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Cosby v. State, 254 Ga.App. 372, 562 S.E.2d 765 (March 21, 2002). Defendant and four co-defendants were charged with armed robbery. Two co-defendants pled guilty and testified at trial of defendant and two remaining co-defendants. The two latter co-defendants did not testify at trial, but their statements identifying defendant as the person who entered the store to be the look-out and as the person who divided the proceeds of the crime were admitted over objection. Held, unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a non-testifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions and regardless of whether the incriminated defendant has made an interlocking incriminating statement. Only when the statement does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant will the statement meet the Confrontation Clause’s standard for admissibility. A court’s violation of the confrontation clause’s admissibility requirements is harmless only when harmless beyond a reasonable doubt; that is, where there exists overwhelming evidence of a defendant’s guilt apart from the statement of the co-defendant. Here, the evidence was not overwhelming and defendant’s conviction must be reversed. Moody v. State, 273 Ga. 24, 537 S.E.2d 666 (October 23, 2000). Felony murder conviction affirmed. Admission of an unavailable witness’s testimony from the defendant’s preliminary hearing did not infringe upon the defendant’s right of cross examination, since the defendant had the opportunity to cross examine the witness at the preliminary. Baker v. State, 241 Ga.App. 666, 527 S.E.2d 266 (December 20, 1999). Physical precedent only. Defendant’s child molestation conviction affirmed; police officer was properly allowed to testify to statements by similar transaction victim under necessity exception. Finds no Confrontation Clause violation “‘since there were particularized guarantees of trustworthiness,’” quoting Moore v. State, 207 Ga.App. 412, 417(2), 427 S.E.2d 779 (1993).” Of doubtful validity in light of Crawford v. Washington , 541 U.S 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) – post-incident statement to police reporting crime may indeed be res gestae and meet the necessity exception, but clearly appears to be testimonial and thus violative of defendant’s confrontation rights. 18. WITNESS INVOKES FIFTH AMENDMENT/REFUSES TO TESTIFY Johnson v. State, 293 Ga. 530, 748 S.E.2d 434 (September 9, 2013). Malice murder and related convictions affirmed; no due process violation where prosecutor was allowed to cross-examine hostile witness on the prior statement which he repudiated as “lies” on the stand. Distinguishing Douglas v. Alabama, 380 U.S. 415 (85 S.Ct. 1074, 13 L.Ed.2d 934) (1965), where prosecutor was allowed to read aloud prior statement of witness who “invoked the Fifth Amendment and refused to testify.” “In stark contrast, [witness] Hill took the stand in this case, admitted that he had previously talked with police, and testified that his previous statements were based on lies and rumors— testimony that actually inured to Johnson's benefit. Thereafter, the State failed to place Hill's prior recorded statement into evidence, and, as a result, Johnson had the ability to argue to the jury that Hill was not credible and that the only evidence was that he was an admitted liar.” Gober v. State, 300 Ga.App. 202, 684 S.E.2d 675 (September 23, 2009). No confrontation violation where witness gave substantive answers to some questions, but claimed not to remember some of the events in question. Distinguishing Gay v. State, 279 Ga. 180, 182 (2) (611 S.E.2d 31) (2005) (witness completely refused to testify). Green v. State, 298 Ga.App. 17, 679 S.E.2d 348 (May 18, 2009). Green and three co-defendants were charged with attempting to purchase 100 pounds of marijuana from an undercover officer. “The state … called co-defendant Robinson, who had elected to testify at his own trial the day before. [fn] When asked whether he had testified in his own trial concerning ‘these acts that involved you and ... Green,’ Robinson responded, ‘I don't know.’ Robinson then denied that he had been represented by counsel ‘yesterday before a jury on these same charges.’ In a subsequent series of questions concerning Green's role in the drug transaction, Robinson responded variously with ‘I don't know that either,’ ‘I don't want to answer the question,’ ‘No answer,’ and ‘I don't wish to testify. Hold me in contempt. I take the contempt.’ Finally, Robinson denied that he was afraid of Green or that he had ever said that he was afraid of Green. Following Robinson's direct examination by the state, defense counsel expressly declined to cross-examine him. Over objection, the state then recalled the case agent, who read to the jury certain portions of the certified transcript of Robinson's testimony from his own trial the previous day and a statement Robinson had made to the police,” which implicated Green and repeatedly expressed that Robinson was afraid of Green. Held, no violation of defendant’s right to confrontation: “Robinson was on the witness stand and subject to cross-examination, but defense counsel expressly declined the opportunity to cross-examine him. Hence, no effort was made by defense counsel to ascertain whether Green would continue his