☢ test - Í

analysis also applied in Bell and Watson, above; and in Porter v. State , 278 Ga. 694, 606 S.E.2d 240 (November 22, 2004) and Brown v. State , 278 Ga. 810, 607 S.E.2d 579 (January 10, 2005). Accord, but no harmless error, Senior v. State , 273 Ga.App. 383, 615 S.E.2d 220 (May 23, 2005) (missing witness’s statement to police “went to the core of the state’s case and was not entirely cumulative of other testimony”). Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (March 8, 2004). Armed assault conviction reversed. Defendant’s Confrontation Clause rights were violated by admission of his wife’s statement to police, where she was unavailable to testify (albeit by defendant’s own invocation of marital privilege) and defendant had no prior opportunity to cross-examine her. Statement was admitted as a “statement against penal interest,” as wife was herself being questioned as a suspected party to defendant’s stabbing of victim, a man who had allegedly attempted to rape wife. “Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ [fn.] Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Nontestimonial statements, for the time being, are not a Confrontation Clause issue, but rather will be resolved by reference to rules of evidence – but opinion notes that this issue is not “definitively resolve[d]” because the statement at issue in this case “is testimonial under any definition.” Abrogates Ohio v. Roberts , 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed admission of unavailable witnesses’ statements bearing “‘adequate “indicia of reliability,”’” that is, falling “within a ‘firmly rooted hearsay exception’ or bear[ing] ‘particularized guarantees of trustworthiness.’” Casts doubt on holding of White v. Illinois , 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), to the extent it suggests that nontestimonial statements may implicate the Confrontation Clause. Only dying declarations were recognized at common law as being admissible despite the right to confront one’s accusers, and hence are the only exception recognized in this decision. Lyons v. State, 266 Ga.App. 89, 596 S.E.2d 226 (March 4, 2004). Conviction for selling cocaine affirmed. Defendant was not denied his right to confrontation where trial court admitted audio tapes of transaction between defendant and confidential informant. Tapes, including informant’s audio notes on defendant’s clothing after defendant departed, were part of res gestae. See also Moore v. State , 217 Ga.App. 207, 210, 456 S.E.2d 708 (1995) (tape of 911 call from victim and witnesses properly admitted as res gestae). Clemons v. State, 265 Ga.App. 825, 595 S.E.2d 530 (February 5, 2004). Armed robbery conviction affirmed. Prosecutor’s explanation to jury, made with court’s advance consent, that a certain witness had refused to testify, did not call for action by trial court under OCGA 17-8-75 (imposing duty on court to prevent “statements of prejudicial matters which are not in evidence”). Opinion criticizes this procedure, however; generally, “a party is not permitted to explain the failure of an absent witness to testify. While we have held in this case that any error was harmless, it is far better to prevent such situations from arising, than it is to cure them.” Suggests this may have allowed the State to “benefit from an inference on the part of the jury that the State had the evidence it said it did but could not present it because the witness’s lawyer would not allow him to testify,” thus infringing on the defendant’s “Sixth Amendment right to confront the witnesses against her;” however, defendant failed to raise this objection and thus waived it. Phipps dissents, contending that allowing prosecutor to explain witness’s absence is not harmless error, citing to Johnson v. State , 238 Ga. 59, 230 S.E.2d 869 (1976). Banks v. State, 277 Ga. 543, 592 S.E.2d 668 (February 2, 2004). Evidence didn’t support civil forfeiture order, but no error in admitting hearsay to determine probable cause for issuance of search warrant. “It has long been recognized that hearsay is admissible in determining the existence of probable cause. [Cits.] Admission of hearsay for that purpose does not violate the constitutional right of a defendant to confront the accusing witnesses, because guilt or innocence is not the issue for determination. ‘“There is ... a great ‘difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.’ [Cit.]”’ Strauss v. Stynchcombe, [224 Ga. 859, 865, 165 S.E.2d 302 (1968)]. ‘[A] finding of “probable cause” may rest upon evidence which is not legally competent in a criminal trial. [Cit.]’ United States v. Ventresca, 380 U.S. 102, 107 (85 S.Ct. 741, 13 L.Ed.2d 684) (1965).” Accord, Bell v. State , 291 Ga.App. 437, 662 S.E.2d 248 (May 7, 2008); Daniel v. State , 298 Ga.App. 245, 679 S.E.2d 811 (June 8, 2009). Baggs v. State, 265 Ga.App. 282, 593 S.E.2d 734 (January 26, 2004). Convictions for trafficking in methamphetamine affirmed. Defendant was not “denied his right to confront his accusers because the State was not required to reveal the identity of the confidential informant…. [T]he identity of the confidential informant bore no relation to [defendant’s] guilt or innocence, and thus no error could have resulted from [defendant] being unable to cross examine him.” (In this case, defendant “had no contact with the confidential informant” and never moved to disclose his identity.”)