Freeman v. State ( 1995 )

Smith, Judge,

concurring specially.

I concur specially in order to clarify two points.

1.1 agree that the videotape of one drug sale was properly admitted under Harper v. State, 213 Ga. App. 444, 447 (4) (445 SE2d 303) (1994). However, I cannot support the tacit expansion here of the “silent witness” rule established in State v. Berky, 214 Ga. App. 174, 175 (447 SE2d 147) (1994). Reading Berky in its entirety, it should reasonably be viewed as restricting the “silent witness” rule to cases of necessity, such as the death or unavailability of the authenticating witness required by Allen v. State, 146 Ga. App. 815, 817 (2) (247 SE2d 540) (1978). Any expansion of the rule in Berky should be both explicit and required by the facts of the case presented.

2. I also concur with respect to the sufficiency of the evidence to support Freeman’s conviction. Construing the evidence to support the jury’s verdict, there was testimony that Freeman and Ballard customarily acted as lookouts for one another. This testimony, in combination with the video footage of the drug sale showing Freeman’s presence, is sufficient to show that Freeman acted as a lookout on the occasion recorded on videotape. The majority also appears to agree with this reasoning, and I write simply to clarify that holding. To a reader not having, as we do, the benefit of the entire record, it might appear that evidence of customary acts on another occasion, without more, was sufficient to support a conviction. Testimony of that kind would have been insufficient without the evidence of Freeman’s presence on this occasion, as shown on the videotape.