DeKelvin Rafael Martin has been indicted for the murders of Travis and Ila Ivery and Savion Wright, the grandparents and the twelve-year-old son, respectively, of Martin’s girlfriend, Tymika Wright. Martin has also been charged with Ms. Wright’s rape, as well as other related crimes. The State has filed written notice of its intent to seek the death penalty. This Court granted Martin’s application for interim review and ordered the parties to address whether the trial court erred in denying Martin’s motion in limine to preclude the admission of Ms. Wright’s prior testimony. For the reasons set forth below, we affirm the trial court’s order. On January 4, 2005, Martin pleaded guilty to all sixteen counts of his indictment, including the three murder charges. Immediately following the entry of his plea, a bench trial was held on the issue of sentencing, during which Ms. Wright testified for the State. In December of 2006, Martin was allowed to withdraw his guilty plea due to the trial court’s failure to inform him of all his constitutional rights as set out in Boykin v. Alabama , 395 U. S. 238 89 SC 1709, 23 LE2d 274 1969. Ms. Wright is now deceased, and Martin filed a motion in limine to preclude the admission of her prior testimony at his guilt/innocence trial. The trial court denied Martin’s motion, holding that Ms. Wright’s prior testimony is admissible under the provisions of OCGA § 24-3-10 and that its admission will not violate the Confrontation Clause under Crawford v. Washington , 541 U. S. 36 124 SC 1354, 158 LE2d 177 2004.
Whether Ms. Wright’s prior testimony “is admissible as a matter of Georgia evidence law, and whether it is admissible as a matter of federal constitutional law, are two distinct questions.” Prater v. State , 148 Ga. App. 831, 834 5 253 SE2d 223 1979 citing California v. Green , 399 U. S. 149, 155 90 SC 1930, 26 LE2d 489 1970 for the proposition that, while hearsay rules and the Confrontation Clause are designed to protect similar values and may “overlap,” they are not congruent. While Wright’s testimony must pass both tests in order to be admissible, in keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds Cit., we first address the evidentiary issue raised by the appeal. Powell v. State , 270 Ga. 327, 327-328 1 510 SE2d 18 1998.
