. The sentence of life imprisonment imposed on appellant was filed on February 23, 2005, and appellant filed a timely motion for new trial on March 4, 2005. Following the appointment of appellate counsel, the motion for new trial was amended on March 31, July 24, and August 25, 2009, and was denied on April 30, 2010. A notice of appeal was timely filed on May 21, 2010 and, upon receipt of the appellate record, the appeal was docketed in this Court to the September 2010 term of court. The appeal is submitted for decision on the briefs.

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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

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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 SC 2781, 61 LE2d 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

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based on affidavits signed and sworn to by the investigator before the issuing judge. See Gray v. State, 926 So2d 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
As a result of the Clayton County search warrant issued for the pickup truck, the truck was seized in Clayton County and taken to Douglas County where a Douglas County superior court judge issued a search warrant pursuant to which the seized truck was searched. At the motion to suppress hearing, the original of the Douglas County warrant was admitted into evidence, as was the investigator's signed affidavit with jurat. 4
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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

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