Hughes v. State , 217 Ga. App. 766 ( 1995 )

Beasley, Chief Judge,

concurring specially.

I concur fully in all divisions of the majority opinion except Division 2. As to it, the letter which the defendant wrote to the victim after the assault was admissible as such. It was demonstrative evidence, a written communication that was not given orally and memorialized in writing. It was not written testimony, a statement recorded for the judicial process, as are depositions, interrogatories, recorded confessions, and written dying declarations. It was not “a paper calculated to influence a jury.” Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1905). “The reason given for not allowing [depositions] to be delivered to the jury is, that the testimony which they contain, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” Id.

Decided July 10, 1995. William M. Traylor, for appellant. J. Tom Morgan, District Attorney, Desiree L. S. Peagler, Assistant District Attorney, for appellee.

Instead, the letter constituted part of the activity between the defendant and the victim. As in Vinyard v. State, 177 Ga. App. 188, 190 (338 SE2d 766) (1985), “[i]t was the best evidence of the writing which the state sought to prove and higher proof of its contents [and of what the victim saw when she opened it] than oral evidence thereof. OCGA § 24-5-4.” The letter constituted part of the activity between the defendant and the victim.

I am authorized to state that Judge Ruffin joins in this special concurrence.