The trial court correctly admitted this evidence over defendant's objection that no warnings as prescribed by Miranda v. Arizona, 384 U.S. 436 ( 86 SC 1602, 16 L.Ed.2d 694) preceded his volunteered statement. Leatherwood v. State, 212 Ga. App. 342, 343 (2) ( 441 S.E.2d 813). See also Jenkins v. State, 219 Ga. App. 339, 340 (1) ( 465 S.E.2d 296).
Since Detective Hill's denial of any initial promise of leniency is corroborated by the transcript of defendant's custodial interview, the trial court's pre-trial determination of voluntariness "is supported by evidence, is not clearly erroneous, and will not be disturbed on appeal. Wilson v. State, 211 Ga. App. 457 (1)[, supra]." Leatherwood v. State, 212 Ga. App. 342, 343 (2) ( 441 S.E.2d 813). (b) But the trial court's subsequent reasoning that it could not reconsider its previous ruling, in response to a renewed challenge to voluntariness based on additional evidence, is erroneous. "The denial of a pre-trial suppression motion, an interlocutory evidentiary ruling, is subject to review by the presiding judge ex mero motu. [Cit.] `The trial court may, within its sound discretion, consider anew a suppression motion previously denied.
However, in their appellate briefing, the Davis Defendants have not challenged the use of this extrinsic evidence at trial and thus have abandoned any argument in that regard. See Leatherwood v. State, 212 Ga. App. 342, 345 (5) (441 SE2d 813) (1994) (evidentiary issues not argued on appeal “are deemed abandoned”).
” (Citations omitted.) Leatherwood v. State, 212 Ga.App. 342(1)(a), 441 S.E.2d 813 (1994). “As the appellant, [Houser] had the burden to affirmatively show error by the record.”
(Citation and punctuation omitted.) Leatherwood v. State, 212 Ga. App. 342, 343 (3) ( 441 SE2d 813) (1994). See Warner v. State, 281 Ga. 763, 766 (3) ( 642 SE2d 821) (2007) (state may attempt to impeach its own witness).
Likewise, the state waived any argument that the officer's entry was justified by exigent circumstances. See Folsom, 286 Ga. at 110 (3); Harper, 285 Ga. App. at 266 (2); Leatherwood v. State, 212 Ga. App. 342, 344-345 (5) ( 441 SE2d 813) (1994); Goins, 184 Ga. App. at 454. Not only was this argument not made in the trial court, but the record contains no evidence of exigent circumstances that would have otherwise justified the officer's warrantless entry into the housing unit.
See Watts, 274 Ga. at 375 (2); Davis, 266 Ga. at 213. See Leatherwood v. State, 212 Ga. App. 342, 342-343 (1) (b) ( 441 SE2d 813) (1994).Davis, 266 Ga. at 213.
Such a tactical decision is virtually unassailable on appeal. We note that the tape was not made part of the record on appeal. See Leatherwood v. State, 212 Ga. App. 342 ( 441 S.E.2d 813) (1994) ("`This court cannot consider the factual assertions of the parties appearing in briefs where such evidence does not appear on the record.'").Bagwell v. State, 270 Ga. 175, 179(1)(e) ( 508 S.E.2d 385) (1998) (attorney's "election to allow the tape was a mater of tactics and strategy, and whether ultimately `wise or unwise' did not amount to ineffective assistance of counsel.").
Smith v. State, 192 Ga. App. 768, 771 (2) ( 386 S.E.2d 530) (1989). See also Copeland v. State, 248 Ga. App. 346, 348 (1) ( 546 S.E.2d 351) (2001); Leatherwood v. State, 212 Ga. App. 342, 342-343 (1) (b) ( 441 S.E.2d 813) (1994).Judgment affirmed.
We note that the chain of custody requirement does not apply to distinct and recognizable physical objects that can be identified upon observation, such as videotapes. Gadson v. State, 263 Ga. 626, 627 (2) ( 437 S.E.2d 313) (1993). See Leatherwood v. State, 212 Ga. App. 342, 344 (5) ( 441 S.E.2d 813) (1994). Second, even if the issue was preserved, the Berky decision would not require a reversal in this case.