When cross-examined about his earlier testimony, Agent Platt explained one apparent inconsistency and admitted making another statement, so that there was nothing to impeach. See Gann v. State, 190 Ga. App. 82, 85 (3), 87 ( 378 S.E.2d 369). Moreover, judging from the request of the jurors in defendant's trial to view the videotape of the seller again, they gave the greatest weight to the objective photographic evidence while discounting defendant's alibi testimony. Accordingly, in the absence of actual prejudice, the harm alleged from the inability to cross-examine and impeach the live witness with the transcript of his previous testimony is only speculative.
In doing so, the Court of Appeals relied on several opinions from that court that hold that a police report may be admissible as a business entry where a proper foundation is laid, but is generally inadmissible when it includes hearsay statements, opinion evidence, and conclusions. Gann v. State, 190 Ga. App. 82(1) ( 378 S.E.2d 369)(1989); Reed v. Heffernan, 171 Ga. App. 83(1) ( 318 S.E.2d 700)(1984); Johnson v. State, 168 Ga. App. 271(1) ( 308 S.E.2d 681)(1983); Pickett v. State, 123 Ga. App. 1(2)( 179 S.E.2d 303) (1970). To the extent these cases or any other cases hold that a police report narrative like the one at issue is admissible as a business record, they are overruled. Johnson v. State, 247 Ga. App. 660(3)(544 S.E.2d 496)(2001); Shoney's, Inc. v. Hudson, 218 Ga. App. 171(1)( 460 S.E.2d 809)(1995); Curtis v. State, 190 Ga. App. 173(2)( 378 S.E.2d 516)(1989); Fine v. APAC-Georgia, Inc., 192 Ga. App. 895(1)( 386 S.E.2d 692)(1989); Johnson v. Dallas Glass Co., 183 Ga. App. 584(2)( 359 S.E.2d 448)(1987); Jones v. Davis, 183 Ga. App. 401(2a)( 359 S.E.2d 187)(1987); Estes v. State, 165 Ga. App. 453(2)( 301 S.E.2d 504)(1983); Bramblett v. State, 139 Ga. App. 745(4)( 229 S.E.2d 484)(1976); Calhoun v. Chappell, 117 Ga. App. 865(2)( 162 S.E.2d 300)(1968); Stubbs v. Daughtry, 115 Ga. App. 22( 1
See Gann, supra at 85; Kelley, supra at 179 (1). The trial court did not err in refusing to give an instruction on the defense of accident under the facts of this case. Gann v. State, 190 Ga. App. 82, 85 (2) ( 378 S.E.2d 369) (1989).Brown v. State, 2001 Ga. Lexis 534 (July 2, 2001).
The facts contained a police report are admissible under the business records exception to the hearsay rule. Gann v. State, 190 Ga. App. 82, 83 (1) ( 378 S.E.2d 369) (1989); Johnson v. State, 168 Ga. App. 271 (1) ( 308 S.E.2d 681) (1983); Reed v. Heffernan, 171 Ga. App. 83, 84 (1) ( 318 S.E.2d 700) (1984); Pickett v. State, 123 Ga. App. 1 (2) ( 179 S.E.2d 303) (1970). Thereafter, the prosecutor laid a proper foundation for the admission of the report through the testimony of Detective Lee.
Absent such a showing, there is no reversible error.Beene v. State, 202 Ga. App. 857 (1) ( 415 S.E.2d 545) (1992); Gann v. State, 190 Ga. App. 82, 85-87 (3) ( 378 S.E.2d 369) (1989). 2.
But this does not automatically require a new trial. Harm as well as error must be shown. Gann v. State, 190 Ga. App. 82, 85, 86-87 (3) ( 378 S.E.2d 369). The controlling issue in the case sub judice, then, is whether a free transcript would have provided defendant with an effective tool for impeachment. Defendant argues that a transcript of his first trial would have been valuable to him because it would have enabled him to impeach the State's only eyewitness — Agent Zelda Gonzalez of the Thomas County-Thomasville Narcotics Vice Division. We agree.
Where there is no harm, there is no basis for reversal. See Gann v. State, 190 Ga. App. 82, 84-85 (1) ( 378 S.E.2d 369) (1989). 4. Cummings contends the undercover agent's in-court identification of him as the seller was tainted when a show-up was conducted more than two years after the sales took place.
This was a correct statement of the law. See Gann v. State, 190 Ga. App. 82 83 (1) ( 378 S.E.2d 369) (1989). The trial court then merely instructed the jury to base its verdict on the evidence that was introduced in the case.
For a conviction to be reversed, appellant must show both error and harm. See Moreland v. State, 213 Ga. App. 75 ( 443 S.E.2d 701) (1994); Gann v. State, 190 Ga. App. 82 ( 378 S.E.2d 369) (1989). Such impeachment, while improper, did not rise to the level of reversible error.
Without deciding whether Beene adequately established he was entitled to be provided with a copy of the transcript, there can be no reversible error where no harm is shown. Gann v. State, 190 Ga. App. 82, 85-87 ( 378 S.E.2d 369) (1989). 2.