As used in this chapter, the term:
The contents of the statement shall be considered but shall not alone be sufficient to establish the declarant's authority under subparagraph (C) of this paragraph, the agency or employment relationship and scope thereof under subparagraph (D) of this paragraph, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subparagraph (E) of this paragraph.
(Code 1981, §24-8-801, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Failure to deny averments in pleading as constituting admission, § 9-11-8(d).
Definitions that apply to this article; exclusions from hearsay, Fed. R. Evid. 801.
Law reviews.- For article discussing exceptions to the hearsay rule and advocating elimination of the res gestae exception, see 5 Mercer L. Rev. 257 (1954). For article, "Evidence from Computers," see 8 Ga. L. Rev. 562 (1974). For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For article, "The New 'Necessity Exception' to the Hearsay Rule in Georgia: A New Rule of Inclusion?," see 16 Ga. St. U.L. Rev. 573 (2000). For article, "Evidence," see 53 Mercer L. Rev. 281 (2001). For article, "Wills, Trusts & Administration of Estates," see 53 Mercer L. Rev. 499 (2001). For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018). For article, "Parallel Proceedings," see 25 Ga. St. B.J. 20 (Feb. 2020). For note, "Lilly v. Virginia: Answering the Williamson Question - Is the Statement Against Penal Interest Exception 'Firmly Rooted' Under Confrontation Clause Analysis?," see 51 Mercer L. Rev. 1343 (2000). For comment on Brewer v. Henson, 96 Ga. App. 501, 100 S.E.2d 661 (1957), holding that statements made by patient to physician which are not equivalent to spontaneous and voluntary expressions of present pain and suffering are not admissible as evidence, see 21 Ga. B.J. 97 (1958). For comment on Moore v. Atlanta Transit Sys., 105 Ga. App. 70, 123 S.E.2d 693 (1961), see 14 Mercer L. Rev. 445 (1963). For comment as to admissibility of evidence of a criminal conviction in a civil action arising out of the same factual situation, in light of Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), see 16 Mercer L. Rev. 464 (1965). For comment on Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), and Georgia's coconspirator exception to the hearsay rule, see 22 Mercer L. Rev. 791 (1971). For comment on Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 182 S.E.2d 508 (1971), upholding admission of psychiatric opinion based on subjective declarations of patient, see 8 Ga. St. B.J. 554 (1972). For comment, "24-3-2: Evidence to Explain Conduct and Ascertain Motive Gets Disciplined," see 36 Mercer L. Rev. 733 (1985).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1873, §§ 2206, 3784, 3790, former Code 1882, §§ 2206, 3771, 3774, 3790, former Civil Code 1895, §§ 3034, 5176, 5189, 5195, former Penal Code 1895, §§ 997, 1002, 1003, former Civil Code 1910, §§ 3606, 5762, 5763, 5766, 5776, 5782, former Penal Code 1910, §§ 1023, 1025, 1028, 1029, former Code 1933, §§ 4-315, 38-302, 38-306, 38-401, 38-403, 38-409, and former O.C.G.A. §§ 10-6-64,24-3-1,24-3-2,24-3-5,24-3-15,24-3-31, and24-3-36 are included in the annotations for this Code section.
Evidence not offered to prove truth of matter asserted.
- Challenged testimony was not inadmissible hearsay because: (1) neither the identification testimony by the victim, nor a detective regarding the alleged hearsay in obtaining the defendant's name, violated the defendant's rights to confrontation and cross-examination as neither witness actually repeated any alleged hearsay; (2) the evidence did not create a credibility problem that could only be cured by cross-examination, and the state did not offer the evidence to establish the truth of the matter asserted; and (3) the testimony explained why the police included the defendant's photograph in the line-up. Jennings v. State, 285 Ga. App. 774, 648 S.E.2d 105 (2007), cert. denied, No. S07C1576, 2007 Ga. LEXIS 667 (Ga. 2007) (decided under former O.C.G.A. § 24-3-1).
Homeowner countersued a contractor for fraud. Testimony by a subcontractor that the contractor's project supervisor told the subcontractor to increase the bid because the homeowner was "loaded" was not hearsay, because the testimony was not admitted to show the truth of the matters asserted, and the testimony was a circumstance relevant to the fraud claim. Lumpkin v. Deventer N. Am., Inc., 295 Ga. App. 312, 672 S.E.2d 405 (2008) (decided under former O.C.G.A. § 24-3-1).
Locksmith receipt indicating that defendant had a key made for a vehicle was not inadmissible hearsay evidence in the defendant's prosecution for, inter alia, trafficking in cocaine under O.C.G.A. § 16-13-31(a)(1) because the receipt was not offered as proof of what was asserted therein but as evidence that a piece of paper with the defendant's name on it was found in the same residence where cocaine and firearms were located, thereby linking the defendant circumstantially to the residence and the contraband; thus, the receipt was original evidence. Weems v. State, 295 Ga. App. 680, 673 S.E.2d 50 (2009) (decided under former O.C.G.A. § 24-3-1).
As an officer's testimony about a dispatcher's statement that two Hispanic males were involved in a firearm discharge was not offered for the truth of the dispatcher's statement, but to explain the officer's subsequent conduct, the testimony was not hearsay. Herieia v. State, 297 Ga. App. 872, 678 S.E.2d 548 (2009) (decided under former O.C.G.A. § 24-3-1).
Probate court did not abuse the court's discretion by admitting double hearsay from a witness who, when asked what the testator told the witness that the propounder had said about the caveator, responded, "that the caveator had taken his money and went to Florida and was not coming back" because the second level of alleged hearsay, what the propounder said to the testator about the caveator, was not hearsay, since it was not introduced for the truth of the matter asserted but rather for the effect it had on the testator; the caveator's theory of the case was that the statement by the propounder to the testator was not true, and the evidence was introduced to show where the testator got the misinformation. McDaniel v. McDaniel, 288 Ga. 711, 707 S.E.2d 60 (2011) (decided under former O.C.G.A. § 24-3-1).
In a felony murder while in the commission of aggravated battery in connection with the death of a child conviction, the detective's testimony about the communication with the pediatric hospital doctors regarding their beliefs that the child's injuries were not the result of an accident was not improperly admitted into evidence because the testimony was not offered for its truth that the fatal injuries were not the result of accident; because the cause of death was not the ultimate issue for the jury to determine; and because, even assuming that the testimony was hearsay and improperly admitted, the testimony was merely cumulative of other properly admitted evidence, and, thus, it was highly probable that the testimony's admission did not affect the outcome at trial. Dyer v. State, 295 Ga. 173, 758 S.E.2d 301 (2014)(decided under former O.C.G.A. § 24-3-1(a)).
Because the co-defendant's statement was not offered for the truth of the matter asserted as the statement was not offered to show that the co-defendant intended to shoot the defendant if the defendant did not shoot the victim, and, instead, the testimony was admitted as the testimony was relevant to show the effect of the co-defendant's statement on the defendant and the defendant's possible motive for shooting the victim. Garner v. State, 342 Ga. App. 824, 805 S.E.2d 464 (2017), cert. denied, 2018 Ga. LEXIS 265 (Ga. 2018).
Prior consistent statement.
- Because the veracity of a witness's trial testimony was placed in issue, the witness's prior testimony was properly admitted as a prior consistent statement. Jackson v. State, 271 Ga. App. 278, 609 S.E.2d 207 (2005) (decided under former O.C.G.A. § 24-3-1).
Victim's statement to a doctor was properly admitted as a prior consistent statement as the victim testified at trial and was cross-examined by the defendant; the defendant had asserted in opening statement and the defendant implied during cross-examination that because the victim's parent would have been upset if the parent believed the victim were having consensual sex, the victim falsely testified that the defendant forced the victim to engage in sex, which testimony was designed to preserve the victim's relationship with the parent, and to continue the victim's receipt of food and shelter from the parent. Smith v. State, 282 Ga. App. 339, 638 S.E.2d 791 (2006) (decided under former O.C.G.A. § 24-3-1).
When a victim testified that the victim could not remember all of the details of a robbery, which occurred six years before the trial, it was not error to introduce the victim's prior consistent statement. The victim was a forgetful witness who testified at trial and who was cross-examined by the defendant. Williams v. State, 291 Ga. App. 279, 661 S.E.2d 658 (2008) (decided under former O.C.G.A. § 24-3-1).
After the victim's mother testified that the defendant admitted to the mother that the defendant molested the victim, the trial court did not err in allowing an investigator to testify that the mother had told the investigator the same thing because the mother testified at trial and was cross-examined, and the defendant placed the mother's veracity in issue during cross-examination by attempting to show that the mother had an improper motive for testifying against the defendant, a motive that developed after the mother made the prior consistent statement to the investigator. Davis v. State, 303 Ga. App. 799, 694 S.E.2d 381 (2010) (decided under former O.C.G.A. § 24-3-1).
Admission of an investigator's summary of a victim's prior consistent statement was not reversible error because the record contained other unchallenged testimony by witnesses other than the victim conveying the content of the victim's prior statement and that the victim's prior statement was consistent with the victim's trial testimony; it was not likely that the subsequent admission of the victim's statement itself contributed to the guilty verdict, and by the time the statement was read, any bolstering effect of the repetitive nature of the prior statement had occurred without objection. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010) (decided under former O.C.G.A. § 24-3-1).
Trial court did not err by admitting prior consistent statements of the victim and the defendant's son in videotaped interviews that also included comments by the interviewer because nothing in the record demonstrated that the portion of the videotape that the trial court ruled would not be presented for the jury was played for the jury, and the defendant's counsel made no objection after the videotape was played. Wade v. State, 305 Ga. App. 382, 700 S.E.2d 827 (2010), cert. denied, 131 S. Ct. 3066, 180 L. Ed. 2d 893 (2011) (decided under former O.C.G.A. § 24-3-1).
Witness's recorded statement to a detective was admissible as a prior consistent statement because the witness, who was an inmate in the jail, was present at trial and was cross-examined, during which defense counsel endeavored to show that the witness had a motive to fabricate - as the witness was facing serious criminal charges - that arose subsequent to the time the witness made a statement to the detective. Franklin v. State, 298 Ga. 636, 784 S.E.2d 359 (2016).
Trial court did not err in admitting a witness's prior consistent statements because the defendant attacked the witness's veracity by suggesting there were inconsistencies between the witness's trial testimony and the witness's written statement, and that the witness fabricated the witness's testimony after giving the written statement; furthermore, because the thrust of the defendant's cross- examination was a charge that the witness fabricated a different version of events after giving the witness's written statement, the trial court did not err in admitting the witness's videotaped interview with the police. Dorsey v. State, 303 Ga. 597, 814 S.E.2d 378 (2018).
Even if the statements of the defendant's family members regarding the victim's abuse of the defendant could have served to rebut a detective's testimony that the defendant's pretrial account of the victim's behavior prior to the shooting was not consistent with the physical evidence and that the detective was unable to gain access to photos showing that the victim, the defendant's husband, had abused the defendant on a prior occasion, those statements were not admissible as prior consistent statements because the family members did not testify at trial; thus, the trial court did not plainly err in not admitting those statements. Smith v. State, Ga. , 845 S.E.2d 598 (2020).
Prior statement by testifying witness.
- Since the informant testified at the defendant's trial for sale of methamphetamine and was subject to cross-examination about a prior consistent statement, evidence concerning that statement was not hearsay. Hagan v. State, 353 Ga. App. 534, 839 S.E.2d 1 (2020).
When testimony considered hearsay.
- Testimony is considered hearsay only if the witness is testifying to another party's statement in order to prove or demonstrate the truth of that statement. Otherwise it is a verbal act and thus original evidence rather than hearsay. Hurston v. State, 194 Ga. App. 226, 390 S.E.2d 119 (1990) (decided under former O.C.G.A. § 24-3-1).
Evidence of violent acts committed by the victim against either the defendant or against third parties may be introduced by a criminal defendant claiming justification, and that is so because the key showing must be that the victim was the aggressor in the fatal encounter. State v. Hodges, 291 Ga. 413, 728 S.E.2d 582 (2012) (decided under former O.C.G.A. § 24-3-2).
Statements made by the declarants themselves are not hearsay. C & R Fin. Lenders, LLC v. State Bank & Trust Co., 320 Ga. App. 660, 740 S.E.2d 371 (2013).
Latent fingerprint card not hearsay.
- Trial court did not err in overruling defendant's hearsay objection to the entry into evidence of a latent fingerprint card, which was identified by an officer other than the one who took the impression, because the card at issue simply showed an image of part of a window with fingerprints thereon, and it did not contain any representations or conclusions of a third party; thus, neither the testimony of the officer, nor the latent fingerprint card, was hearsay. Bates v. State, 322 Ga. App. 319, 744 S.E.2d 841 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Testimony as to another feelings not a "statement" and not hearsay.
- In the defendant's trial for armed bank robbery, defendant's counsel was not ineffective for failing to object to a bank customer's testimony that the customer felt not free to leave the bank and the customer's spouse "felt the same way," because the testimony was not hearsay under O.C.G.A. § 24-8-801(c) in that the customer did not testify to any statement allegedly made by the spouse. Odle v. State, 331 Ga. App. 146, 770 S.E.2d 256 (2015).
Insurance letters stating date of loss.
- Plaintiff failed to show that insurance letters stating the date of loss were anything other than unauthenticated documents containing inadmissible hearsay, which could not be considered on summary judgment. DirecTV, LLC v. White, 355 Ga. App. 404, 844 S.E.2d 289 (2020).
Prior inconsistent statement of witness admissible.
- Even if a witness's out-of-court statement to a detective was hearsay under former O.C.G.A. § 24-3-1(a), it was admissible as a prior inconsistent statement under former O.C.G.A. § 24-9-83 because the witness testified the witness did not remember meeting with the detective and the witness did not tell the detective that the witness's previous statement was incomplete. Welch v. State, 298 Ga. 320, 781 S.E.2d 768 (2016).
Upon review of a witness's testimony and prior statement, trial counsel was not ineffective in failing to object to the detective's testimony about the witness's statement as hearsay because the trial court likely would have exercised the court's discretion to admit the evidence as a prior inconsistent statement as the defendant admitted that the witness's statement to the detective was a little bit contradictory to what the witness testified to. Faust v. State, 302 Ga. 211, 805 S.E.2d 826 (2017).
Given a witness's inconsistent testimony at trial and the witness's convenient memory lapses about the portions of the witness's conversation with the police that implicated the defendant, the witness's earlier statements were not hearsay but rather were properly admitted as prior inconsistent statements as the witness was given an opportunity to explain or deny the witness's prior inconsistent statements to the police, and the defendant had the opportunity to cross-examine the witness about those statements. Thompson v. State, 304 Ga. 146, 816 S.E.2d 646 (2018).
Trial court did not err in admitting the defendant's mother's prior statement to police concerning the defendant's involvement in another robbery because the state sought to introduce the mother's recorded statement in which the mother volunteered certain incriminating information about the defendant's role in the other robbery in direct response to the mother's testimony at trial, in which the mother alleged the statements were not true and the mother had been coerced into making the statements by police. Leslie v. State, 355 Ga. App. 244, 842 S.E.2d 550 (2020).
Testimony as to identification.
- Trial court's exclusion of testimony from one of the investigating officers that one person had failed to identify the defendant from a photographic line-up was proper because it was clear that the individual in question was not going to be called to testify; thus, the trial court properly sustained the state's hearsay objection to the detective's testimony. Dailey v. State, 297 Ga. 442, 774 S.E.2d 672 (2015).
Counsel not ineffective for failing to object to testimony.
- Trial counsel was not ineffective for failing to object to the detective's testimony regarding the mother's statements that the mother knew that the defendant killed the child because the testimony was cumulative of properly admitted evidence already presented to the jury regarding the mother accusing the defendant of killing the child as both the paramedic and the social worker had already testified to the mother accusing the defendant of killing the child when the mother found out the child was deceased, and the defendant's subsequent reaction to the mother's accusation. Sawyer v. State, 308 Ga. 375, 839 S.E.2d 582 (2020).
Failure to preserve issue for appeal.
- Defendant's claim that the trial court erred in permitting into evidence three instances of inaccurate and prejudicial hearsay testimony that the defendant was involved in two murders were not properly reviewed on appeal because the defendant did not make any contemporaneous objection to the cited testimony on the basis of hearsay or otherwise. Bailey v. State, 291 Ga. 144, 728 S.E.2d 214 (2012) (decided under former O.C.G.A. § 24-3-5).
Appellant never argued at trial that the statements at issue were admissible to impeach the witness's hearsay statements to the witness's friend (which would have allowed the jury to consider them only to impeach the witness as a hearsay declarant), nor did the appellant argue that the witness's plea bargain was admissible to impeach the witness's statements to the friend. Accordingly, the appellant forfeited review of this claim. Cross v. State, Ga. , S.E.2d (Sept. 8, 2020)(decided under former O.C.G.A. § 24-3-5).
Cited in Thompson v. State, 320 Ga. App. 150, 739 S.E.2d 434 (2013); Ryans v. State, 293 Ga. 238, 744 S.E.2d 759 (2013); Carter v. State, 324 Ga. App. 118, 749 S.E.2d 404 (2013); McNair v. State, 330 Ga. App. 478, 767 S.E.2d 290 (2014); Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015); Graham v. State, 331 Ga. App. 36, 769 S.E.2d 753 (2015); Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798, 775 S.E.2d 172 (2015); Chase v. State, 337 Ga. App. 449, 787 S.E.2d 802 (2016); Taylor v. State, 337 Ga. App. 486, 788 S.E.2d 97 (2016); Morales v. State, 337 Ga. App. 614, 788 S.E.2d 535 (2016); Allen v. State, 300 Ga. 500, 796 S.E.2d 708 (2017); Tran v. State, 340 Ga. App. 546, 798 S.E.2d 71 (2017); Franklin v. Pitts, 349 Ga. App. 544, 826 S.E.2d 427 (2019); State v. Orr, 350 Ga. App. 474, 829 S.E.2d 632 (2019); Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019); Bullard v. State, 307 Ga. 482, 837 S.E.2d 348 (2019).
Admissibility
1. In General
Trial court must be vested with considerable discretion in determining admissibility of testimony of collateral matters. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968) (decided under former Code 1933, § 38-302).
Hearsay when admissible derives its competency from necessity of case. Todd v. State, 200 Ga. 582, 37 S.E.2d 779 (1946) (decided under former Code 1933, § 38-302); Price v. Whitley Constr. Co., 91 Ga. App. 257, 85 S.E.2d 528 (1954);(decided under former Code 1933, § 38-302).
When evidence not admissible.
- While hearsay evidence is admissible under some circumstances to show motive, it is not admissible to evidence the truth of the matters contained in the hearsay testimony. Rogers v. State, 224 Ga. 436, 162 S.E.2d 411 (1968) (decided under former Code 1933, § 38-302).
Relevancy.
- When, in a legal investigation, conduct and motives of an actor are matters concerning which the truth must be found (i.e., are relevant to issues on trial), then information, conversations, letters, and replies, and similar evidence known to the actor are admissible to explain the actor's conduct; but if conduct and motives of actor are not matters concerning which the truth must be found (i.e., are irrelevant to the issues of trial) then the information, etc., on which the actor acted shall not be admissible under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801). Momon v. State, 249 Ga. 865, 294 S.E.2d 482 (1982) (decided under former O.C.G.A. § 24-3-2); Teague v. State, 252 Ga. 534, 314 S.E.2d 910 (1984); Bryant v. Carver State Bank, 207 Ga. App. 659, 428 S.E.2d 621 (1993) (decided under former O.C.G.A. § 24-3-2); Jackson v. Dunkin' Donuts, Inc., 211 Ga. App. 596, 440 S.E.2d 56 (1994);(decided under former O.C.G.A. § 24-3-2);(decided under former O.C.G.A. § 24-3-2).
Admissibility of evidence under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) is not a determination based only on the evidence's relevancy to explain conduct: the conduct to be explained must itself be a relevant issue in the case. Noles v. State, 172 Ga. App. 228, 322 S.E.2d 910 (1984) (decided under former O.C.G.A. § 24-3-2).
When testimony regarding whether any of the plaintiff's healthcare providers had instructed plaintiff not to work after plaintiff's injuries was offered to explain why plaintiff did not return to work, it was relevant to whether plaintiff's lost income was attributable to plaintiff's injuries, and therefore admissible as original evidence, not hearsay. Harrison v. Jenkins, 235 Ga. App. 665, 510 S.E.2d 345 (1998) (decided under former O.C.G.A. § 24-3-2).
Trial court did not abuse the court's discretion in excluding a letter offered as evidence by the defendant as the appeals court could not see how the defendant's reliance on the letter could have justified or explained the defendant's evasiveness towards an officer lawfully investigating a loud noise complaint at the defendant's residence. Williams v. State, 289 Ga. App. 402, 657 S.E.2d 556 (2008) (decided under former O.C.G.A. § 24-3-2).
Prior inconsistent statement of detective.
- In a claim that the employer procured the employee's false imprisonment when the employee was arrested by a detective, although the employee offered the employee's report of the detective's question to a loss prevention officer for the employer about what to do with the employee after the employee arrived at the police station to show the truth of the matter asserted - that was, that the employer had some substantial control over the police investigation - the detective's question as reported by the employee was admissible at trial as an inconsistent statement made prior to the detective's later testimony that the detective never asked the question at all. Smith v. Wal-Mart Stores East, LP, 330 Ga. App. 340, 765 S.E.2d 518 (2014).
Testimony from narcotics investigator.
- Defendant's counsel was not ineffective for failing to object to hearsay evidence because the testimony of the narcotics investigator concerning the statements the defendant made to the narcotics investigator about the information on a phone would be admissible as an admission by a party opponent; and the evidence was merely cumulative of properly admitted evidence. Hill v. State, 351 Ga. App. 58, 830 S.E.2d 478 (2019).
Explanation of officer's motive.
- Defendant was not entitled to present testimony under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) of an investigating officer, which indicated that an acquaintance of the victim said that the acquaintance was not present at the scene of the crime but that a third person told the acquaintance what happened, to explain the officer's conduct and motives with regard to the officer's lack of further investigation into potentially exculpatory evidence as the motives of the officer were not relevant to any issue in the defendant's prosecution for felony murder based on arson in the first degree. Vega v. State, 285 Ga. 32, 673 S.E.2d 223 (2009) (decided under former O.C.G.A. § 24-3-2).
What would otherwise be hearsay testimony was properly elicited by the state to explain a narcotics investigator's conduct and to ascertain the investigator's motives because the defendant was challenging the motives of the narcotics investigator and arguing that the investigator was not acting in good faith as part of defendant's entrapment defense. Martinez v. State, 303 Ga. App. 166, 692 S.E.2d 766 (2010) (decided under former O.C.G.A. § 24-3-2).
Testimony admissible to explain conduct. See Athena Prods., Ltd. v. Geographics, Inc., 168 Ga. App. 828, 310 S.E.2d 547 (1983) (decided under former O.C.G.A. § 24-3-2); Thomas v. State, 169 Ga. App. 119, 312 S.E.2d 373 (1983);(decided under former O.C.G.A. § 24-3-2).
In a sexual molestation case, testimony that the victim's grandmother had learned in the past that the victim's aunt had been sexually molested was not hearsay since the testimony was not used to establish the truth of the matter asserted, that the aunt had been sexually molested, but was offered to show that the grandmother had a history of tolerating the sexual abuse of young children. Walker v. State, 308 Ga. App. 176, 707 S.E.2d 122 (2011) (decided under former O.C.G.A. § 24-3-2).
Because an individual's statement to the state's key witness that the defendant had been looking for the witness on the night of the shooting coupled with the neighbor's statement that the neighbor had seen the defendant running away after the shooting led the witness to decide that the witness should leave immediately as the witness was likely the defendant's target, and because the trial court instructed the jury that the statement was being allowed in not because of the fact the statement might be true, but to explain the witness's conduct of leaving the scene, the trial court did not abuse the court's discretion in admitting the neighbor's statement to explain the witness's reason for leaving. Gomillion v. State, 298 Ga. 505, 783 S.E.2d 103 (2016), cert. denied, 137 S. Ct. 302, 196 L. Ed. 2d 223 (U.S. 2016)(decided under former O.C.G.A. § 24-3-2).
Testimony admitted for limited purpose of explaining witness's conduct.
- See Davis v. State, 168 Ga. App. 272, 308 S.E.2d 602 (1983) (decided under former O.C.G.A. § 24-3-2); Hampton v. State, 272 Ga. 284, 527 S.E.2d 872 (2000);(decided under former O.C.G.A. § 24-3-2).
Family statements were prior consistent statement.
- Defendant's trial counsel was not ineffective as counsel did not perform deficiently by failing to object on the grounds of hearsay and improper bolstering when two witnesses testified that the co-defendant told them within days of the shooting that the defendant shot the victim because the co-defendant's statements to the co-defendant's sister and to the mother of the co-defendant's two children were prior consistent statements, not hearsay, and were admissible to rehabilitate, rather than improperly bolster, the co-defendant's credibility. Brown v. State, 302 Ga. 454, 807 S.E.2d 369 (2017).
Trial counsel was not ineffective for failing to object to hearsay testimony because a witness's testimony that the mother told the witness about the fight with the defendant before the child's death rebutted the attack made by trial counsel on the mother's credibility, and the statements were therefore prior consistent statements, not hearsay. Sawyer v. State, 308 Ga. 375, 839 S.E.2d 582 (2020).
2. Evidence Not Hearsay.
Admission of mother's comments about paying victim.
- Because statements by the defendant's brother about their mother's offer to pay the victim to tell the police that the brothers were not involved in the assault was nonhearsay, the trial court did not err in admitting the testimony over the defendant's objection. Brown v. State, 332 Ga. App. 635, 774 S.E.2d 708 (2015).
Evidence not offered to prove truth of matter asserted.
- In a vehicle collision that resulted in the death of the plaintiffs' four-year-old child, the trial court did not abuse the court's discretion in admitting evidence of the National Highway Traffic Safety Administration Office of Defect Investigation's recall request letter because, inter alia, the recall request letter was offered, at least in part, not for the substance of the finding of defect, but to support an inference that a meeting between the defendant's chief executive officer with the head of the National Highway Traffic Safety Administration and the Secretary of the U.S. Department of Transportation led the Office of Defect Investigation (ODI) to change the opinion regarding the defect to that expressed in the ODI resume. Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 792 S.E.2d 754 (2016), aff'd, 303 Ga. 358, 812 S.E.2d 244 (2018).
Fact that a statement may be properly admitted under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) does not overcome other objections such as impermissibly placing character in evidence. Echols v. State, 174 Ga. App. 829, 331 S.E.2d 619 (1985) (decided under former O.C.G.A. § 24-3-2).
Admission of cumulative hearsay testimony is not harmful error.
- Although certain portions of a police officer's testimony were erroneously admitted as being within the purview of former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801), when the hearsay testimony is merely cumulative, the admission of the testimony does not constitute harmful error requiring the reversal of the defendant's convictions. Simmons v. State, 174 Ga. App. 906, 331 S.E.2d 923 (1985) (decided under former O.C.G.A. § 24-3-2).
Trial court did not abuse its discretion in allowing a witness to testify about the victim's statement regarding threats the victim received a few days before the shooting as the requirements of the necessity exception to the hearsay rule were met; the victim was deceased and unavailable to testify, the witness testified that the victim and the witness were friends, and the defendant identified no alternative source of the information revealed in the statement. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-1).
Admission of statement made after crime not hearsay.
- Trial court did not abuse the court's discretion by admitting statements that the victim allegedly made to the victim's niece, who discovered the victim on the morning after the beating, as exceptions to the rule against hearsay as present sense impressions, excited utterances, and to impeach the niece's trial testimony as, under the totality of the circumstances, the victim was still suffering under the stress of the all-night beating such that the victim's statements were admissible. Robbins v. State, 300 Ga. 387, 793 S.E.2d 62 (2016).
Prior inconsistent statement by testifying detective.
- Both the defendant's trial and appellate counsel rendered ineffective assistance in failing to call a detective to testify that, contrary to the testimony another detective gave at trial, the testifying detective stated that the defendant had mentioned the defendant's alibi in the defendant's first post-arrest interview; a habeas court erred in denying the defendant's petition. Cartwright v. Caldwell, 305 Ga. 371, 825 S.E.2d 168 (2019).
3. Original Evidence
Proof of statements that are merely part of surrounding circumstances of an occurrence, not offered to prove the fact asserted in the statement, is original evidence, not an exception to hearsay. Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 160 S.E.2d 414 (1968) (decided under former Code 1933, § 38-302).
Because the circumstances of the defendant's arrest would have been virtually inexplicable without the investigating officer's testimony regarding the arrest, and the officer's testimony concerned narcotics activity in the area and not the defendant's role in the activity, admission of the testimony was not erroneous, and if any error resulted by the trial court's admission, it was highly improbable that the error contributed to the verdict. Fortson v. State, 283 Ga. App. 120, 640 S.E.2d 693 (2006) (decided under former O.C.G.A. § 24-3-2).
When evidence is part of res gestae and admissible as original evidence to fix the locus or explain the conduct of parties in reference to an occurrence under investigation it should not be excluded under the hearsay rule. Ellis v. Southern Ry., 96 Ga. App. 687, 101 S.E.2d 230 (1957) (decided under former Code 1933, § 38-302).
Evidence of a victim's statement to the police, although not properly admitted as a prior inconsistent statement due to the failure to lay a proper foundation under former O.C.G.A. § 24-9-83 (see now O.C.G.A. § 24-6-613), was properly admitted as part of the res gestae under former O.C.G.A. § 24-3-3 (see now O.C.G.A. § 24-8-803) because the victim's description of a distinctive jacket worn by one of the individuals who took a pickup truck was used by the police to search the defendant's residence; because the statement was used to explain the police's conduct, it could also be admitted as original evidence under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801). Stubbs v. State, 293 Ga. App. 692, 667 S.E.2d 905 (2008) (decided under former O.C.G.A. § 24-3-2).
Fact within witness's personal knowledge.
- Questions to a witness as to whether witness had been indicted by a grand jury for the shooting for which defendant was being tried and whether the grand jury had declined to indict witness did not elicit hearsay because the questions asked for facts that were within the witness's personal knowledge. Bell v. State, 294 Ga. 443, 754 S.E.2d 327 (2014).
Testimony as to identification.
- Testimony by police officer that another officer in the officer's unit knew defendant by a nickname was not hearsay but was original evidence explaining the circumstances that led to an undercover operation involving defendant. Kendrick v. State, 224 Ga. App. 72, 479 S.E.2d 464 (1996) (decided under former O.C.G.A. § 24-3-2).
Even if one officer's testimony that a witness identified the defendant as the person who had burglarized the shop where the witness worked six days earlier was hearsay under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801), it was admissible, as the witness testified and was cross-examined about the identification of the defendant as the shop's burglar. Williams v. State, 327 Ga. App. 283, 758 S.E.2d 620 (2014)(decided under former O.C.G.A. § 24-3-2).
Method of proving general reputation, reputed ownership, public rumor, general notoriety, and the like is by testimony of known facts which becomes original evidence and is not hearsay. Caldwell v. Gregory, 120 Ga. App. 536, 171 S.E.2d 571 (1969) (decided under former Code 1933, § 38-302).
For purpose of identifying location of time or as explanatory of conduct, hearsay is admissible. Ellis v. Southern Ry., 96 Ga. App. 687, 101 S.E.2d 230 (1957) (decided under former Code 1933, § 38-302).
Conduct of investigating officers.
- In a trial for keeping a place of prostitution, in violation of O.C.G.A. § 16-6-10, a search warrant affidavit, which contained hearsay statements from a neighborhood group purportedly linking defendant's residence to prostitution, was not admissible as original evidence to explain to the jury why the officers were investigating defendant's residence. Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (2012) (decided under former O.C.G.A. § 24-3-2).
Text message offered to show defendant's motive.
- Text message that a victim sent the defendant's girlfriend, along with naked pictures of the victim, that, "yu eva lonely yu can call me;))))," was not hearsay because the text message was not offered to prove that the defendant's girlfriend could in fact call if she were lonely, but to show the message's effect on the defendant and the defendant's motive for committing the murder. Gates v. State, 298 Ga. 324, 781 S.E.2d 772 (2016).
Hearsay issue critical in medical malpractice case.
- In a medical malpractice case, the trial court committed reversible error by finding that the patient waived a hearsay objection as to a defense pathologist's deposition testimony because the patient had the right to object to the testimony at trial and the testimony was inadmissible hearsay entitling the patient to a new trial since it was not harmless error in that it was critical in the case because the evidence directly addressed the core disputed issue of whether the clinic's neurosurgeon left an excessive amount of cotton in the patient's brain. Thomas v. Emory Clinic, Inc., 321 Ga. App. 457, 739 S.E.2d 138 (2013).
4. Self-Serving Declarations
Taint of self-serving declarations not removed by former statute.
- Former statute provided for the admissibility of certain types of hearsay evidence, in certain situations, and did not remove the taint of self-serving declarations. Smith v. State, 144 Ga. App. 294, 241 S.E.2d 14 (1977) (decided under former Code 1933, § 38-302).
Self-serving declarations are admissible if part of conversation.
- Hearsay rule as to self-serving declarations does not apply when: (1) made in the presence of the opposite party; or (2) the declaration are part of a conversation of which some other part has already been permitted in evidence. Rozier v. State, 124 Ga. App. 481, 184 S.E.2d 203 (1971) (decided under former Code 1933, § 38-302).
Inadmissible self-serving declarations.
- Self-serving declarations, when made by the accused either before or after the time of the commission of the alleged offense, are not admissible. Phipps v. State, 203 Ga. App. 128, 416 S.E.2d 319, cert. denied, 203 Ga. App. 907, 416 S.E.2d 319 (1992) (decided under former O.C.G.A. § 24-3-2).
Unsupported assertions of defendant utilizing justification defense.
- Court of appeals erred in reversing the trial court's order refusing to allow the defendant to testify about a previous incident of violence the victim allegedly committed against third parties in support of a justification defense under O.C.G.A. § 16-3-21(a) because the defendant sought to introduce alleged evidence in the form of unsupported assertions by the defendant as to what was in the defendant's mind at the time the defendant killed the victim. State v. Hodges, 291 Ga. 413, 728 S.E.2d 582 (2012) (decided under former O.C.G.A. § 24-3-2).
5. Evidentiary Value
Evidentiary value of testimony admitted depends not on the credibility of the out-of-court declarant, but on the credibility of the witness on the stand who is reporting the statement for the purpose of explaining the witness's conduct and who is under oath, subject to full cross-examination, and present for the jury to observe the witness's demeanor while testifying in regard to the statement. Harrell v. State, 241 Ga. 181, 243 S.E.2d 890 (1978) (decided under former Code 1933, § 38-302).
Investigator's testimony not original evidence of alibi.
- Investigator's testimony that defendant gave a purported alibi was not original evidence as to the fact of alibi and insofar as the testimony established the fact of alibi, the evidence did not derive any value from the witness, but derived value solely on the veracity and competency of the defendant who never testified. Therefore, although such evidence was not hearsay, it nevertheless did not qualify as even "slight" evidence of an affirmative defense so as to require a charge on alibi. Hartley v. State, 207 Ga. App. 683, 428 S.E.2d 683 (1993) (decided under former O.C.G.A. § 24-3-2).
Investigator's testimony did not bolster.
- Trial court did not err in admitting testimony by the investigator because even though the state relied heavily on the co-defendant's testimony, the investigator's testimony did not give critical weight to that testimony and there was other evidence linking the defendant to the two burglaries. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).
Unredacted recording of a telephone conversation.
- Trial court committed harmful error when the court prevented the defendant from playing to the jury an unredacted recording of a phone conversation between a witness and a friend because the witness was essentially acting as an informant, or at least an agent of police investigators, at the time of the phone conversation, and thus, the witness's recorded statements were admissible as original evidence pursuant to former O.C.G.A. § 24-3-2; the exclusion of the evidence was not harmless because there was no physical evidence tying the defendant to the crime or the murder weapon. Redinburg v. State, 315 Ga. App. 413, 727 S.E.2d 201 (2012) (decided under former O.C.G.A. § 24-3-2).
Appellant's affidavit not subject to Confrontation Clause.
- Counsel did not perform deficiently by not making an objection to the affidavit of the appellant because the affidavit, written by the appellant, was hearsay, but it was nevertheless admissible as an admission by a party-opponent and such an admission by a defendant generally was not subject to the Confrontation Clause. Reed v. State, 307 Ga. 527, 837 S.E.2d 272 (2019).
Admissions and Confessions
1. Admissions and Confessions Distinguished
a. In General
No clear dividing line.
- Admissions may be of such character as to render it difficult to say whether the admissions amount to confessions or to mere incriminating statements. The dividing line is not always clear, though the legal distinction is apparent. Covington v. State, 79 Ga. 687, 7 S.E. 153 (1887) (decided under former Code 1882, § 3783); Weaver v. State, 135 Ga. 317, 69 S.E. 488 (1910);(decided under former Penal Code 1895, § 1002).
Terms "admissions" and "confessions" are interchangeable and the probative value of a declaration that the defendant did the main fact charged is the same whether called a confession or an admission. Lumpkin v. American Sur. Co., 69 Ga. App. 887, 27 S.E.2d 412 (1943) (decided under former Code 1933, § 38-401).
Inference of guilt.
- A confession is direct evidence of guilt, while an admission is circumstantial evidence from which guilt can be inferred. Riley v. State, 1 Ga. App. 651, 57 S.E. 1031 (1907) (decided under former Penal Code 1895, § 1002); Thomas v. State, 18 Ga. App. 101, 88 S.E. 917 (1916); Kinard v. State, 19 Ga. App. 624, 91 S.E. 941 (1917) (decided under former Penal Code 1910, § 1028); Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972);(decided under former Penal Code 1910, § 1028);(decided under former Code 1933, § 38-401).
Effect of admission of main fact.
- An admission of the main fact, from which the essential elements of the criminal act may be inferred, amounts to an admission of the crime itself. Powers v. State, 172 Ga. 1, 157 S.E. 195 (1931) (decided under former Penal Code 1910, § 1028); Secrist v. State, 145 Ga. App. 391, 243 S.E.2d 599; 242 Ga. 69, 248 S.E.2d 157 (1978), cert. dismissed,(decided under former Code 1933, § 38-401).
If a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. Chappell v. State, 71 Ga. App. 147, 30 S.E.2d 289 (1944) (decided under former Code 1933, § 38-401); Braswell v. State, 87 Ga. App. 430, 74 S.E.2d 106 (1953);(decided under former Code 1933, § 38-401).
b. Admissions
An admission in the law of evidence is a statement by a party of the existence of a fact which is relevant to the cause of the party's adversary. Brooks v. Sessoms, 47 Ga. App. 554, 171 S.E. 222 (1933) (decided under former Code 1933, § 38-401).
An admission, as applied to a criminal case, is the statement by the defendant of a fact or facts pertinent to the issues, and tending, in connection with proof of other facts or circumstances, to prove the guilt of the accused, but which is of itself insufficient to authorize conviction. Ranson v. State, 2 Ga. App. 826, 59 S.E. 101 (1907) (decided under former Penal Code 1895, § 1002); Easterling v. State, 24 Ga. App. 424, 100 S.E. 727 (1919); Morris v. State, 176 Ga. 243, 167 S.E. 509 (1933) (decided under former Penal Code 1910, § 1028); Teague v. State, 48 Ga. App. 225, 172 S.E. 571 (1934); Roberts v. State, 59 Ga. App. 192, 200 S.E. 233 (1938) (decided under former Code 1933, § 38-401); Timbs v. State, 71 Ga. App. 141, 30 S.E.2d 290 (1944); Braswell v. State, 87 Ga. App. 430, 74 S.E.2d 106 (1953) (decided under former Code 1933, § 38-401); Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972); Pendergrass v. State, 245 Ga. 626, 266 S.E.2d 225 (1980) (decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401).
An admission is to be scanned with care, but it is evidence which, with other evidence, may and often does justify a conviction. Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972) (decided under former Code 1933, § 38-401).
An admission of a fact not in itself involving criminal intent is not a confession. Carter v. State, 90 Ga. App. 61, 81 S.E.2d 868 (1954) (decided under former Code 1933, § 38-401).
Statements as to prior wrongs relevant to crimes committed.
- Trial court properly admitted certain statements made by the defendant during telephone conversations while in custody at a jail because while the statements related to a prior wrong or act which would generally be irrelevant character evidence, the statements indicated the defendant's disdain for law enforcement intervention and a desire to seek revenge; thus, the statements were relevant to show motive and intent in committing the crimes. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016).
c. Confessions
Confession defined.
- A confession is a voluntary statement made by a person charged with the commission of a crime, wherein the person acknowledges personally to be guilty of the offense charged. Owens v. State, 120 Ga. 296, 48 S.E. 21 (1904) (decided under former Penal Code 1895, § 1002); Ranson v. State, 2 Ga. App. 826, 59 S.E. 101 (1907); Reed v. State, 15 Ga. App. 435, 83 S.E. 674 (1914) (decided under former Penal Code 1895, § 1002); Easterling v. State, 24 Ga. App. 424, 100 S.E. 727 (1919); Teague v. State, 48 Ga. App. 225, 172 S.E. 571 (1934) (decided under former Penal Code 1910, § 1028); Grubbs v. State, 53 Ga. App. 377, 186 S.E. 140 (1936); Braswell v. State, 87 Ga. App. 430, 74 S.E.2d 106 (1953) (decided under former Penal Code 1910, § 1028); Carter v. State, 90 Ga. App. 61, 81 S.E.2d 868 (1954); Reece v. State, 212 Ga. 609, 94 S.E.2d 723 (1956) (decided under former Code 1933, § 38-401); Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401).
Confession is rather a fact to be proved by evidence, than evidence to prove a fact. Powers v. State, 172 Ga. 1, 157 S.E. 195 (1931) (decided under former Penal Code 1910, § 1028).
Waiver of technical proof.
- Confession is not so much proof that a particular thing took place as it is a waiver by the party charged of the party's right to have certain facts alleged against that party technically proven. Powers v. State, 172 Ga. 1, 157 S.E. 195 (1931) (decided under former Penal Code 1910, § 1028).
Entire criminal act must be confessed to find a confession. Owens v. State, 120 Ga. 296, 48 S.E. 21 (1904) (decided under former Penal Code 1895, § 1002); Goolsby v. State, 133 Ga. 427, 66 S.E. 159 (1909); Hart v. State, 14 Ga. App. 714, 82 S.E. 164 (1914) (decided under former Penal Code 1895, § 1002); Neal v. State, 24 Ga. App. 148, 100 S.E. 12 (1919); 24 Ga. App. 817 (1920) (decided under former Penal Code 1910, § 1028); Powers v. State, 172 Ga. 1, 157 S.E. 195 (1931); Carter v. State, 90 Ga. App. 61, 81 S.E.2d 868 (1954), cert. denied,(decided under former Penal Code 1910, § 1028);(decided under former Penal Code 1910, § 1028);(decided under former Code 1933, § 38-401).
True determinant of whether the defendant has made a confession or merely has given a statement is whether the statement is offered by the accused as exculpatory or inculpatory. Kennedy v. State, 156 Ga. App. 792, 275 S.E.2d 339 (1980) (decided under former Code 1933, § 38-401); Wells v. State, 247 Ga. 792, 279 S.E.2d 213 (1981);(decided under former Code 1933, § 38-401).
Justification not confession.
- Statement which admits the commission of an act, but which also gives legal excuse or justification, is not a confession. Owens v. State, 120 Ga. 296, 48 S.E. 21 (1904) (decided under former Penal Code 1895, § 1002); Reed v. State, 15 Ga. App. 435, 83 S.E. 674 (1914); Powers v. State, 172 Ga. 1, 157 S.E. 195 (1931) (decided under former Penal Code 1910, § 1028); Logue v. State, 149 Ga. App. 797, 256 S.E.2d 31 (1979); Kennedy v. State, 156 Ga. App. 792, 275 S.E.2d 339 (1980) (decided under former Penal Code 1910, § 1028); Wells v. State, 247 Ga. 792, 279 S.E.2d 213 (1981);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former O.C.G.A. § 24-3-15).
Incriminating statements distinguished.
- There is a difference between an incriminating statement and a confession of guilt, since in the former only one or more facts entering into the criminal act is admitted, while in the latter the entire criminal act is confessed. Owens v. State, 120 Ga. 296, 48 S.E. 21 (1904) (decided under former Penal Code 1895, § 1002); Goolsby v. State, 133 Ga. 427, 66 S.E. 159 (1909); Powers v. State, 172 Ga. 1, 157 S.E. 195 (1931) (decided under former Penal Code 1895, § 1002); Cumberlander v. State, 53 Ga. App. 276, 185 S.E. 379 (1936); Carter v. State, 90 Ga. App. 61, 81 S.E.2d 868 (1954) (decided under former Penal Code 1910, § 1028); Logue v. State, 149 Ga. App. 797, 256 S.E.2d 31 (1979);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401).
Testimony of arresting officer as to statements made to the officer by a cab driver, in the presence of the accused, regarding the activities of the accused, while a passenger during the night after the crime was committed, was hearsay, not being original evidence, nor an exception to the hearsay rule. Rosborough v. State, 209 Ga. 362, 72 S.E.2d 717 (1952) (decided under former Code 1933, § 38-302).
d. Guilty Pleas
Confessions distinguished.
- Plea of guilty differs from a full and voluntary confession in that while the latter is merely evidence of guilt, the former is a formal confession before the court on which judgment may be rendered. Lumpkin v. American Sur. Co., 69 Ga. App. 887, 27 S.E.2d 412 (1943) (decided under former Code 1933, § 38-401).
Use in civil actions.
- Plea of guilty in a federal court is competent as an admission in a civil action in a state court. Lumpkin v. American Sur. Co., 69 Ga. App. 887, 27 S.E.2d 412 (1943) (decided under former Code 1933, § 38-401).
When a civil action was instituted for damages on the grounds of negligence for the violation of penal ordinances or statutes, and the defendant had previously confessed or pleaded guilty to the violation of such penal statutes whether it was in or out of court, these confessions were competent evidence as admissions against the defendant in the civil action with reference to the same transaction; and on cross-examination it was competent for the opposite party to inquire of the defendant if the defendant made such confessions. Because the defendant admitted in the civil action having made such confessions, it was unnecessary to produce an authenticated copy of the proceedings in the criminal case and such admissions were considered in determining the civil action. Roper v. Scott, 77 Ga. App. 120, 48 S.E.2d 118 (1948) (decided under former Code 1933, § 38-401).
e. Instructions
Failure to charge on a confession, in the absence of a request, is no cause for a new trial. Wilson v. State, 74 Ga. App. 42, 38 S.E.2d 750 (1946) (decided under former Code 1933, § 38-401).
Reversible error.
- If a defendant has made only incriminating statements and not a confession, it is reversible error to charge the law of confession. Logue v. State, 149 Ga. App. 797, 256 S.E.2d 31 (1979) (decided under former Code 1933, § 38-401).
Proper instruction.
- Charge that "admissions usually refer to civil cases and confessions to criminal cases, all admissions should be scanned with care, and confessions of guilt received with great caution," was not confusing and misleading to the jury and unsound as an abstract principle of law. Reece v. State, 212 Ga. 609, 94 S.E.2d 723 (1956) (decided under former Code 1933, § 38-401).
Evidence sufficient to authorize instructions on law of confessions in the following cases.
- See Harris v. State, 207 Ga. 287, 61 S.E.2d 135 (1950) (decided under former Code 1933, § 38-401); Patrick v. State, 209 Ga. 645, 74 S.E.2d 848 (1953); Reece v. State, 212 Ga. 609, 94 S.E.2d 723 (1956) (decided under former Code 1933, § 38-401); Kennedy v. State, 156 Ga. App. 792, 275 S.E.2d 339 (1980);(decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401).
Evidence sufficient to authorize instructions on law of admissions in the following case.
- See Morris v. State, 176 Ga. 243, 167 S.E. 509 (1933) (decided under former Code 1933, § 38-401).
Evidence insufficient to authorize instructions in the following cases.
- See Reed v. State, 15 Ga. App. 435, 83 S.E. 674 (1914) (decided under former Penal Code 1910, § 1028); Chappell v. State, 71 Ga. App. 147, 30 S.E.2d 289 (1944); Braswell v. State, 87 Ga. App. 430, 74 S.E.2d 106 (1953) (decided under former Code 1933, § 38-401);(decided under former Code 1933, § 38-401).
2. Admissions of Parties to Record
a. In General
Nature of evidence.
- Admissions by parties as to a matter relevant to the case on trial are not to be regarded as inferior evidence, but when satisfactorily proven they constitute grounds of belief on which the mind justly reposes with strong confidence. Mayo v. Owen, 208 Ga. 483, 67 S.E.2d 709 (1951) (decided under former Code 1933, § 38-403).
Admission in judicio.
- Claimant's admissions in judicio against the claimant's own interests were binding upon the claimant since a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion. Piedmont Aviation, Inc. v. Washington, 181 Ga. App. 730, 353 S.E.2d 847 (1987) (decided under former O.C.G.A. § 24-3-31).
Admissions in judicio as to matters of fact against one party's interest are binding on another party when the interests of the two are joint but not when their interests are adverse. Batchelor v. State Farm Mut. Auto. Ins. Co., 240 Ga. App. 366, 526 S.E.2d 68 (1999) (decided under former O.C.G.A. § 24-3-31).
Personal knowledge not required.
- To be admissible in evidence, admissions do not necessarily have to be founded on the personal knowledge of the party making the admissions. Brooks v. Sessoms, 47 Ga. App. 554, 171 S.E. 222 (1933) (decided under former Code 1933, § 38-403).
Admissions do not come in, on the ground that the party making the admissions is speaking from the party's personal knowledge, but upon the ground that a party will not make admissions against oneself unless the admissions are true; the fact that the party makes the admissions against the party's interest can be reasonably explained only on the supposition that the party is constrained to do so by the force of the evidence. Mayo v. Owen, 208 Ga. 483, 67 S.E.2d 709 (1951) (decided under former Code 1933, § 38-403).
What party told third party admissible.
- Defendant's proffered testimony about the details of a conversation with an individual, who claimed to be good friends with the property owners and who told the defendant that the owners had said anyone was welcome to what was left on the property, was not hearsay because the testimony was offered to prove what the individual told the defendant, not what the property owners told the individual. Lynn v. State, 345 Ga. App. 258, 812 S.E.2d 786 (2018)(decided under former O.C.G.A. § 24-3-1).
Murder defendant's statements in confrontations with victim's mother.
- In the murder trial of the defendants, husband and wife, for the killing of a 13-month-old girl, the wife's statements to the child's mother regarding the child's death were admissions by a party-opponent under O.C.G.A. § 24-8-801(d)(2)(A), and their physical confrontations were indicative of the feelings between the mother and the wife under O.C.G.A. § 24-6-622. Virger v. State, 305 Ga. 281, 824 S.E.2d 346 (2019).
Prior admissions of a party to an action may be offered in evidence although not against interest when made and, if believed by the jury, may be considered as substantive evidence of the fact sought to be proved. W.T. Harvey Lumber Co. v. J.M. Wells Lumber Co., 104 Ga. App. 498, 122 S.E.2d 143 (1961) (decided under former Code 1933, § 38-403).
Introduction of admissions contained in a stricken plea.
- Such admissions when thus made are to be taken as true, because the admissions are asserted by the party personally; and while the party may withdraw the admissions formally from the pleadings, the party cannot by a mere withdrawal avoid the effect of the admissions since the admissions may still be used as evidence against the party. Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948) (decided under former Code 1933, § 38-403).
While one may withdraw admissions formally from the pleadings, one cannot by a mere withdrawal avoid the effect of the admissions made as the admissions remain admissible into evidence. Richmond County v. Sibert, 218 Ga. 209, 126 S.E.2d 761 (1962) (decided under former Code 1933, § 38-403).
Estimates.
- An admission in the testimony of a party is not, as a matter of law, to be taken as conclusively true, when the admission is in the nature of an estimate or guess; in such case it may be overcome by evidence of the facts and circumstances which form the basis of the admission. Hansberger Motor Transp. Co. v. Pate, 51 Ga. App. 877, 181 S.E. 796 (1935) (decided under former Code 1933, § 38-403).
Charge by court.
- Court is not required to charge on the effect of admissions without a special request to that effect. Hawkins v. Kermode, 85 Ga. 116, 11 S.E. 560 (1890) (decided under former Code 1882, § 3784); Wrightsville & Tennille R.R. v. Lattimore, 118 Ga. 581, 45 S.E. 453 (1903);(decided under former Civil Code 1895, § 5189).
b. Parties
Joint parties.
- Admissions of one of two or more parties to the record are not admissible to bind the others, until a joint interest is proven by other testimony. Boswell v. Blackman, 12 Ga. 591 (1853) (decided under former law); Kirk v. Barnes, 147 Ga. App. 423, 249 S.E.2d 140 (1978);(decided under former Code 1933, § 38-403).
Because no joint interest existed between an LLC and its sole managing member, but instead the evidence showed that the two had separate and distinct positions in a lawsuit, the interest of both were not so joint and coextensive so as to justify treating the judicial admissions of the LLC as binding on the managing member. Milk v. Total Pay & HR Solutions, Inc., 280 Ga. App. 449, 634 S.E.2d 208 (2006) (decided under former O.C.G.A. § 24-3-31).
Rapist's admission to entering an apartment building through a broken gate was admissible evidence that could be used against the rapist's codefendants, a landlord and a security company, in the victim's premises liability action against the landlord and security company. The admission could be used to establish the rapist's conduct even though the conduct could not be imputed to the landlord and security company. Walker v. Aderhold Props., 303 Ga. App. 710, 694 S.E.2d 119 (2010) (decided under former O.C.G.A. § 24-3-31).
When the personal representative of a deceased person is a substantial party to a suit, the testimony of a witness as to statements made by the deceased to the witness, concerning the vital issue in the cause, adverse to the contention of such personal representative, when offered by the opposite party, the witness not being incompetent to testify, is admissible in evidence as admissions. Ferrell v. Wight, 187 Ga. 360, 200 S.E. 271 (1938) (decided under former Code 1933, § 38-403); Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963);(decided under former Code 1933, § 38-403).
Wills.
- Admission of an executor before qualification, or of a legatee, unless the sole legatee, shall not be admissible in evidence to impeach the will. To this general rule there is an exception: if the admission be in reference to the conduct or the acts of the executor or legatee personally as to some matter relevant to the issue on trial, the same will be admitted to impeach the will, although made by the executor before qualification, or by a legatee who is not the sole legatee. Brown v. Kendrick, 163 Ga. 149, 135 S.E. 721 (1926) (decided under former Civil Code 1910, § 5776).
Admissions of nominal defendant as error.
- Although the reception in evidence of the admissions of a nominal defendant was error, in view of former Civil Code 1910, §§ 5776 and 6083 (see O.C.G.A. §§ 5-5-22 and24-8-801), it will not work the grant of a new trial, since the judge below, in the exercise of the judge's discretion, refused to grant a new trial on this ground. Jenkins v. Lane, 154 Ga. 454, 115 S.E. 126 (1922) (decided under former Civil Code 1910, § 5776).
Statement of employee nurse of defendant.
- Trial court did not abuse the court's discretion in admitting the testimony of the plaintiff's daughter over the defendant's objection as an admission by a party opponent because the statement was made by a nurse employed by the defendant and was relevant to the slip and fall case. Emory Healthcare, Inc. v. Pardue, 328 Ga. App. 664, 760 S.E.2d 674 (2014).
When admission by person not party to action is admissible.
- Rule, as to parties to a suit is that a plea of guilty may be shown as an admission against interest; admissions by persons not a party to an action, however, are admissible in evidence only when the party making the admission is the real party in interest, although not a party to the record, or when a party to the record refers another to such third party for information, or when there is an admission by a third person against that person's interest as to a fact collateral to the main issue between the litigants but essential to the adjudication of the cause. Cobb v. Garner, 158 Ga. App. 110, 279 S.E.2d 280 (1981) (decided under former Code 1933, § 38-403).
Owner's statement on marshlands boundary.
- In a dispute between the owner of riverfront property and the Coastal Resources Division (CRD) of the Department of Natural Resources, the owner did not waive the owner's argument that the CRD had improperly placed a marshlands boundary in 2008 because the owner's conduct in building a non-compliant bulkhead and attempting to get an after-the-fact permit was consistent with the owner's statement that the 2008 boundary was incorrect. C&M Enters. of Ga., LLC v. Williams, 346 Ga. App. 79, 816 S.E.2d 44 (2018), cert. denied, No. S18C1407, 2019 Ga. LEXIS 52 (Ga. 2019).
c. Defendants in Execution in Claim Cases
Term "litigation," as employed in statute, is not confined merely to the determination of a possible issue which may arise after levy, between the plaintiff in fi. fa. and some possible claimant, but the term includes also the previous suit in which the fi. fa. had its origin. Smith v. Johnson, 13 Ga. App. 837, 80 S.E. 1051 (1913) (decided under former Civil Code 1910, § 5776).
Not relevant to competency.
- Provision upon the subject of the admissibility of admissions of defendants in fi. fa. in claim cases has no reference to the competency of a defendant in fi. fa. as a witness in the trial of such a case, and would be no authority for excluding one's testimony on objection of the plaintiff in fi. fa. when offered by the claimant. Cornelia Bank v. Taylor, 37 Ga. App. 538, 140 S.E. 901 (1927) (decided under former Civil Code 1910, § 5776).
Admissions before litigation pending.
- Admissions of a defendant in execution against the defendant's interest, before the pendency of litigation, are admissible in evidence in favor of either the claimant or the plaintiff in execution. Smith v. Cox, 20 Ga. 240 (1856). See also Horn v. Ross & Leitch, 20 Ga. 210, 65 Am. Dec. 621 (1856) (decided under former law); James v. Taylor, 93 Ga. 275, 20 S.E. 309 (1893); Rountree v. Gaulden, 128 Ga. 737, 58 S.E. 346 (1907) (decided under former Code 1882, § 3784);(decided under former Civil Code 1895, § 5189).
Admission for impeachment purposes.
- Extrajudicial statement respecting the title to the property levied on, made by the defendant in fi. fa. in a claim case, is not inadmissible as being an admission, when the statement is offered and admitted in evidence solely for the purpose of impeaching the testimony of such defendant. Nesmith v. Nesmith, 37 Ga. App. 779, 142 S.E. 176 (1928) (decided under former Civil Code 1910, § 5776).
Declarations as to title.
- Declarations by a defendant in fi. fa. against the defendant's title to property in the defendant's possession are not admissible in behalf of a claimant, if made after the judgment was obtained or while the litigation was pending and with reference thereto. James v. Taylor, 93 Ga. 275, 20 S.E. 309 (1893) (decided under former Code 1882, § 3784).
Declarations of the defendant in fi. fa. as to the ownership of the property levied on, made after the filing of the suit which resulted in the rendition of the judgment against the defendant, were admissions after the pendency of the litigation, and were excluded by the terms of the former statute. Smith v. Johnson, 13 Ga. App. 837, 80 S.E. 1051 (1913) (decided under former Civil Code 1910, § 5776).
Evidence as to a declaration made by the defendant in fi. fa. after the levy that the property levied on belonged to the claimant and that the defendant in fi. fa. bought the property merely as the claimant's agent, was improperly admitted, since it was a declaration made by the defendant in fi. fa. after the pendency of the litigation. Alford v. Sharber, 41 Ga. App. 707, 154 S.E. 463 (1930) (decided under former Civil Code 1910, § 5776).
Possession.
- In the trial of a claim case, declarations of a defendant in execution made after the pendency of litigation and prior to the time of levy, but at a time when the defendant was not in possession of the property levied on, that the defendant owned such property, are not admissible as evidence and of no probative value even if admitted without objection. Nelson v. Brannon, 32 Ga. App. 455, 123 S.E. 735 (1924) (decided under former Civil Code 1910, § 5776); McSwain v. Estroff, 34 Ga. App. 183, 129 S.E. 16 (1925);(decided under former Civil Code 1910, § 5776).
Sale of property.
- Declarations of the defendant in fi. fa. made after the suit was brought which resulted in the judgment the plaintiff was then seeking to enforce, and shortly before that judgment was rendered, to the effect that the defendant had sold the lands in question to the claimant, were not admissible in the latter's favor. Tillman v. Fontaine, 98 Ga. 672, 27 S.E. 149 (1896) (decided under former Civil Code 1895, § 5189).
Recital in deed as to payment of purchase money.
- While, in a deed from defendant in fi. fa. to claimant, the receipt or recital of the payment of purchase money may be evidence of payment, when the deed was made before the suit in which the judgment was obtained, was commenced, yet it is but prima facie evidence, and a charge that it is not evidence will not necessitate the grant of a new trial, if the other facts of the case required the verdict as found. Bonner v. Metcalf, 58 Ga. 236 (1877) (decided under former Code 1873, § 3784).
d. Examples
Tax digest as evidence.
- In a claim case, the tax digest, showing the returns of the defendant in execution before the pendency of litigation, is admissible in evidence as an admission of the defendant. It is competent also to show that the claimant did not make any return of property for taxation during the year in which the judgment was rendered. McLendon v. Dunlap Hdwe. Co., 3 Ga. App. 206, 59 S.E. 718 (1907) (decided under former Civil Code 1895, § 5189).
Letters as evidence.
- Letters written by the defendant in execution during the year in which the judgment was rendered, both before and after its date, to an overseer, giving directions as to the cultivation of the crop subsequently under levy and as to the management of the farm during that year, and relating to other like matters, were admissible in evidence for the plaintiff as acts of the defendant tending to show possession and control by the defendant. Tillman v. Fontaine, 98 Ga. 672, 27 S.E. 149 (1896) (decided under former Civil Code 1895, § 5189). Mixon v. Lacey, 26 Ga. App. 542, 107 S.E. 259 (1921) See also (decided under former Civil Code 1910, § 5776).
In an action by a customer who ate a muffin, which allegedly contained an industrial staple, against the franchisor of the restaurant and the company which allegedly manufactured the muffin mix, a letter from the franchisee's insurer to the customer's attorney, in which the attorney identified the alleged manufacturer of the muffin mix, was inadmissible hearsay as the franchisee's insurer was neither a party nor a privy of a party. Jackson v. Dunkin' Donuts, Inc., 211 Ga. App. 596, 440 S.E.2d 56 (1994) (decided under former O.C.G.A. § 24-3-31).
Text messages from defendant to victim's parent.
- Trial court did not err when the court allowed the victim's parent to testify about text messages that the parent had received from the defendant during the time that the victim's whereabouts were unknown because, according to the victim's parent, the defendant's text messages invited the parent on dates and explained why the defendant was not participating in the search for the victim, and that testimony was properly admitted under the admissions by a real party in interest exception to the hearsay rule under the former evidence code; and the parent provided evidence that identified the defendant as the person who sent the text messages. Carter v. State, 302 Ga. 685, 808 S.E.2d 704 (2017)(decided under former O.C.G.A. § 24-3-34).
Telephone messages.
- As telephone messages made following conversations between a party opponent and a testifying witness noted the contents of a conversation, not an act, transaction, occurrence, or event, the business records exception to the hearsay rule was inapplicable; for the contents of the party's telephone conversations to be admissible, the party would have to be given the opportunity to cross-examine the employees to whom the witness spoke with in regard to the potential for misrepresenting the statements. Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006) (decided under former O.C.G.A. § 24-3-31).
Video interview and voicemail.
- Trial counsel was not ineffective for failing to object to the admission of the video-recorded interview of the defendant's ex-girlfriend as the defendant's statements in a voicemail to the ex-girlfriend were admissions of a party opponent; and the defendant did not show that had trial counsel objected to a lack of foundation as to the voicemail instead of to the video interview, such an objection would have been meritorious because the ex-girlfriend testified that the ex-girlfriend had previously been in a relationship with the defendant and that it was the defendant's voice in the voice message. Lyons v. State, Ga. , 843 S.E.2d 825 (2020).
Audio recording of telephone conversation.
- Trial counsel was not ineffective for failing to object to the introduction of an audio recording of a telephone conversation between the second defendant and the second defendant's girlfriend, which included the second defendant telling the girlfriend that the girlfriend did not have to allow police to search the home, and the girlfriend could be heard describing the substance of a news report about the murder, because the second defendant's statements on the recording were admissions of a party opponent. Haney v. State, 305 Ga. 785, 827 S.E.2d 843 (2019).
Testifying witness need not be co-conspirator.
- Nothing in the text of O.C.G.A. § 24-8-801(d)(2)(E) requires that the testifying witness also be a co-conspirator for the exception to apply; in fact, § 24-8-801(d)(2)(E) does not necessitate that the witness testifying to a co-conspirator statement be a co-conspirator, instead only requiring that the declarant be a co-conspirator. Lawrence v. State, 342 Ga. App. 396, 802 S.E.2d 859 (2017), cert. denied, No. S18C0094, 2018 Ga. LEXIS 322 (Ga. 2018).
Admission of statement of party opponent.
- Witness's testimony that the defendant told the witness that the defendant shot the victim was not inadmissible hearsay because the state elicited it as an admission of a party opponent, which was admissible as an exception to the hearsay rule. Dawson v. State, 308 Ga. 613, 842 S.E.2d 875 (2020).
Recorded telephone conversations with an informant.
- There was circumstantial evidence that a defendant was the participant in recorded phone conversations with an informant; therefore the conversations were admissible as admissions of a party opponent under former O.C.G.A. § 24-3-31, and the entirety of the calls were admissible under former O.C.G.A. § 24-3-38 (see now O.C.G.A. § 24-8-822). Kimble v. State, 301 Ga. App. 237, 687 S.E.2d 242 (2009) (decided under former O.C.G.A. § 24-3-31).
Because the informant's recorded statements provided context for the defendant's portion of the telephone conversation, the informant's statements were not hearsay as the statements entailed admissions of a party opponent, and the Confrontation Clause did not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted; therefore, the trial court did not err in admitting the recording. Jones v. State, 339 Ga. App. 95, 791 S.E.2d 625 (2016).
Admission of liability.
- Upon the trial of a suit in which the plaintiff alleged that the plaintiff suffered personal injuries as a result of the negligent operation by the defendant of an automobile in which the plaintiff was traveling, which caused a collision between plaintiff's vehicle and another automobile, a statement afterwards made by the defendant to the plaintiff that the defendant wanted the plaintiff to have all the treatment and attention necessary and would pay for such, and would probably pay something extra to the plaintiff on account of the plaintiff's suffering, was relevant and admissible as tending to show admission of liability. Rentz v. Collins, 51 Ga. App. 782, 181 S.E. 678 (1935) (decided under former Code 1933, § 38-403).
Statements against interest.
- Plaintiff's statement to the police officer at the scene of an accident that the plaintiff did not see the truck before the collision was admissible as a statement against interest. Cleveland v. Bryant, 236 Ga. App. 459, 512 S.E.2d 360 (1999) (decided under former O.C.G.A. § 24-3-31).
Because the injured party admitted, after the fact, to the coworker that the injured party did not place the hot coffee, that later spilled on the injured party's lap, on the floor because the injured party did not want anything to get on the coworker's new car, the statement was admissible under former O.C.G.A. § 24-3-31 as a party's admission. Bernath v. People Success, Inc., 274 Ga. App. 880, 619 S.E.2d 378 (2005) (decided under former O.C.G.A. § 24-3-31).
Undercover detective's testimony regarding a conversation the detective overheard between a defendant and a confidential informant (CI) as to a drug transaction was not inadmissible hearsay as the detective could identify both parties to the conversation and the statement by the defendant fell within the hearsay exception for a statement against interest. Escobar v. State, 296 Ga. App. 898, 676 S.E.2d 291 (2009) (decided under former O.C.G.A. § 24-3-31).
Trial court did not err in admitting the testimony of the defendant's mother that the defendant told the mother approximately two hours after the murder that the defendant would re-enlist in the army rather than killing people for free because the defendant's statement was readily admissible as an admission by a party under former O.C.G.A. § 24-3-31. Dukes v. State, 290 Ga. 486, 722 S.E.2d 701 (2012) (decided under former O.C.G.A. § 24-3-31).
Admissions against penal interest.
- In a prosecution for burglary, evidence of defendant's admission that defendant had broken into a house on another occasion was admissible as an admission by defendant against the defendant's penal interest. Howard v. State, 227 Ga. App. 5, 488 S.E.2d 489 (1997) (decided under former O.C.G.A. § 24-3-31).
Defendant's adoption of statements in a probation officer's disciplinary reports that defendant violated Diversion Center rules was sufficient to render the documents competent proof of the facts recited as an admission against interest by a party. Kendrick v. State, 240 Ga. App. 530, 523 S.E.2d 414 (1999) (decided under former O.C.G.A. § 24-3-31).
Insurance.
- Admissions against interest are such even though the admissions may contain a suggestion that the party making the admissions carry insurance, and the mere fact that insurance, or an insurance company, is mentioned as an inextricable part of the statement made by such party or conversation in which the party indulged, does not make the evidence inadmissible when offered by the opposite party, as the party making such statement has only the party to blame in referring to insurance, or to the insurance company, in making the admission against one's interest. Wade v. Drinkard, 76 Ga. App. 159, 45 S.E.2d 231 (1947) (decided under former Code 1933, § 38-403).
Admissions as to gift.
- Evidence of admissions by the defendant as to gift of certain property, which was involved in controversy, to the defendant's children and grandchildren, was admissible. Poullain v. Poullain, 76 Ga. 420, 4 S.E. 92 (1886) (decided under former Code 1882, § 3784).
Statements by a property owner against the owner's interest as to the location of a line in dispute are admissible in evidence. Seaboard Air Line R.R. v. Taylor, 214 Ga. 212, 104 S.E.2d 106 (1958) (decided under former Code 1933, § 38-403).
Statement as to ownership of a colt.
- Horse trainer's offered testimony that another trainer spoke with possessors of a colt, who admitted that the colt belonged to the trainer, was a hearsay statement that was admissible under former O.C.G.A. § 24-3-31 as an admission of a party-opponent in the trainer's claim to possession and ownership of the colt; accordingly, a question of fact was raised on the trainer's claim which should have precluded summary judgment pursuant to O.C.G.A. § 9-11-56. Medlin v. Morganstern, 268 Ga. App. 116, 601 S.E.2d 359 (2004) (decided under former O.C.G.A. § 24-3-31).
Statements by a dog's owner.
- Affidavit by the mother of a dog-bite victim that the dog's owner told her that "she knew something like this would happen" was admissible and was evidence sufficient to preclude summary judgment for defendants. Johnson v. Kvasny, 230 Ga. App. 162, 495 S.E.2d 651 (1998) (decided under former O.C.G.A. § 24-3-31).
Suit on insurance policy.
- In a suit brought by a widow and child on a life insurance policy, insuring the life of the husband and father, and the plaintiffs were the joint beneficiaries under the policy, the admissions of the widow were competent evidence for the defendant on the question of misrepresentation made in the application for insurance. Southern Life Ins. Co. v. Wilkinson, 53 Ga. 535 (1874) (decided under former Code 1873, § 3784).
Employee's statement to an insurance adjuster was not admissible against employer as an admission of a party opponent because the individual was a "mere employee," and as such had no authority to bind the employer by the employee's statement. HCP III Woodstock, Inc. v. Healthcare Servs. Group, Inc., 254 Ga. App. 242, 562 S.E.2d 225 (2002) (decided under former O.C.G.A. § 24-3-31).
Advisory study prepared by private citizens together with public employees is not necessarily admissible as being a statement against the interest of the public entity authorizing the study. To be so considered, the entity must have been constrained by the force of the evidence to issue the report, rather than issuing the report as a result of mere deliberative recognition of the problems addressed in the report. United Waste, Ltd. v. Fulton County, 184 Ga. App. 694, 362 S.E.2d 476 (1987) (decided under former O.C.G.A. § 24-3-31).
3. Acquiescence or Silence as Admission
a. In General
Former statute was a principle founded on common sense and common honesty, and administered day by day in courts of justice, not only in settling questions of property, but in deciding upon matters involving liberty and life. Markham v. O'Connor, 52 Ga. 183, 21 Am. R. 249 (1874) (decided under former Code 1873, § 3790).
Comment on silence not permitted.
- In criminal cases, a comment upon a defendant's silence or failure to come forward is far more prejudicial than probative. Thus, after December 12, 1991, such a comment will not be allowed even if the defendant has not received Miranda warnings and when the defendant takes the stand in the defendant's own defense. State v. Mallory, 261 Ga. 625, 409 S.E.2d 839 (1991), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020), overruling Fraley v. State, 256 Ga. 178, 345 S.E.2d 590 (1986) (decided under former O.C.G.A. § 24-3-36) Clark v. State, 271 Ga. 6, 515 S.E.2d 155 (1999) But see (decided under former O.C.G.A. § 24-3-36).
In a case in which ineffective assistance of counsel was claimed due to counsel's failure to object to a comment in the prosecutor's closing argument that the defendant could have given the defendant's version of the facts of a domestic dispute to the police, the appellate court improperly relied on exclusions to comments on a defendant's silence in Morrison v. State, 554 S.E.2d 190 (2001); the court overruled Morrison based on the bright-line rule in Mallory v. State, 409 S.E.2d 839 (1991), that, with reference to former O.C.G.A. § 24-3-36, that comment upon a defendant's silence or failure to come forward was far more prejudicial than probative. Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009) (decided under former O.C.G.A. § 24-3-36).
Mallory did not apply.
- As the interpretation of former O.C.G.A. § 24-3-36 in Mallory v. State, 409 S.E.2d 839 (1991), had only prospective application, it did not apply to the defendant's case, which was tried before Mallory was decided. Therefore, defense counsel's strategic decision not to object to the prosecutor's comment on the defendant's request for counsel was not prejudicial as a matter of law; in view of the overwhelming evidence of the defendant's guilt, the defendant did not establish a violation of the right to effective assistance of counsel. Patterson v. State, 285 Ga. 597, 679 S.E.2d 716 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892 (2010) (decided under former O.C.G.A. § 24-3-36).
Reason of admission.
- Ground for admission of the statement of a third person in the presence of the accused is that the omission to controvert the statement affords a basis for an inference of the statement's truth. Such statement is admissible in evidence, to show that it calls for a reply, and to show the acquiescence of the accused. Thomas v. State, 143 Ga. 268, 84 S.E. 587 (1915) (decided under former Penal Code 1910, § 1029).
Estoppel.
- When one under a duty to speak, fails to do so, one is thereafter estopped to deny what one's silence imports. Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 187 S.E.2d 907 (1972) (decided under former Code 1933, § 38-409).
Proof must be affirmative.
- Saying of other persons are admissible against a party when it affirmatively appears that the party assented to the statements by the party's silence, or in some other way. Drumwright v. State, 29 Ga. 430 (1859) (decided under former law); Williamson v. State, 29 Ga. App. 283, 114 S.E. 919 (1922); Ball v. State, 47 Ga. App. 844, 171 S.E. 726 (1933) (decided under former Penal Code 1910, § 1029);(decided under former Code 1933, § 38-409).
b. Circumstances Requiring Response
Circumstances must require an answer.
- It is only when the circumstances require an answer or denial that silence may amount to an admission. Graham v. State, 118 Ga. 807, 45 S.E. 616 (1903) (decided under former Penal Code 1895, § 1003).
Trial court did not err in granting summary judgment to manufacturer on the purchaser's breach of warranty claim regarding a copier that made more poor, unusable copies; although the purchaser wrote a letter to the manufacturer about the problems, the letter did not reference either express or implied warranties, or request any specific relief, and, thus, the manufacturer's lack of a reply could not be construed as an admission. McQueen v. Minolta Bus. Solutions, Inc., 275 Ga. App. 297, 620 S.E.2d 391 (2005) (decided under former O.C.G.A. § 24-3-36).
Accused must hear statements.
- When it is sought to charge a prisoner by reason of sayings of the prisoner's spouse in regard to the crime for which the prisoner is tried, and acquiesced in by the prisoner's silence, such sayings must have been in the prisoner's immediate presence, where the prisoner could hear distinctly all that was said; otherwise the statements would be inadmissible. Jones v. State, 65 Ga. 147 (1880) (decided under former Code 1873, § 3790).
Before evidence can be admitted in a criminal case to show acquiescence of the accused, by silence, in statements made by the officer who arrested the accused to another officer, as to the sayings and conduct of the accused when arrested, it must affirmatively appear that the accused was present and heard the inculpatory statements made against the accused, and by silence, acquiesced in the statements. Simmons v. State, 115 Ga. 574, 41 S.E. 983 (1902) (decided under former Penal Code 1895, § 1003).
Admissions should be direct and call for contradiction.
- Admissions of a party, which are to be inferred from the party's acquiescence in the verbal statements of others, made in the party's presence, ought to be regarded with great caution, and unless the evidence be of such direct declarations, and of that kind which naturally call for a contradiction, or some assertions made to the party with respect to the party's right, which by the party's silence the party acquiesces in, it ought not to be received at all. Rolfe v. Rolfe, 10 Ga. 143 (1851) (decided under former law).
Proof of circumstances.
- Before the sayings of a third person, made in the presence of one who is subsequently charged with the commission of a criminal offense, should be admitted in evidence against the accused, there should be proof affirmatively disclosing that the circumstances were such as to call upon the accused to make some response to what was said in the accused's presence. The circumstances must require an answer or denial, or other conduct, before silence will amount to an implied admission. Lumpkin v. State, 125 Ga. 24, 53 S.E. 810 (1906) (decided under former Penal Code 1895, § 1003).
Person under arrest.
- If a statement tending to incriminate a person was made in the person's presence and the person remains silent, the mere fact that the person was under arrest or was in custody at the time will not render evidence of such statement and silence inadmissible as an implied admission. Creel v. State, 216 Ga. 233, 115 S.E.2d 552 (1960) (decided under former Code 1933, § 38-409).
Police interrogation was not such a circumstance as required an answer or denial so as to authorize charging the former statute in a criminal case. Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-409).
c. Procedural Considerations
Value of admission as evidence.
- Failure to controvert an accusation is not an affirmative act on the part of the accused expressive of guilt of the crime charged. Its evidentiary value is that of an incriminating admission to be considered along with the other circumstances in inferring the guilt of the accused. Thomas v. State, 143 Ga. 268, 84 S.E. 587 (1915) (decided under former Penal Code 1910, § 1029).
Question for jury.
- Question of whether the defendant in fact heard the statement in question was for the jury; and if the jury found under the fact that the defendant did hear the statement, it would be a further question for them to determine whether under the circumstances an answer or a denial or other conduct was required, and also whether the defendant's acquiescence or silence under such circumstances amounted to an admission. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 38-409).
It is allowable to repeat an entire conversation, which occurred between the witness and a party, which consisted, amongst other things, of distinct charges made by the witness, and which were silently acquiesced in, or answered and justified. Morris v. Stokes, 21 Ga. 552 (1857) (decided under former law); Dixon v. Edwards, 48 Ga. 142 (1873);(decided under former Code 1873, § 3790).
Since it was not the statement of a third person which was admitted as substantive evidence, but only the fact of the accused's failure to deny the statement, the admissibility of such testimony was in no way affected by the fact that the incriminating statement was uttered by one who was incompetent to testify against defendant as a witness in a criminal prosecution. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 38-409).
Scope of instructions.
- In charging a jury the rule contained in the former statute, the court should not fail to instruct the jury, in connection with that rule, that the jury was to determine whether or not, under all the circumstances, an answer or denial was required. Hammond v. State, 156 Ga. 880, 120 S.E. 539 (1923) (decided under former Penal Code 1910, § 1029).
Trial court properly charged a jury regarding the former O.C.G.A. § 24-3-36 evidentiary presumption arising from a limited liability company's (LLC's) agent's failure to reply to a corporation's invoices because the LLC admitted receiving some of the corporation's goods and services, only disputing the amount due, and the failure to respond to an invoice was not a declaration against the LLC's interest pursuant to O.C.G.A. § 10-6-64; in addition, the charge was supported by former O.C.G.A. § 24-4-23 (see now O.C.G.A. § 24-14-25). Forrest Cambridge Apts., LLC v. Redi-Floors, Inc., 295 Ga. App. 840, 673 S.E.2d 318 (2009) (decided under former O.C.G.A. § 24-3-31).
It was reversible error to instruct the jury in a criminal case according to the former statute that silence or acquiescence by a person in police custody may amount to an admission of guilt. Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-409).
Evidence was sufficient to authorize instruction based on former O.C.G.A.
§ 24-3-36 in the following cases. - See Eberhart v. State, 88 Ga. App. 501, 76 S.E.2d 832 (1953) (decided under former Code 1933, § 38-409); Bloodworth v. State, 216 Ga. 572, 118 S.E.2d 374 (1961);(decided under former Code 1933, § 38-409).
Ineffective counsel not shown.
- Although, under former O.C.G.A. § 24-3-36, the state's witness's testimony that a defendant did not respond to a detective's questions was more prejudicial to defendant than it was probative of defendant's guilt, defendant did not show how that testimony affected the outcome of the trial such that defense counsel was ineffective for not objecting to the testimony or requesting a special instruction. Bruce v. State, 268 Ga. App. 677, 603 S.E.2d 33 (2004) (decided under former O.C.G.A. § 24-3-36).
d. Illustrations and Applications
General denial by accused.
- A prisoner's flat denial of any knowledge of or complicity in the offense is a disavowal of the act as the prisoner's act; and though the prisoner may not in detail deny each minor incriminating circumstance which may be charged against the prisoner, the prisoner's general denial is sufficient to exclude the idea of an implied admission. Ware v. State, 96 Ga. 349, 23 S.E. 410 (1895) (decided under former Penal Code 1895, § 1003).
Principle that acquiescence or silence, when the circumstances require an answer or denial, may amount to an admission, has no application to a criminal cause when a person accused by another with the commission of an offense, immediately denies all knowledge of, or complicity in, its commission, even though such denial be in general terms and does not in detail extend to each of the minor incriminating circumstances charged against the person. Westberry v. State, 174 Ga. 646, 163 S.E. 729 (1932) (decided under former Penal Code 1910, § 1029).
Witness's comment on defendant's pre-arrest silence not prejudicial.
- With regard to convictions for aggravated assault and related crimes, defendant failed to show that trial counsel was ineffective for failing to object or move for a mistrial when a security officer commented on defendant's pre-arrest silence, namely that defendant did not speak up as to owning the type of vehicle used to perpetrate the crimes; even if testimony on defendant's pre-arrest silence had been objectionable, defendant failed to show any prejudice since other evidence showed that defendant drove to the police station in defendant's truck and consented to a search of that vehicle. Gibson v. State, 291 Ga. App. 183, 661 S.E.2d 850 (2008) (decided under former O.C.G.A. § 24-3-36).
Admission of agents or attorneys.
- Admission by agents or attorneys are not admissible in criminal cases in the sense in which the admissions are admissible in civil cases. The admissions should not be treated as evidence against the accused, unless shown to have been authorized by the accused. Farmer v. State, 190 Ga. 41, 28 S.E. 26 (1896) (decided under former Penal Code 1895, § 1003).
Misstatement of opposing counsel.
- Silence is estopped when attorney failed to deny misstatement of opposing counsel, in reply to a question of court, as to whether a certain allegation was denied by plea. Cuthbert Ice Co. v. York Mfg. Co., 20 Ga. App. 695, 93 S.E. 279 (1917) (decided under former Penal Code 1910, § 1029).
Acquiescence by agent.
- Where a son informs his father that his employer would prosecute unless the father signed a mortgage to secure the son's shortage, silence of the employer's agent, who was present, adopted the threat, and was duress. Small v. Williams, 87 Ga. 681, 13 S.E. 589 (1891) (decided under former Code 1882, § 3790).
Entries in bank pass book.
- In a suit by a decedent's administrator against a bank for the recovery of a deposit claimed to be due the estate, a failure of the depositor to make objection to entries of the bank in the depositor's pass book could be accounted as an admission on the depositor's part as to the correctness of the statement. Cheney v. Bank of Bremen, 25 Ga. App. 114, 102 S.E. 903 (1920) (decided under former Civil Code 1910, § 5782).
Silence regarding terms of agreement.
- Physician had a duty and obligation to respond to limitations on the physician's privileges set forth in an agreement with a hospital, and when the physician silently exercised the privileges for several years, the physician waived the physician's right to insist on compliance with other procedural requirements pertaining to the physician's termination. St. Mary's Hosp. v. Cohen, 216 Ga. App. 761, 456 S.E.2d 79 (1995) (decided under former O.C.G.A. § 24-3-36).
Silence regarding lease renewal.
- Rule of estoppel by silence was not applicable with respect to a commercial tenant's exercise of an option to renew the lease for another term under former O.C.G.A. §§ 24-3-36 and24-4-23 (see now O.C.G.A. §§ 24-8-801 and24-14-423) since the tenant did not respond to the landlord's email which contained an offer to renew on different terms; such constituted a counteroffer. Pargar, LLC v. CP Summit Retail, LLC, 316 Ga. App. 668, 730 S.E.2d 136 (2012) (decided under former O.C.G.A. §§ 24-3-36 and24-4-23).
Advertising person as partner.
- An advertisement in a local newspaper, which contained the statement that a certain person was a member of a named partnership and which was paid for by such person, was admissible to show an ostensible partnership, though such person did not authorize the statement in the advertisement that the person was a partner. English v. Moore, 28 Ga. App. 265, 110 S.E. 737, later appeal, 29 Ga. App. 307, 114 S.E. 921 (1922) (decided under former Civil Code 1910, § 5782).
Admitting responsibility for personal injuries.
- Statements made by one person in the presence of another to the effect that the latter was alone responsible for injuries the person had received, may, if silently acquiesced in by the person amount to an admission on the person's part, that such statements are true. Holston v. Southern Ry., 116 Ga. 656, 43 S.E. 29 (1902) (decided under former Civil Code 1895, § 5195).
Admission of coconspirator.
- Evidence as to admissions of guilt involving the defendant, made by a coconspirator after the termination of the conspiracy, is admissible when it appears that the admissions were made in the presence of the defendant personally and were then freely and voluntarily declared by the defendant to be true. Gunter v. State, 19 Ga. App. 772, 92 S.E. 314 (1917) (decided under former Penal Code 1910, § 1029).
When the evidence is sufficient on the trial of a criminal case to authorize a finding that the defendant and another were engaged in a criminal conspiracy, and the alleged codefendant thereafter makes a confession in the presence of the defendant which involves both parties, the silence of the defendant under such circumstances may amount to an implied admission. Brown v. State, 121 Ga. App. 228, 173 S.E.2d 470 (1970) (decided under former Code 1933, § 38-409).
Codefendants.
- When a joint statement was made and signed by all three defendants in the presence of each other, the statement of each was the statement of all, and so far as the writing contained statements by others than the defendant on trial, proof of such statements, together with the defendant's assent, constituted evidence of an admission by the defendant. Morris v. State, 177 Ga. 106, 169 S.E. 495 (1933) (decided under former Code 1933, § 38-409).
When the state shows affirmatively that one jointly indicted with a defendant made statements in the presence of the defendant charging the defendant with the commission of the crime, and the defendant either stood mute or failed to deny the charge, the evidence would change in character from hearsay to that of an implied admission by the defendant. Long v. State, 205 Ga. 257, 53 S.E.2d 365 (1949) (decided under former Code 1933, § 38-409).
Statement by accomplice.
- Trial court did not abuse the court's discretion in determining that an accomplice's statement that "This is the t-shirt we used to wipe the blood and our prints off the gun" was admissible as an adoptive admission because the defendant was looking at and within earshot of the accomplice when the accomplice made the incriminating statement. Wilkins v. State, 308 Ga. 131, 839 S.E.2d 525 (2020).
Statements of wife.
- Evidence of a third party as to statements of a wife that her husband had just beaten her, made in the presence of the husband without denial on his part and under such circumstances that his silence amounted to an admission, is admissible on the trial of the husband for wife-beating, although the wife declines to testify at the trial against her husband. Joiner v. State, 119 Ga. 315, 46 S.E. 412 (1904) (decided under former Penal Code 1895, § 1003).
Incriminating statements by intoxicated person.
- When a witness made certain incriminating statements as to defendants in their presence and which defendants did not deny, and it was shown that this man was drunk and maudlin, and that the defendants were greatly frightened by the man's conduct, such statements of the witness did not measure up to the requirements of the law necessary to show an implied confession by silence or acquiescence and it was error to admit such statements in evidence. Jones v. State, 2 Ga. App. 433, 58 S.E. 559 (1907) (decided under former Penal Code 1895, § 1003).
Ratification of paper.
- Mere silence of a party when a paper is handed to that party is no evidence of the ratification of the transaction evidenced by the paper, when the person handling the paper is not one to whom dissent would be appropriately expressed. Berry v. Cooper, 33 Ga. 155 (1864) (decided under former law).
Silence during trial.
- When a plaintiff or defendant introduces a witness in court, the acquiescence or silence of the party during the progress of the trial would not amount to an admission, the circumstances at that time not requiring an answer or denial. McElmurray v. Turner, 86 Ga. 215, 12 S.E. 359 (1890) (decided under former Code 1882, § 3790).
Declarations of bystanders.
- Evidence as to a declaration of a bystander, accusing one then present of the commission of a criminal act, which declaration the accused person heard but failed to deny or explain, may tend to establish the accused's guilt, and is admissible on the accused's trial for such offense. Thurman v. State, 14 Ga. App. 534, 81 S.E. 796 (1914) (decided under former Penal Code 1910, § 1029); Love v. State, 69 Ga. App. 411, 25 S.E.2d 827 (1943);(decided under former Code 1933, § 38-409).
Doctor's conversation with a patient was not an admission by silence as the patient did not ask the doctor why the doctor failed to biopsy a breast lesion and no explanation was required; that the doctor stated that they should discuss the patient's concerns at a later time could not be construed as silence or acquiescence in the face of the patient's concerns. Davis v. Reid, 272 Ga. App. 312, 612 S.E.2d 112 (2005) (decided under former O.C.G.A. § 24-3-36).
Failure to deny inculpatory statements was held admissible in the following cases.
- See Moye v. State, 66 Ga. 740 (1881) (decided under former Code 1873, § 3790); Davis v. State, 114 Ga. 104, 39 S.E. 906 (1901); Clark v. State, 117 Ga. 254, 43 S.E. 853 (1903) (decided under former Penal Code 1895, § 1003); Watson v. State, 136 Ga. 236, 71 S.E. 122 (1911); Nunn v. State, 143 Ga. 451, 85 S.E. 346 (1915) (decided under former Penal Code 1895, § 1003); Gates v. State, 20 Ga. App. 171, 92 S.E. 974 (1917); Holt v. State, 28 Ga. App. 758, 113 S.E. 49 (1922) (decided under former Penal Code 1910, § 1029); Smiley v. State, 156 Ga. 60, 118 S.E. 713 (1923); Walker v. State, 197 Ga. 221, 28 S.E.2d 656 (1944) (decided under former Penal Code 1910, § 1029); Clark v. Woodward, 76 Ga. App. 181, 45 S.E.2d 473 (1947);(decided under former Penal Code 1910, § 1029);(decided under former Penal Code 1910, § 1029);(decided under former Penal Code 1910, § 1029);(decided under former Code 1933, § 38-409);(decided under former Code 1933, § 38-409).
Letter memorializing a conversation, to which recipient failed to respond, was admissible as an admission by silence.
- Trial court did not err in allowing an attorney to read a letter memorializing a conversation between him and a decedent because the out-of-court statement of the decedent referenced in the letter was admissible as an admission by silence of the executor when the attorney mailed a package containing closing documents to the executor, including a receipt the decedent had executed, and the executor mailed a check to the attorney based on the erroneous assumption that the executor needed to do so in order to pay off the advance that had been received and was referenced in the receipt; the attorney mailed the letter to the executor, returned the check, and set forth the conversation with the decedent concerning the intent behind the receipt, and the executor's failure to respond could be construed as an acquiescence to the construction of the receipt set forth in the letter. Jerkins v. Jerkins, 300 Ga. App. 703, 686 S.E.2d 324 (2009) (decided under former O.C.G.A. § 24-3-36).
Settlement agreement.
- Trial court erred in granting the insureds' motion to enforce a settlement agreement a parent and an administrator allegedly reached with an insurer because the insurer's tender was not sufficient to constitute acceptance of the settlement offer; the attorney for the mother and the administrator was not silent but stated the intent to consult with the parent and the administrator, the attorney committed to no deadline for responding, and the terms of the offer were in writing and equally known to all parties. Kitchens v. Ezell, 315 Ga. App. 444, 726 S.E.2d 461 (2012) (decided under former O.C.G.A. § 24-3-36).
Statement was not an adoptive admission.
- Police officer's testimony that the defendant's brother stated that the defendant was involved was hearsay and was not admissible as an adoptive admission as there was no evidence permitting an inference the defendant was present when the brother made the statement. In the Interest of E. B., 343 Ga. App. 823, 806 S.E.2d 272 (2017).
Trial court acted within the court's discretion in concluding that accusations of sexual abuse and the defendant's failure to respond to the accusations were admissible as adoptive admissions because the accusation that the defendant had sexual intercourse with the girlfriend's daughter was the type of statement that an innocent defendant would normally be induced to respond and there were sufficient facts from which the jury could infer that the defendant heard, understood, and acquiesced in the accusations, given that the accusations were made in the apartment in the defendant's presence. Neal v. State, 355 Ga. App. 125, 843 S.E.2d 11 (2020).
Statement admissible as adoptive admission.
- Trial court did not abuse the court's discretion in admitting an audio recording of a phone call that the defendant made from jail as an adoptive admission because the trial court was authorized to conclude that the other person was implicating the defendant in the shooting of the victim by saying that the other person recognized the defendant in the video of the shooting. Westbrook v. State, 308 Ga. 92, 839 S.E.2d 620 (2020).
In the defendant's trial for incest, the defendant's flight from Georgia to Texas and the defendant's failure to meet with the investigator as the defendant promised, although not admissible under the adoptive-admission theory under O.C.G.A. § 24-8-801, was admissible as circumstantial evidence of consciousness of guilt. Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020).
Evidence was properly held inadmissible in the following case.
- See Chedel v. Mooney, 158 Ga. 297, 123 S.E. 300 (1924) (decided under former Penal Code 1910, § 1029).
Trial court improperly instructed the jury that acquiescence or silence, when the circumstances required an answer, a denial, or other conduct, could amount to an admission because a charge in the language of former O.C.G.A. § 24-3-36 could be construed as a comment on the defendant's constitutional right to remain silent; however, the improper jury instruction was harmless beyond a reasonable doubt because the charge as a whole contained sufficient clarity so as not to mislead the jury concerning the exercise of the right to remain silent, there was no reference at trial that could be construed as a comment on the defendant's exercise of his right to remain silent, the evidence of guilt was overwhelming, and the erroneous charge in no way pointed directly at the substance of the defendant's defense. Ruiz v. State, 286 Ga. 146, 686 S.E.2d 253 (2009) (decided under former O.C.G.A. § 24-3-36).
4. Admissions of Agents
a. In General
General rule originated in necessity of case.
- The well-settled rule of law, which makes an agent a competent witness either for or against the agent's principal, originated in the necessity of the case. Lowrys v. Candler, 64 Ga. 236 (1879) (decided under former Code 1873, § 2206).
Former Code 1933, § 4-315 had reference only to the admissibility of declarations as evidence. Grant v. Hart, 197 Ga. 662, 30 S.E.2d 271 (1944) (decided under former Code 1933, § 4-315).
Established rules as to declarations of deceased agents.
- Words "or else the agent is dead" referred to entries made by an agent since deceased in the regular course of the business of the principal, or declarations made by a person since deceased against interest, or other instances when, under the established rules of evidence, the declarations of a deceased person might be admitted in evidence. Turner v. Turner, 123 Ga. 5, 50 S.E. 969 (1905) (decided under former Civil Code 1895, § 3034).
Admission by agent must come within one of exceptions.
- Admission on the part of the agent which had the effect of imputing negligence to the principal when not coming within one of the exceptions stated in former Code 1933, §§ 4-315 and 38-406 and not made by authority of the principal and was erroneously admitted in evidence. Southern Ry. v. Allen, 118 Ga. App. 645, 165 S.E.2d 194 (1968) (decided under former Code 1933, § 4-315).
Trial court's exclusion of a report by an emergency vehicle operator's supervisor regarding a collision that occurred between the emergency vehicle and a driver's vehicle was proper in the driver's personal injury action arising therefrom pursuant to former O.C.G.A. §§ 10-6-64 and24-3-33, as even if the statements contained in the report were part of the res gestae, the statements were inadmissible as admissions against interest because neither declarant was a party to the litigation; further, as the statements at issue were cumulative of other testimony that was admitted, the driver could not show prejudice by the trial court's exclusion thereof. Wynn v. City of Warner Robins, 279 Ga. App. 42, 630 S.E.2d 574 (2006) (decided under former O.C.G.A. § 10-6-64).
Declaration of an agent, to be admissible, must be a part of the res gestae. Turner v. Turner, 123 Ga. 5, 50 S.E. 969 (1905) (decided under former Civil Code 1895, § 3034).
If the admission is made dum fervet opus and accompanies the agent's act, or is so nearly connected therewith in time as to be free from all suspicion of device or afterthought, it is admissible in evidence as part of the res gestae. National Bldg. Ass'n v. Quin, 120 Ga. 358, 47 S.E. 962 (1904) (decided under former Civil Code 1895, § 3034); Southern Express Co. v. Cohen, 13 Ga. App. 174, 78 S.E. 1111 (1913); Atlantic Coast Line R.R. v. Williams, 21 Ga. App. 453, 94 S.E. 584 (1917) (decided under former Civil Code 1910, § 3606); Atlantic Coast Line R.R. v. Daugherty, 111 Ga. App. 144, 141 S.E.2d 112 (1965); William-Hester Marble Co. v. Walton, 22 Ga. App. 433, 96 S.E. 269 (1918), overruled on another point, Willingham v. Benton, 25 Ga. App. 412, 103 S.E. 497 (1920) (decided under former Civil Code 1910, § 3606); Jolly v. Chattahoochee Fertilizer Co., 28 Ga. App. 194, 110 S.E. 639 (1922);(decided under former Civil Code 1910, § 3606);(decided under former Civil Code 1910, § 3606);(decided under former Civil Code 1910, § 3606).
Under former Code 1933, §§ 4-315 and 38-406, declarations of an agent as to business transacted by the agent, in order to be admissible against the principal, must have been made by the agent while representing the principal in the transaction in controversy, and must also have been a part of the negotiation, and constituting the res gestae. National Bldg. Ass'n v. Quin, 120 Ga. 358, 47 S.E. 962 (1904) (decided under former Civil Code 1895, § 3034).
Declarations of an agent, to affect the agent's principal, must be a part of the res gestae. Robert R. Sizer & Co. v. G. T. Melton & Sons, 129 Ga. 143, 58 S.E. 1055 (1907) (decided under former Civil Code 1895, § 3034).
To allow the introduction of an extrajudicial statement made by employee in evidence for the purpose of charging an employer with the plaintiff's damage, the statement must have been made as a part of the res gestae. A.K. Adams & Co. v. Homeyer, 87 Ga. App. 301, 73 S.E.2d 581 (1952) (decided under former Code 1933, § 4-315).
In a premises liability action, the declaration of an employee tending to admit negligence that would be imputable to the employer made four years after the fact was not a part of the res gestae and was not admissible in evidence as an admission against interest inasmuch as the employee was not a party to the litigation. Harris v. Inn of Lake City, 285 Ga. App. 521, 647 S.E.2d 277 (2007) (decided under former O.C.G.A. § 10-6-64).
Statements of one agent to another.
- Statements of an agent of one company to the agent of another, exchanged in the course of the agent's employment, regarding the business of the two, was admissible pursuant to former O.C.G.A. §§ 10-6-64 and24-3-33. Coffee Butler Serv., Inc. v. Sacha, 208 Ga. App. 4, 430 S.E.2d 149 (1993) (decided under former O.C.G.A. § 10-6-64).
Declarations of general agent and manager concerning business.
- Declarations made by one shown by some testimony to have been a general agent and manager of a particular business institution, concerning matters relating to that business, are admissible to bind the agent's principal during the continuance of the agency, though made in reference to a particular act of negotiation previously completed and not constituting a part of the res gestae thereof. Citizens Bank v. Timmons, 15 Ga. App. 815, 84 S.E. 232 (1915) (decided under former Civil Code 1910, § 3606).
Letter written by general agent.
- Letter written by a general agent relating to matters apparently within the scope of the agent's agency is, when pertinent to the issue under investigation, competent evidence in the trial of an action against the principal. Louisville & Nashville R.R. v. Tift, 100 Ga. 86, 27 S.E. 765 (1896) (decided under former Civil Code 1895, § 3034); Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656, 116 S.E. 325 (1923);(decided under former Civil Code 1910, § 3606).
Memorandum for suit of general freight agent.
- Defendant may introduce in evidence a memorandum made by the general freight agent of the plaintiff for the purpose of instituting suit against a third party, indicating the agent's understanding of a contract, the agent who made the memorandum having been authorized to do so in the prosecution of the plaintiff's claim and having acted within the scope of the agent's authority in making it. In this transaction, the agent was the alter ego of the plaintiff. Georgia R.R. v. Smith, 76 Ga. 634 (1886) (decided under former Code 1882, § 2206).
Proof of agency required.
- Before the declarations of an agent are admissible, some proof of the agency should be submitted. J.B. Colt Co. v. Wheeler, 31 Ga. App. 427, 120 S.E. 792 (1923) (decided under former Civil Code 1910, § 3606); Waddington v. Stores Mut. Protective Ass'n, 52 Ga. App. 331, 183 S.E. 143 (1935);(decided under former Code 1933, § 4-315).
Declaration in scope of employment is declaration of principal.
- Admission or declaration of an agent, when acting within the scope of the agent's authority, is to be considered as the admission or declaration of the agent's principal. Williams v. C. & G.H. Kelsey & Halsted, 6 Ga. 365 (1849) (decided under former law); Krogg v. Atlanta & W. Point R.R., 77 Ga. 202, 4 Am. St. R. 79 (1886); Cable Co. v. Walker, 127 Ga. 65, 56 S.E. 108 (1906) (decided under former Code 1882, § 2206); Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656, 116 S.E. 325 (1923); Waddington v. Stores Mut. Protective Ass'n, 52 Ga. App. 331, 183 S.E. 143 (1935) (decided under former Civil Code 1895, § 3034);(decided under former Civil Code 1910, § 3606);(decided under former Code 1933, § 4-315).
Admission made through an agent during the existence and in pursuance of the agent's power is no less evidence against the principal than if made by the principal in person. William-Hester Marble Co. v. Walton, 22 Ga. App. 433, 96 S.E. 269 (1918) (decided under former Civil Code 1910, § 3606).
Declaration is inadmissible if not made in business of principal.
- Declaration of an agent was not competent evidence against the agent's principal if it did not appear that such declaration was made while engaged in the business of the master or principal. Newton Mfg. Co. v. White, 53 Ga. 396 (1874) (decided under former Code 1873, § 2206); Evans & Ragland v. Atlanta & W. Point R.R., 56 Ga. 498 (1876); National Bldg. Ass'n v. Quin, 120 Ga. 358, 47 S.E. 962 (1904) (decided under former Code 1873, § 2206); Gainesville Midland Ry. v. Jackson, 1 Ga. App. 632, 57 S.E. 1007 (1907); Seaboard A.L. Ry. v. Brewton, 25 Ga. App. 168, 102 S.E. 920 (1920) (decided under former Civil Code 1895, § 3034); Lott v. Banks, 21 Ga. App. 246, 94 S.E. 322 (1917);overruled on another point,(decided under former Civil Code 1895, § 3034);(decided under former Civil Code 1910, § 3606).
Under former Civil Code 1895, §§ 3034 and 5192, as declarations made by a shipping agent of a railroad company, to the effect that certain goods had been delivered at the point of destination, were not within the scope of such an agent's employment and relate to a past transaction, those declarations were not admissible in evidence against the company. The more especially was this true when it was apparent that the agent's information as to the matter of delivery must necessarily have been derived from hearsay. Southern Ry. v. Kinchen & Co., 103 Ga. 186, 29 S.E. 816 (1897) (decided under former Civil Code 1895, § 3034).
If, although it appeared that the person whose admissions were introduced was the agent of the defendant "from 1917 to 1924," there was nothing to show when such admissions were made or that the admissions were made during the existence of the agency and within the scope of the agent's authority, a verdict in the plaintiff's favor was without evidence to support the verdict as to such items. Ninth Dist. Agrl. & Mechanical School v. Wofford Power Co., 37 Ga. App. 271, 139 S.E. 916 (1927) (decided under former Civil Code 1910, § 3606).
Answers in another case by "vice-president and southern manager" were not admissible.
- Mere fact that a lumber company sued out interrogatories for its "vice-president and southern manager" in one case would not render the answers admissible in another case as admissions of the company; testifying as a witness was not such a normal part of the lumber business that testimony given by "the vice-president and southern manager" as a witness was impliedly an admission of the lumber company. Robert R. Sizer & Co. v. G. T. Melton & Sons, 129 Ga. 143, 58 S.E. 1055 (1907) (decided under former Civil Code 1895, § 3034).
Only declaration by agent against principal was excluded.
- There was nothing in the evidence rejected to make the evidence objectionable since the evidence was not in the nature of a declaration of an agent "against his principal." The agent was the party to the suit, and not the principal. Shippey Bros. & White v. Owens, 17 Ga. App. 127, 86 S.E. 407 (1915) (decided under former Civil Code 1910, § 3606).
Admission of past wrongful act by employee may not be used against employer.
- Admission of a past wrongful act by a servant or employee, while evidence against the servant or employee, may not be used to charge the master or employer. A.K. Adams & Co. v. Homeyer, 87 Ga. App. 301, 73 S.E.2d 581 (1952) (decided under former Code 1933, § 4-315).
Rules apply to corporations.
- Corporation can only make admissions through the corporation's agents, and the admissions of such agents, acting within the scope of the agent's powers and about the business of the agency, are admissible. Timeplan Loan & Inv. Corp. v. Moorehead, 221 Ga. 648, 146 S.E.2d 748 (1966) (decided under former Code 1933, § 4-315); White v. Front Page, Inc., 133 Ga. App. 749, 213 S.E.2d 32 (1975); Gorlin v. Halpern, 184 Ga. App. 10, 360 S.E.2d 729 (1987) (decided under former Code 1933, § 4-315); 258 Ga. 127, 365 S.E.2d 405 (1988);rev'd on other grounds,(decided under former O.C.G.A. § 10-6-64).
Agency must be shown.
- Admissions of the alleged agent of a corporation are not admissible to bind the corporation unless the agency is shown. Ninth Dist. Agrl. & Mechanical School v. Wofford Power Co., 37 Ga. App. 271, 139 S.E. 916 (1927) (decided under former Civil Code 1910, § 3606).
Declarations as to injury made after accident held inadmissible.
- On the trial of a suit against a railroad company for damages to the plaintiff (who was an employee of the company) caused by the negligence of the coemployees, it was error in the court to permit the plaintiff to testify before the jury that an assistant supervisor had told the plaintiff, after the injury was done, that the company felt itself under obligations to support the plaintiff and the plaintiff's family during the plaintiff's life. East Tenn., Va. & Ga. R.R. v. Duggan, 51 Ga. 212 (1874) (decided under former Code 1873, § 2206).
Reports to the general manager of a company touching a railway accident, and who was to blame therefor, made several days after the event, by the superintendent and the conductor, supported by the affidavit of the latter and of several other employees, are not admissible in evidence to affect the company, whether such reports were exacted and made under standing rules requiring them or under special orders for the particular occasion, no question of notice to the company being involved in the controversy. Carroll v. East Tenn., Va. & Ga. Ry., 82 Ga. 452, 10 S.E. 163, 6 L.R.A. 214 (1889) (decided under former Code 1882, § 2206).
Statements of the engineer three days after plaintiff was hurt as to the condition of the plaintiff's engine, not being part of the res gestae, were clearly inadmissible as declarations or admissions against the railroad company. Central R.R. & Banking Co. v. Maltsby, 90 Ga. 630, 16 S.E. 953 (1892) (decided under former Code 1882, § 2206).
Adjuster's affidavit relied on hearsay and unauthenticated documents.
- Vacancy exclusion did not bar coverage for the vandalism loss to an insured as a matter of law, and the trial court erred in failing to grant summary judgment to it on that issue because the senior field adjuster's affidavit did not include any admissible evidence regarding the status of the renovation work as the affidavit relied on hearsay and unauthenticated documents. R&G Invs. & Holdings, LLC v. Am. Family Ins. Co., 337 Ga. App. 588, 787 S.E.2d 765 (2016), cert. denied, No. S16C1830, 2017 Ga. LEXIS 144 (Ga. 2017).
Declaration of insurance agent as to notice of insured's condition held inadmissible.
- Declaration of an insurance agent that the agent knew the insured had a heart condition and notified the company was not admissible because the admission covered a transaction which did not constitute a part of the res gestae of the negotiation of the sale of insurance to the insured. National Life & Accident Ins. Co. v. Hullender, 86 Ga. App. 438, 71 S.E.2d 754 (1952) (decided under former Code 1933, § 4-315).
Impeachment of absent accountant.
- Because the defendant's accountant had authored a chart regarding billing and finance for two disabled men in the defendant's unlicensed personal care home and the accountant did not testify, the information in the chart was hearsay under O.C.G.A. § 24-8-801(c), and the state was entitled to impeach the accountant's credibility with a former conviction, O.C.G.A. § 24-8-806. Hawkins v. State, 350 Ga. App. 862, 830 S.E.2d 301 (2019).
Court decides whether declaration part of res gestae.
- It is for the trial court to determine whether a given declaration constitutes a part of the res gestae, and nothing more appearing, it is not an abuse of the court's discretion to exclude a declaration by defendant's employee made some 15 or 20 minutes after the event to which it is alleged to relate. A.K. Adams & Co. v. Homeyer, 87 Ga. App. 301, 73 S.E.2d 581 (1952) (decided under former Code 1933, § 4-315).
Instruction held not erroneous.
- Charge of the court that "if in the prosecution of the master's business, the agent makes any representation with reference to the master's business, then such statements are imputable to the master," reasonably construed, restricted the statements of the agent to such portions of the master's business as came within the scope of the agency, and was not error for the assigned reason that the charge did not contain such a restriction. Grant v. Hart, 197 Ga. 662, 30 S.E.2d 271 (1944) (decided under former Code 1933, § 4-315).
b. Proving Agency
Agent may testify as to agency despite death of principal.
- Agent not a party to a suit is a competent witness to show the agent's agency, not disclosed at the time of the transaction in controversy, although the agent's principal may be dead, and although the effect of establishing the agency may be to make the estate liable instead of the agent individually. Lowrys v. Candler, 64 Ga. 236 (1879) (decided under former Code 1873, § 2206).
Agent's mere declarations as to agency are inadmissible.
- While the sworn testimony of an agent is competent evidence of such agency, the mere declarations of such a person are not admissible to prove such agency. Augusta Roofing & Metalworks, Inc. v. Clemmons, 97 Ga. App. 576, 103 S.E.2d 583 (1958) (decided under former Code 1933, § 4-315).
Agent certainly cannot confer authority upon the agent, and evidence of the agent's own statements or admissions, therefore, is not admissible against the agent's principal for the purpose of establishing, enlarging, or renewing the agent's authority, nor can the agent's authority be established by showing that the agent acted as agent, or that the agent claimed to have the powers which the agent assumed to exercise. Waddington v. Stores Mut. Protective Ass'n, 52 Ga. App. 331, 183 S.E. 143 (1935) (decided under former Code 1933, § 4-315).
Other evidence tending to establish agency required.
- When extraneous circumstances, independently of and without regard to the declarations of the alleged agent personally, clearly tend to establish the fact of an agency, the agent's declarations may be admitted and considered as a part of the res gestae of the transaction; but the declarations of an alleged agent, when standing alone, are never admissible to prove the agent's agency. Waddington v. Stores Mut. Protective Ass'n, 52 Ga. App. 331, 183 S.E. 143 (1935) (decided under former Code 1933, § 4-315).
Evidence of alleged agent's conduct as agent and benefit to principal.
- Declarations of one alleged to be an agent or one assuming to be an agent would not, by themselves, be admissible to prove agency, yet when such declarations of the alleged agent are accompanied by other evidence as to the conduct of the person in the character of agent and an acceptance by the alleged principal of the fruits of the agency, such declarations are admissible in evidence as a part of the res gestae, and as such may be considered in the establishment of the agency. Lawhon v. Henshaw, 63 Ga. App. 683, 11 S.E.2d 846 (1940) (decided under former Code 1933, § 4-315).
Agent's declarations are part of res gestae.
- Declaration of an agent is not competent to prove the agency unless the declaration accompanies the transaction or is a part of the res gestae and there is other evidence, direct or circumstantial, which tends to prove the agency, in which event such declaration is admissible in corroboration. King v. Bonnerman, 93 Ga. App. 210, 91 S.E.2d 196 (1956), commented on in, 18 Ga. B.J. 492 (1956) (decided under former Code 1933, § 4-315).
Declaration held not part of res gestae.
- Statement of a city clerk that the city accepted responsibility for an accident on a sidewalk was not part of the res gestae and was not admissible evidence creating a genuine issue of material fact as to the city's duty to maintain the sidewalk. Williams v. City of Social Circle, 225 Ga. App. 746, 484 S.E.2d 687 (1997) (decided under former O.C.G.A. § 10-6-64).
Declarations of Conspirators
1. In General
Coconspirator's exception to the hearsay rule was codified at former O.C.G.A. § 24-3-5. Hunter v. State, 179 Ga. App. 368, 347 S.E.2d 2 (1986) (decided under former O.C.G.A. § 24-3-5).
Defendant responsible for incidental, but unanticipated, acts.
- Because there was evidence that two or more individuals had conspired to accomplish a common design and one or more of the conspirators had done an act which was an incidental and probable consequence of the original design and which the acting conspirator(s) deemed to be expedient to the accomplishment of the common design, the intent and act of the acting conspirator(s) could be imputed to the other active conspirators even though the act may not have been a part of the original design. Therefore, when the common design was to burglarize the victim's house, that the defendant may not have anticipated defendant's coconspirators committing the burglary on the day in question did not remove defendant from the conspiracy, nor did it relieve defendant from responsibility for the incidental and probable acts that defendant's coconspirators felt were expedient to the accomplishment of the common design. Thus, it was not error to present evidence concerning acts of murder committed by the coconspirators that occurred after the coconspirators entered the victim's home. Bruce v. State, 263 Ga. 273, 430 S.E.2d 745 (1993) (decided under former O.C.G.A. § 24-3-5).
Statement must be that of defendant.
- If a hearsay statement was not made by the defendant and could not be imputed to defendant, it could not be admitted to show defendant's motive or intent. Hart v. State, 174 Ga. App. 134, 329 S.E.2d 178 (1985) (decided under former O.C.G.A. § 24-3-5).
Use of translator.
- Use of a translator between the defendant and a witness did not render the witness's testimony about the substance of the translation inadmissible, pursuant to the language conduit rule, as no evidence was presented to the trial court to show that the translator had a motive to distort the translation; moreover, since the translator was a coconspirator, to the extent statements were made directly to the witness in English to further the conspiracy, the witness could testify regarding those statements under the coconspirator exception to the hearsay rule, former O.C.G.A. § 24-3-5. Lopez v. State, 281 Ga. App. 623, 636 S.E.2d 770 (2006) (decided under former O.C.G.A. § 24-3-5).
Intercepted conversation between coconspirators in the back seat of a patrol car was admissible in the trial of one of the coconspirators because the other took the stand and was subject to cross-examination, and because the conversation took place when the coconspirators were actively attempting concealment. Burgeson v. State, 267 Ga. 102, 475 S.E.2d 580 (1996) (decided under former O.C.G.A. § 24-3-5).
Coconspirator not available for cross-examination.
- Testimony by an undercover police officer as to a statement made by a coconspirator during the pendency of the criminal project was not inadmissible simply because the coconspirator was not available for cross-examination since, after the fact of conspiracy is proved, the declarations of any one of the conspirators during the pendency of the project is admissible against all. Clark v. State, 236 Ga. App. 153, 510 S.E.2d 907 (1999) (decided under former O.C.G.A. § 24-3-5).
2. Application
Former statute was applicable in civil as well as criminal cases. Hames v. Shaver, 229 Ga. 412, 191 S.E.2d 861 (1972) (decided under former Code 1933, § 38-306).
Former statute did not render a conspirator incompetent to testify as to facts until the fact of the conspiracy be proved by independent evidence; it simply prohibited a conspirator from testifying as to declarations made by one conspirator outside the presence of, and upon the trial of, another conspirator. Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S. Ct. 654, 50 L. Ed. 2d 632 (1976) (decided under former Code 1933, § 38-306); Ramsey v. State, 165 Ga. App. 854, 303 S.E.2d 32 (1983); Whitton v. State, 178 Ga. App. 862, 344 S.E.2d 703 (1986) (decided under former O.C.G.A. § 24-3-5);(decided under former O.C.G.A. § 24-3-5).
Former O.C.G.A. § 24-3-5 did not exclude the testimony of a coconspirator, only the admission of coconspirator's declarations to third persons. Ramsey v. State, 165 Ga. App. 854, 303 S.E.2d 32 (1983) (decided under former O.C.G.A. § 24-3-5).
Declarations of coconspirator admissible.
- Codefendant's incriminating statements made shortly after the crime occurred, made prior to arrest, and which were noncustodial statements made to acquaintances of codefendant and defendant rather than to police officers, can be characterized as the declaration of a conspirator rather than as a confession and would be admissible against defendant when the requirements of former O.C.G.A. § 24-3-5 have been met. Brown v. State, 262 Ga. 223, 416 S.E.2d 508 (1992) (decided under former O.C.G.A. § 24-3-5).
Testimony by officers regarding an incriminating statement made by one of three coconspirators was admissible even though the officers could not identify the speaker and the admission of the statement did not mandate severance of the parties for trial nor a limiting instruction to the jury that such a "confession" by one codefendant could not be considered against the others. Reid v. State, 210 Ga. App. 783, 437 S.E.2d 646 (1993) (decided under former O.C.G.A. § 24-3-5).
Coconspirator's statement's were admissible against defendant since circumstantial evidence established a conspiracy to kill defendant's wife. Walker v. State, 213 Ga. App. 407, 444 S.E.2d 824 (1994) (decided under former O.C.G.A. § 24-3-5).
Even though a coconspirator may have terminated participation in the conspiracy when, at the request of the police, the coconspirator voluntarily placed a recorded call to another coconspirator, statements made by the latter implicating the defendant in murder and armed robbery were admissible since the second coconspirator was still conspiring to conceal the crime, and statements of the former, offered for the limited purpose of putting the second coconspirator's responses in context, were admissible as original evidence under former O.C.G.A. § 24-3-2. Bundrage v. State, 265 Ga. 813, 462 S.E.2d 719 (1995) (decided under former O.C.G.A. § 24-3-5).
After finding that the evidence was sufficient to establish a prima facie case of conspiracy, the trial court properly ruled that a coconspirator's statements were admissible against defendant. Robertson v. State, 268 Ga. 772, 493 S.E.2d 697 (1997), cert. denied, 523 U.S. 1140, 118 S. Ct. 1845, 140 L. Ed. 2d 1095 (1998) (decided under former O.C.G.A. § 24-3-5).
When the evidence established a prima facie case of conspiracy, codefendant's surreptitiously recorded statements, in which the codefendant implicated defendant in the charged offenses, were admissible. Avery v. State, 269 Ga. 584, 502 S.E.2d 230 (1998) (decided under former O.C.G.A. § 24-3-5).
Statements made by the codefendant to an informant in a recorded call were admissible under former O.C.G.A. § 24-3-5 because at the time of the call the conspiracy was still pending between defendant and the coconspirator to commit the trafficking offense for which they were eventually arrested. Perez v. State, 254 Ga. App. 872, 564 S.E.2d 208 (2002) (decided under former O.C.G.A. § 24-3-5).
Coconspirator's statements were admissible under former O.C.G.A. § 24-3-5 as the statements contained sufficient indicia of reliability to ensure that defendant's Sixth Amendment rights were not violated and afforded the jury a satisfactory basis for evaluating the truth of the statements. Duckett v. State, 259 Ga. App. 814, 578 S.E.2d 524 (2003) (decided under former O.C.G.A. § 24-3-5).
When defendant and the codefendant were charged with murder and related offenses, the denial of defendant's motion to sever defendant's trial from that of the codefendant was not an abuse of discretion because, inter alia, incriminating statements that the codefendant made to police would have been admissible against defendant in a separate trial as the statements of a coconspirator under former O.C.G.A. § 24-3-5. Styles v. State, 279 Ga. 134, 610 S.E.2d 23 (2005) (decided under former O.C.G.A. § 24-3-5).
Witness's statement regarding conversations between defendant and an accomplice were admissible as a conspiracy between defendant and the accomplice because: (1) two masked bandits committed three armed robberies; (2) defendant and the accomplice attempted to use the credit and debit cards obtained in the robberies immediately after the robberies; (3) masks and a gun used in the robberies were found in defendant's car; and (4) defendant told defendant's half-sister that the defendant and the accomplice had committed the robberies. Dillard v. State, 272 Ga. App. 523, 612 S.E.2d 804 (2005) (decided under former O.C.G.A. § 24-3-5).
Denial of defendant's severance motion was not an abuse of discretion because there was no likelihood of confusion as the defendant and the codefendant acted in concert and their defenses were not antagonistic, substantially similar evidence was presented against them, and the codefendant's statements would have been admissible in a separate trial as statements of a coconspirator. Shelton v. State, 279 Ga. 161, 611 S.E.2d 11 (2005) (decided under former O.C.G.A. § 24-3-5).
After defendant and defendant's brother agreed on a plan to murder a victim, and after the crime occurred but before defendant's arrest, the brother told a girlfriend that the brother had "taken care" of the victim, the statement was properly admitted as a declaration of a coconspirator, rather than as a confession. Copprue v. State, 279 Ga. 771, 621 S.E.2d 457 (2005) (decided under former O.C.G.A. § 24-3-5).
Because a codefendant's statements were non-custodial and were made in furtherance of a conspiracy, the trial court did not abuse the court's discretion in finding that the statements were admissible under former O.C.G.A. § 24-3-5 and did not violate Bruton; consequently, defendant failed to demonstrate that counsel's failure to request a severance constituted ineffective assistance. Hankerson v. State, 275 Ga. App. 545, 621 S.E.2d 772 (2005) (decided under former O.C.G.A. § 24-3-5).
Court of Appeals of Georgia held that the coconspirators' testimony was properly allowed by the trial court as most of the testimony at issue was admissible on grounds other than as declarations of coconspirators, and the state made a prima facie showing of the existence of a conspiracy without relying on the coconspirators' declarations. English v. State, 288 Ga. App. 436, 654 S.E.2d 150 (2007) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err in denying the defendant's motion to exclude testimony recounting the out-of-court statements of the codefendant, which were made to friends during the concealment phase of the conspiracy between the defendant and the codefendant, because, on balance, the statements bore sufficient indicia of reliability to be admissible; although the trial court erred by applying a presumption of reliability, its decision to admit the statements was not erroneous because the statements were admissible since they were not testimonial in nature, many of the statements were made in the defendant's presence, and none of the statements sought to deny the codefendant's guilt. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010) (decided under former O.C.G.A. § 24-3-5).
Trial court did not abuse the court's discretion in denying the defendant's motion to sever because there was no danger of confusion when only two defendants were on trial in connection with the same occurrence, and there was no evidence admissible against the defendant that was not admissible against the codefendant; the fact that the codefendant elicited a witness's testimony concerning a coconspirator's out-of-court declarations as coconspirator did not show prejudice, and the witness's testimony was admissible under former O.C.G.A. § 24-3-5. White v. State, 308 Ga. App. 38, 706 S.E.2d 570 (2011) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err in admitting a witness's testimony as to out-of-court declarations by a coconspirator under the exception to the hearsay rule codified at former O.C.G.A. § 24-3-5 because the evidence was sufficient to authorize the jury to find that there was a conspiracy between the defendant and the coconspirator to rob the victim and the victim's companions; evidence independent of the coconspirator's declarations to the witness authorized the jury to infer that the defendant and the coconspirator had entered into a conspiracy to rob the victim because there was evidence that the defendant and the coconspirator were companions, and the defendant and coconspirator were together at the scene on the day of the shooting. White v. State, 308 Ga. App. 38, 706 S.E.2d 570 (2011) (decided under former O.C.G.A. § 24-3-5).
Because the defendant admitted entry into a home, the defendant's statement to a witness, and the victim's in-court identification of the defendant supported the defendant's conviction of armed robbery and burglary under O.C.G.A. §§ 16-7-1(a) and16-8-41(a), the jury could find that a conspiracy existed without regard to a coconspirator's statements under former O.C.G.A. § 24-3-5. Lewis v. State, 311 Ga. App. 54, 714 S.E.2d 732 (2011) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err in admitting the testimony of a state's witness regarding statements made by a codefendant because the testimony was admissible under the conspiracy exception contained in former O.C.G.A. § 24-3-5 since the witness heard the coconspirators' incriminating statements about the crimes during the pendency of the conspiracy, the witness could testify as to what the coconspirators said; the defendant's own admissions and confessions introduced in evidence showed that the defendant had committed the armed robberies and provided the details regarding the defendant's participation in the crimes. Edwards v. State, 312 Ga. App. 141, 717 S.E.2d 722 (2011), cert. denied, No. S12C0363, 2012 Ga. LEXIS 221 (Ga. 2012) (decided under former O.C.G.A. § 24-3-5).
Since there was evidence that the defendant and the co-indictees engaged in a conspiracy to rob the victim, the trial court did not abuse the court's discretion in admitting the co-conspirator's statement. Foster v. State, 290 Ga. 599, 723 S.E.2d 663 (2012) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err in permitting into evidence testimony that the defendant was involved in two murders because the crux of the testimony was a co-indictee's inculpation of the defendant; as such statements were made to the defendant's cousin shortly after the murders but before the criminal enterprise was at an end, the co-indictee's declarations were admissible into evidence against the defendant under former O.C.G.A. § 24-3-5 (see now O.C.G.A. § 24-8-801). Bailey v. State, 291 Ga. 144, 728 S.E.2d 214 (2012) (decided under former O.C.G.A. § 24-3-5).
Trial court's admission of a coconspirator's statements that were made in the presence of an accomplice's mother before the state proved the fact of the conspiracy did not constitute reversible error because inasmuch as a conspiracy could be shown by proof of an agreement between two or more persons to commit a crime, the accomplice's testimony was sufficient to make a prima facie case of conspiracy. James v. State, 316 Ga. App. 406, 730 S.E.2d 20 (2012)(decided under former O.C.G.A. § 24-3-5).
Trial court did not err in allowing a witness to testify that a coindictee told the witness that the defendant and the coindictee had committed robberies because even without evidence of an express agreement between the defendant and the coindictee, there was sufficient evidence of the coindictee's involvement in a conspiracy with the defendant to commit the robberies so as to authorize the admission of the witness's evidence. Lewis v. State, 291 Ga. 273, 731 S.E.2d 51 (2012) (decided under former O.C.G.A. § 24-3-5).
Testimony by the second defendant's girlfriend that the second defendant told the girlfriend that the first defendant had shot a man while the defendants were breaking into cars was admissible under the co-conspirator exception to the hearsay rule. Billings v. State, 293 Ga. 99, 745 S.E.2d 583 (2013).
Trial court did not err in allowing into evidence a co-conspirator's hearsay testimony regarding the statement that the defendant made about having to do something just before the murder because the statement was properly admitted into evidence as a declaration against the defendant from a co-conspirator involved in the murder. Folston v. State, 294 Ga. 778, 755 S.E.2d 803 (2014).
Statements coindictee made to another person in an audiotaped conversation were admissible under former O.C.G.A. § 24-3-5 because the statements were made after the shooting and while the identity of those complicit therein were still being concealed. Hassel v. State, 294 Ga. 834, 755 S.E.2d 134 (2014)(decided under former O.C.G.A. § 24-3-5).
Because the conspiracy set forth in the indictment involved traveling between two apartment complexes for criminal purposes, a co-conspirator's statement to a witness that the co-conspirator saw the defendant walking out of the woods just after hearing a gun shot was admissible. Grissom v. State, 296 Ga. 406, 768 S.E.2d 494 (2015).
Overheard statement of a defendant's coconspirator as the two planned to "hit a lick" and, later, the coconspirator's statement to a girlfriend that the "lick went bad" were both properly admitted under the coconspirator exception to the hearsay rule, former O.C.G.A. § 24-3-5 (see now O.C.G.A. § 24-8-801(d)(2)(E)); furthermore, because the statements were not testimonial, the confrontation clause was not violated. Favors v. State, 296 Ga. 842, 770 S.E.2d 851 (2015).
Because the state established by a preponderance of the evidence that the defendant and others conspired to rob the victim, the testimony of two witnesses was admissible under the co-conspirator exception. Dublin v. State, 302 Ga. 60, 805 S.E.2d 27 (2017).
Trial counsel was not ineffective in failing to object to the co-indictee's statements because those statements were properly admitted as statements in furtherance of a conspiracy because the co-indictee, the defendant, and the other conspirators conspired to shoot the victim; and all of the co-indictee's statements were made either in an effort to direct the defendant to carry out the shooting or to inform the other conspirators of the status of the conspiracy. Thorpe v. State, 304 Ga. 266, 818 S.E.2d 547 (2018).
Fact that the other man's conviction subsequently was reversed based on the doctrines of issue preclusion and collateral estoppel did not negate the evidence presented at the defendant's trial establishing that a conspiracy existed for purposes of the hearsay exception. Womack v. State, 353 Ga. App. 801, 840 S.E.2d 41 (2020).
In the defendant's murder and robbery trial, the defendant's girlfriend's statements to her cousin as she sought refuge in her cousin's house and in letters to the defendant giving the defendant advice and comfort were admissible as statements of a coconspirator in furtherance of the conspiracy under O.C.G.A. § 24-8-801(d)(2)(E). Mosley v. State, 307 Ga. 711, 838 S.E.2d 289 (2020).
Admission of fellow gang member's testimony.
- Defendants' murder convictions were upheld on appeal because the trial court did not err by admitting or refusing to strike a fellow gang member's testimony since the statements were admissible as co-conspirator statements under O.C.G.A. § 24-8-801(d)(2)(E) as the statements were found to have been made in the course of and in furtherance of a conspiracy of being a part of a criminal street gang. Kemp v. State, 303 Ga. 385, 810 S.E.2d 515 (2018).
Recorded statement of coconspirator properly admitted.
- Trial court did not err by allowing the state to introduce a coconspirator's recorded statement against a defendant, which the defendant claimed incriminated the defendant, as the coconspirator testified and was subject to cross-examination. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009) (decided under former O.C.G.A. § 24-3-5).
Codefendant's statements that were recorded in telephone calls between the codefendant and an accomplice were admissible against the defendant as statements of a coconspirator. Moon v. State, 288 Ga. 508, 705 S.E.2d 649 (2011) (decided under former O.C.G.A. § 24-3-5).
When the state is proceeding on a theory of conspiracy, acts and statements of one conspirator in furtherance of the conspiracy are admissible against all other conspirators. Knowles v. State, 159 Ga. App. 239, 283 S.E.2d 51 (1981) (decided under former Code 1933, § 38-306).
Qualification of rule.
- Statutory rule is qualified by the fact that each is responsible for the acts of the others only insofar as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy. Handley v. State, 115 Ga. 584, 41 S.E. 992 (1902) (decided under former Penal Code 1895, § 999); Hill v. Reynolds, 19 Ga. App. 334, 91 S.E. 434 (1917);(decided under former Penal Code 1910, § 1025).
Exculpatory evidence of conspirator not admissible.
- Under former O.C.G.A. § 24-3-5, the declaration of a coconspirator during the pendency of a criminal project is admissible against all coconspirators; however, it may only be used against a conspirator and is not a means by which a conspirator may introduce exculpatory evidence. Dunbar v. State, 205 Ga. App. 867, 424 S.E.2d 43, cert. denied, 205 Ga. App. 899, 424 S.E.2d 43 (1992) (decided under former O.C.G.A. § 24-3-5).
Statements during concealment phase of conspiracy.
- O.C.G.A. § 24-8-801(d)(2)(E) specifically provides that statements made during and in furtherance of the conspiracy are admissible, including statements made during the concealment phase; the Georgia Supreme Court has held that for purposes of the hearsay exception, a conspiracy is deemed to endure so long as the parties thereto attempt to conceal either the crime or the identity of the perpetrators. Lawrence v. State, 342 Ga. App. 396, 802 S.E.2d 859 (2017), cert. denied, No. S18C0094, 2018 Ga. LEXIS 322 (Ga. 2018).
Statements made during concealment phase of conspiracy admissible.
- Statements made by a coconspirator to police were admissible as made during the concealment phase of the conspiracy, even though made before evidence establishing conspiracy had been introduced. Morgan v. State, 206 Ga. App. 132, 424 S.E.2d 92 (1992) (decided under former O.C.G.A. § 24-3-5).
Properly authenticated letters written by one of the three defendants charged in a conspiracy involving an armed robbery and related offense were properly admitted under the exception to the rule against hearsay evidence that statements made by a coconspirator during the concealment phase of the conspiracy were admissible against all other coconspirators. Williamson v. State, 285 Ga. App. 779, 648 S.E.2d 118 (2007) (decided under former O.C.G.A. § 24-3-5).
Applies to acts.
- Former statute applied to the acts of the conspirators as well as to the conspirators' declarations. Thompson v. State, 58 Ga. App. 593, 199 S.E. 568 (1938) (decided under former Code 1933, § 38-306).
Agency theory.
- Conspirator's declaration in furtherance of the conspiracy may be used against another conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both. Park v. Huff, 506 F.2d 849 (5th Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40 (1975) (decided under former Code 1933, § 38-306).
Not applicable to direct testimony.
- It was the declarations of coconspirators related by another witness that are dealt with in the former statute, and not the direct testimony of an alleged coconspirator on the trial. Sutton v. State, 237 Ga. 423, 228 S.E.2d 820 (1976) (decided under former Code 1933, § 38-306).
Indictment not required.
- Former statute did not include any condition precedent of indictment of a coconspirator before the former statute became applicable. Baker v. State, 17 Ga. App. 279, 86 S.E. 530 (1915) (decided under former Penal Code 1910, § 1025); Cook v. State, 22 Ga. App. 770, 97 S.E.2d 264 (1918); Porterfield v. State, 137 Ga. App. 449, 224 S.E.2d 94 (1976) (decided under former Penal Code 1910, § 1025); Baugher v. State, 212 Ga. App. 7, 440 S.E.2d 768 (1994), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020);(decided under former Code 1933, § 38-306);(decided under former O.C.G.A. § 24-3-5).
Membership in conspiratorial unit required.
- When the statements of a defendant were recounted to a third person by an individual who was part of the conspiratorial unit, the statements were admissible. Mullins v. State, 147 Ga. App. 337, 248 S.E.2d 706 (1978), aff'd, 249 Ga. 411, 290 S.E.2d 472 (1982) (decided under former Code 1933, § 38-306); Knox v. State, 156 Ga. App. 777, 275 S.E.2d 371 (1980);(decided under former Code 1933, § 38-306).
Undisclosed conspirators.
- Acts and declarations of undisclosed conspirators, looking to the concealment of identity and the suppression of evidence, are admissible against other conspirators. Mitchell v. State, 86 Ga. App. 292, 71 S.E.2d 756 (1952) (decided under former Code 1933, § 38-306).
Statements out of defendant's presence.
- Conversation overheard between coindictees out of the presence of the defendant is admissible. Hutchins v. State, 229 Ga. 804, 194 S.E.2d 442 (1972) (decided under former Code 1933, § 38-306).
Once some evidence of a joint criminal undertaking has been presented, the out-of-court statements of one wrongdoer, are admissible against the other even though that other is separately tried, and even though the statements were made outside the other's presence. Davis v. State, 129 Ga. App. 796, 201 S.E.2d 345 (1973) (decided under former Code 1933, § 38-306).
Indicia of reliability required for admissibility are that the statements be non-narrative, that the declarant is shown by the evidence to know whereof the declarant speaks, that the witness is not apt to be proceeding on faulty recollection, and that the circumstances show that the declarant had no apparent reason to lie to the witness; it is not required that all of the indicia be present for the statement to be admissible. Timberlake v. State, 158 Ga. App. 125, 279 S.E.2d 283 (1981) (decided under former O.C.G.A. § 24-3-5).
When statement inadmissible.
- Statement was inadmissible under former O.C.G.A. § 24-3-5 when the statement implicates the defendant and when the statement was not accompanied by an indicia of reliability such as the spontaneity of the statement and the fact that the statement was against the speaker's penal interest. Boswell v. State, 158 Ga. App. 727, 282 S.E.2d 196 (1981) (decided under former O.C.G.A. § 24-3-5).
Admission of a coconspirator's hearsay statement that defendant was the "triggerman" in a robbery violated the confrontation clause, and could not be deemed harmless error since the hearsay lacked sufficient indicia of reliability; the statement was not res gestae, was not given under oath, was not against penal interest, and was exculpatory. Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652 (1992) (decided under former O.C.G.A. § 24-3-5).
Statement made five months before crime.
- Witness's testimony as to coconspirator's statement offering money for the killing of coconspirator's ex-husband made some five months prior to the killing was admissible even though witness/coconspirator expressed disinterest in the offer at that time. Blalock v. State, 250 Ga. 441, 298 S.E.2d 477 (1983) (decided under former O.C.G.A. § 24-3-5).
Wire tap conversations of other conspirators to which appellants had not been parties were admissible under former O.C.G.A. § 24-3-5. Gilstrap v. State, 162 Ga. App. 841, 292 S.E.2d 495 (1982), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-3-5).
Telephone conversations.
- Witness's hearsay testimony about the defendant's statements to the witness on the telephone shortly after a robbery and shooting in the witness's front yard was admissible against the co-defendant in their joint trial under the co-conspirator exception; however, the defendant's statements exonerating the co-defendant during the defendant's plea hearing were not admissible to impeach the telephone statements. Esprit v. State, 305 Ga. 429, 826 S.E.2d 7 (2019).
Tapes and transcripts admissible when testimony admissible.
- Trial court did not err in admitting in evidence two tapes of a coconspirator's conversations with defendants and the transcripts thereof because the transcripts were the result of a confession made by the coconspirator, after one coconspirator heard defendants' statements and could have testified to what they said. The coconspirator's voluntary participation in the recording of the conversations does not alter their basic admissibility as the lawful electronic interception of the conversations only created a recording of what the coconspirator could have related as a witness. Ramsey v. State, 165 Ga. App. 854, 303 S.E.2d 32 (1983) (decided under former O.C.G.A. § 24-3-5).
Statements attributable to coconspirator who refused to testify properly admitted as declarations of coconspirator during course of conspiracy. Owens v. State, 251 Ga. 313, 305 S.E.2d 102 (1983) (decided under former O.C.G.A. § 24-3-5).
Separate trials.
- Statutory rule is true even though the person against whom the declaration is introduced is being tried separately from the person making the declaration. Coleman v. State, 141 Ga. 731, 82 S.E. 228 (1914) (decided under former Penal Code 1910, § 1025); Tate v. State, 41 Ga. App. 300, 152 S.E. 609 (1930); Driggers v. State, 51 Ga. App. 370, 180 S.E. 619 (1935) (decided under former Penal Code 1910, § 1025); Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937); West v. State, 85 Ga. App. 220, 68 S.E.2d 611 (1952) (decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Testimony admissible as coconspirator's statement made during pendency of conspiracy. Lawrence v. State, 187 Ga. App. 211, 369 S.E.2d 531 (1988) (decided under former O.C.G.A. § 24-3-5).
When objected-to statements were made during the pendency of and in furtherance of a conspiracy, they were not admitted as similar transactions or for the sole purpose of showing bad character, but were relevant and material to the issues in the case. Kitchens v. State, 235 Ga. App. 349, 509 S.E.2d 391 (1998) (decided under former O.C.G.A. § 24-3-5).
Declarations were properly admitted in the following cases.
- See Campbell v. State, 202 Ga. 705, 44 S.E.2d 903 (1947) (decided under former Code 1933, § 38-306); Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (1980); Gay v. State, 249 Ga. 747, 294 S.E.2d 476 (1982) (decided under former Code 1933, § 38-306); Manuel v. State, 245 Ga. App. 565, 538 S.E.2d 472 (2000);(decided under former O.C.G.A. § 24-3-5);(decided under former O.C.G.A. § 24-3-5).
Note-passing inmate was properly permitted to relate to the jury statements made by other inmates when the inmates were discussing what to do about the possibility the victim was going to tell the authorities about their effort to escape as the coconspiratorial statements were made during the pendency of the conspiracy and the statements were presumed to be sufficiently reliable to satisfy the confrontation clause's requirement of trustworthiness; the admission of the statements was not at odds with Crawford v. Washington, 541 U.S. 36 (2004), because statements admissible pursuant to the hearsay exception permitting the use of statements made in furtherance of a conspiracy were not testimonial. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err by admitting the recorded statement of a witness under circumstances in which, at trial, the witness recanted the statement, claiming the statement was fabricated under pressure from police; in the statement, the witness stated that the defendant bragged about the crime, reporting that the defendant shot the victim and predicting that the eyewitnesses were too intoxicated to be able to identify them. The statement corroborated other details, related to the witness by the codefendants regarding the crime itself and the subsequent attempts to dispose of instrumentalities of the crime, and the statement was properly admitted as evidence of statements made by coconspirators during the pendency of the criminal project. Thorpe v. State, 285 Ga. 604, 678 S.E.2d 913 (2009) (decided under former O.C.G.A. § 24-3-5).
Witness's hearsay testimony about the defendant's statements to the witness on the telephone shortly after a robbery and shooting in the witness's front yard was admissible against a co-defendant, the witness's cousin, under the co-conspirator exception to the hearsay rule. Esprit v. State, 305 Ga. 429, 826 S.E.2d 7 (2019).
Writings were admissible.
- See Bragg v. State, 52 Ga. App. 69, 182 S.E. 403 (1935) (letter written by one coconspirator to other relating to crime) (decided under former Code 1933, § 38-306); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979) (written directions to witness from coconspirator) (decided under former Code 1933, § 38-306); Farley v. State, 155 Ga. App. 188, 270 S.E.2d 361 (1980) (trial transcript) (decided under former Code 1933, § 38-306).
Error to allow into deliberations.
- All writings introduced in evidence in lieu of testimony from the witness stand, such as interrogatories, depositions, dying declarations, and confessions of guilt of a defendant or of an alleged coconspirator, which depend entirely for their value on the credibility of the maker, should not be in the possession of the jury during their deliberations, thus, when defendants' and alleged coconspirators' signed statements are delivered to the jury, over timely objections, a new trial must be granted. Royals v. State, 208 Ga. 78, 65 S.E.2d 158 (1951) (decided under former Code 1933, § 38-306).
No ineffective counsel since statements by coconspirator admissible.
- Defendant failed to show that trial counsel was ineffective in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XIV, as statements made by a coconspirator were admissible under former O.C.G.A. § 24-3-5, and the failure of counsel to raise a non-meritorious hearsay objection did not constitute ineffective legal representation. Jones v. State, 279 Ga. 854, 622 S.E.2d 1 (2005) (decided under former O.C.G.A. § 24-3-5).
In a murder case, trial counsel did not render ineffective assistance in failing to object on confrontation grounds to the admission of a witness's testimony regarding the jailhouse statement of the co-defendant, who did not testify at trial, because the witness's testimony regarding the co-defendant's statement was admissible under the hearsay exception for statements of co-conspirators because the state clearly presented evidence of an agreement to kill the victim; an eyewitness positively identified the co-defendant as the person that the eyewitness had seen commit the shooting; and the statement was made during the pendency of the conspiracy. Franklin v. State, 298 Ga. 636, 784 S.E.2d 359 (2016)(decided under former O.C.G.A. § 24-3-5).
No ineffective assistance of counsel.
- Defendant did not receive ineffective assistance of counsel due to counsel's failure to object to hearsay testimony of a note-passing inmate as the hearsay statements fell within the exception permitting hearsay statements made by coconspirators during the pendency of the conspiracy; the failure to object did not constitute deficient performance. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006) (decided under former O.C.G.A. § 24-3-5).
Contrary to the defendant's contention, the record did show that the defendant's trial lawyer offered a hearsay objection to some of the women's hearsay testimony at trial, and to the extent that the trial lawyer failed to object, it would have been reasonable for the trial lawyer to conclude that the testimony was admissible under the co-conspirator exception and, therefore, unobjectionable on hearsay grounds. Jordan v. State, 307 Ga. 450, 836 S.E.2d 86 (2019).
3. Conspiracy Defined
a. In General
Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. Kennemore v. State, 222 Ga. 362, 149 S.E.2d 791 (1966) (decided under former Code 1933, § 38-306).
Conspiracy is a corrupt agreement between two or more persons to do an unlawful act. Park v. State, 224 Ga. 467, 162 S.E.2d 359, cert. denied, 393 U.S. 980, 89 S. Ct. 449, 21 L. Ed. 2d 441 (1968) (decided under former Code 1933, § 38-306).
To have a conspiracy, there must be an agreement between two or more persons to commit a crime. Kilgore v. State, 251 Ga. 291, 305 S.E.2d 82 (1983) (decided under former O.C.G.A. § 24-3-5).
Motive to commit crime.
- Criminal project referred to in former statute included the creation of the original motive to commit the crime, the plan to commit the crime and the carrying out of the plan. The motive and the plan could be created first in the mind of only one of the coconspirators and prior to the formation of the conspiracy itself. Knight v. State, 239 Ga. 594, 238 S.E.2d 390 (1977) (decided under former Code 1933, § 38-306).
Common design.
- Common design which is the essence of conspiracy may be made to appear when the parties steadily pursue the same object, whether acting separately or together by common or different means, ever leading to the same unlawful result. Park v. Huff, 506 F.2d 849 (5th Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40 (1975) (decided under former Code 1933, § 38-306).
b. Proof of Conspiracy
Conspiracy may be proved by circumstantial as well as by direct evidence. Darden v. State, 172 Ga. 590, 158 S.E. 414 (1931) (decided under former Penal Code 1910, § 1025); Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937); Park v. State, 224 Ga. 467, 162 S.E.2d 359 (decided under former Code 1933, § 38-306); 393 U.S. 980, 89 S. Ct. 449, 21 L. Ed. 2d 441 (1968); Sentell v. State, 227 Ga. 153, 179 S.E.2d 234 (1971), cert. denied,(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Existence of a conspiracy may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. Park v. State, 224 Ga. 467, 162 S.E.2d 359, cert. denied, 393 U.S. 980, 89 S. Ct. 449, 21 L. Ed. 2d 441 (1968) (decided under former Code 1933, § 38-306); Weatherington v. State, 139 Ga. App. 795, 229 S.E.2d 676 (1976);(decided under former Code 1933, § 38-306).
Existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence. Harris v. State, 255 Ga. 500, 340 S.E.2d 4 (1986) (decided under former O.C.G.A. § 24-3-5).
State must make a prima facie showing of a conspiracy by aliunde proof. Weatherington v. State, 139 Ga. App. 795, 229 S.E.2d 676 (1976) (decided under former Code 1933, § 38-306).
Conspiracy itself must be proved by evidence aliunde such declarations, and the declarations are not admissible unless the conspiracy is prima facie shown by such aliunde evidence. Park v. State, 224 Ga. 467, 162 S.E.2d 359, cert. denied, 393 U.S. 980, 89 S. Ct. 449, 21 L. Ed. 2d 441 (1968) (decided under former Code 1933, § 38-306); Sentell v. State, 227 Ga. 153, 179 S.E.2d 234 (1971); Park v. Huff, 506 F.2d 849 (5th Cir.) (decided under former Code 1933, § 38-306); 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40 (1975);cert. denied,(decided under former Code 1933, § 38-306).
In order to establish a conspiracy it is not necessary that the aliunde proof shall itself warrant a verdict, slight evidence connecting the defendant with the crime will be sufficient. Weatherington v. State, 139 Ga. App. 795, 229 S.E.2d 676 (1976) (decided under former Code 1933, § 38-306).
And prove existence beyond a reasonable doubt.
- In order to properly admit the declaration of an alleged coconspirator made during a criminal project, there must be sufficient evidence aliunde the declaration to establish the conspiracy at least prima facie and prove the declaration's existence beyond a reasonable doubt. Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937) (decided under former Code 1933, § 38-306); Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979);(decided under former Code 1933, § 38-306).
While the rule is well established that the conspiracy itself cannot be shown from the acts and declarations of one coconspirator in the absence of the others (this rule being necessary to prevent the finding of the fact of the conspiracy from such acts and declarations alone), yet the acts and declarations made in carrying out the conspiracy are relevant. Bragg v. State, 52 Ga. App. 69, 182 S.E. 403 (1935) (decided under former Code 1933, § 38-306).
Participation in a criminal conspiracy may be shown by circumstantial as well as direct evidence. Park v. Huff, 506 F.2d 849 (5th Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 38, 46 L. Ed. 2d 40 (1975) (decided under former Code 1933, § 38-306).
Declarations of coconspirator admissible.
- State had to make a prima facie showing of the existence of a conspiracy, without regard to the declarations of the coconspirators, in order to admit their out-of-court declarations; trial judge could admit testimony by coconspirators before the conspiracy had been proved, provided the conspiracy's existence was ultimately shown at trial. Belmar v. State, 252 Ga. App. 264, 555 S.E.2d 902 (2001) (decided under former O.C.G.A. § 24-3-5).
Hearsay statements made by each defendant implicating their coconspirators in the crimes were properly admitted against all the defendants as coconspirator's statements under former O.C.G.A. § 24-3-5; a conspiracy among the defendants was shown to have existed, as the evidence indicated that the victim's house was a drug house, that the first defendant's car was seen on the scene around the time of the murder, and that the second defendant later possessed drugs and money in a hotel room shortly after the crimes, and although the defendants all made incriminating statements in jail, the statements were made during the concealment phase as the defendants were still hiding their identities from the police. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91 (2007) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err by permitting a witness to testify regarding a conversation the witness participated in which took place on the day after the crime in which the defendant and the codefendants made certain admissions concerning the crimes at issue; hearsay statements of coconspirators were admissible when the state at some point before the close of evidence established a prima facie case of conspiracy independent of the coconspirator statement. The state presented ample evidence in the form of testimony from two witnesses present with the defendant and the codefendants in the hours immediately prior to the crimes that the three, together with one of the witnesses, planned to commit a robbery that night, and the statement was clearly within the concealment phase of the conspiracy. Thorpe v. State, 285 Ga. 604, 678 S.E.2d 913 (2009) (decided under former O.C.G.A. § 24-3-5).
Trial court did not err by admitting incriminating statements a codefendant made to witnesses because the codefendant's statements were made during the pendency of the conspiracy and were admissible against the defendant under the coconspirator exception to the hearsay rule, former O.C.G.A. § 24-3-5; the admission of the codefendant's statements to lay witnesses during the concealment phase of the conspiracy did not violate the confrontation clause because the codefendant's statements were not testimonial. Allen v. State, 288 Ga. 263, 702 S.E.2d 869 (2010) (decided under former O.C.G.A. § 24-3-5).
Statements made by defendant's nephew during the time the nephew, defendant, and another man conspired to traffic in cocaine were admissible against the defendant in defendant's trial for trafficking in cocaine as the state first proved the existence of the conspiracy and defendant's involvement in the conspiracy. Smith v. State, 253 Ga. App. 131, 558 S.E.2d 455 (2001) (decided under former O.C.G.A. § 24-3-5).
Statement made prior to formation of conspiracy.
- Trial court did not err in admitting testimony of a coconspirator about a second coconspirator's statements to another regarding a plan to steal money from a house with the help of friends, including the defendant, as the statement was admissible under former O.C.G.A. § 24-3-5 (see now O.C.G.A. § 24-8-801(d)(2)(E)), even if the statement was made prior to the formation of the conspiracy. Peoples v. State, 295 Ga. 44, 757 S.E.2d 646 (2014)(decided under former O.C.G.A. § 24-3-5).
When evidence independent of the testimony of the coconspirators is not sufficient to show a conspiracy, it was error to admit in evidence testimony as to declarations of the alleged conspirators to charge the jury upon the subject of conspiracy and to overrule the grounds of those motions for new trial involving conspiracy. Caldwell v. State, 227 Ga. 703, 182 S.E.2d 789 (1971) (decided under former Code 1933, § 38-306).
Evidence insufficient.
- Evidence of conspiracy between the defendant and a codefendant was not sufficient to render admissible against the former evidence of declarations by the latter. Johnson v. State, 186 Ga. 324, 197 S.E. 786 (1938) (decided under former Code 1933, § 38-306).
Trial court did not err by denying a defendant's motion for a new trial with regard to the defendant's convictions for armed robbery and possession of a firearm based on the trial court erroneously admitting the testimony of a witness, who was a long-time acquaintance of the co-indictee that the co-indictee had bragged about committing the robbery with the defendant as, although the state failed to establish a prima facie case of conspiracy, the admission was harmless in view of the victims' consistent eyewitness testimony implicating the defendant in the robbery and defendant's admission of the intention to rob the store. Fisher v. State, 295 Ga. App. 501, 672 S.E.2d 476 (2009) (decided under former O.C.G.A. § 24-3-5).
Evidence was sufficient to show conspiracy in the following cases.
- See Patterson v. State, 199 Ga. 773, 35 S.E.2d 504 (1945) (decided under former Code 1933, § 38-306); Cowart v. State, 92 Ga. App. 253, 88 S.E.2d 208 (1955); Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983) (decided under former Code 1933, § 38-306); 252 Ga. 418, 314 S.E.2d 210 (1984); 469 U.S. 873, 105 S. Ct. 230, 83 L. Ed. 2d 159 (1984), aff'd, Dalton v. State, 237 Ga. App. 217, 513 S.E.2d 745 (1999), cert. denied, Freeman v. State, 273 Ga. 137, 539 S.E.2d 127 (2000) (decided under former O.C.G.A. § 24-3-5);(decided under former O.C.G.A. § 24-3-5);(decided under former O.C.G.A. § 24-3-5).
Because the state proved that two masked bandits committed three armed robberies, that defendant and an accomplice attempted to use the credit and debit cards obtained in the robberies immediately after the robberies, that masks and a gun used in the robberies were found in defendant's car, and that defendant told defendant's half-sister that defendant and the accomplice had committed the robberies, the evidence was sufficient to establish the fact of a conspiracy between defendant and the accomplice sufficient to admit declarations by the accomplice at defendant's criminal trial. Dillard v. State, 272 Ga. App. 523, 612 S.E.2d 804 (2005) (decided under former O.C.G.A. § 24-3-5).
Testimony of two witnesses as to statements made by coconspirators was evidence independent of statements made to an inmate witness, and was sufficient to support a jury's finding of a conspiracy; therefore, a trial court did not err in allowing the inmate witness to testify as to statements made by one of the perpetrators of the crime to the inmate witness while both were incarcerated. Dickerson v. State, 280 Ga. App. 29, 633 S.E.2d 367 (2006) (decided under former O.C.G.A. § 24-3-5).
Evidence adduced at trial provided sufficient circumstantial evidence of a conspiracy to possess methamphetamine with intent to distribute such that it was proper to allow a coconspirator's hearsay statements implicating the defendant in a conspiracy to distribute methamphetamine and other narcotics, including evidence that the parties lived in the same house and that the coconspirator put narcotics in the defendant's pocket as police raided the house. Dockery v. State, 308 Ga. App. 502, 707 S.E.2d 889 (2011) (decided under former O.C.G.A. § 24-3-5).
4. Pendency of Criminal Project
a. In General
Though crime previously committed.
- Statement by the defendant coconspirator made after the actual commission of the crime, but while the conspiracy continued is admissible. Evans v. State, 222 Ga. 392, 150 S.E.2d 240, cert. denied, 385 U.S. 953, 87 S. Ct. 336, 17 L. Ed. 2d 231 (1966) (decided under former Code 1933, § 38-306); Scott v. State, 151 Ga. App. 495, 260 S.E.2d 401 (1979);(decided under former Code 1933, § 38-306).
Conspiracy must not have ended.
- "Acts, doings and sayings of the coconspirators" made before or after the crime are admissible as original evidence against all defendants so long as they are made before the evidence shows that the conspiracy has ended. Price v. State, 239 Ga. 439, 238 S.E.2d 24 (1977) (decided under former Code 1933, § 38-306).
Pendency of the criminal project includes the accomplishment of the crime itself plus concealment of the crime or the identity of the perpetrators. Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976) (decided under former Code 1933, § 38-306); Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976); Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979) (decided under former Code 1933, § 38-306); Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979); Scott v. State, 151 Ga. App. 495, 260 S.E.2d 401 (1979) (decided under former Code 1933, § 38-306); Smith v. State, 244 Ga. 814, 262 S.E.2d 116 (1979);(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Rule is that so long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other. Evans v. State, 222 Ga. 392, 150 S.E.2d 240, cert. denied, 385 U.S. 953, 87 S. Ct. 336, 17 L. Ed. 2d 231 (1966) (decided under former Code 1933, § 38-306); Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) (decided under former Code 1933, § 38-306); Mills v. State, 236 Ga. 365, 223 S.E.2d 725 (1976); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (decided under former Code 1933, § 38-306); 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978); Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (decided under former Code 1933, § 38-306); 449 U.S. 988, 101 S. Ct. 523, 66 L. Ed. 2d 285 (1980);cert. denied,(decided under former Code 1933, § 38-306);vacated,(remanded for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980)) (decided under former Code 1933, § 38-306).
Declarations during concealment admissible.
- So long as the concealment phase of the conspiracy continues, declarations of either of the conspirators are admissible against the other. Timberlake v. State, 158 Ga. App. 125, 279 S.E.2d 283 (1981) (decided under former O.C.G.A. § 24-3-5).
Statements made by the person with whom the defendant conspired to commit murder, made during the concealment phase of that conspiracy, were admissible against the defendant. Cromer v. State, 253 Ga. 352, 320 S.E.2d 751 (1984) (decided under former O.C.G.A. § 24-3-5).
Argument that the co-indictee's statements to a cell mate were not made during the concealment phase of the conspiracy was without merit as the concealment phase was ongoing because the co-indictee's statements were not made to police, the investigation was ongoing, and the other conspirators were still at-large; thus, the co-indictee's statements to the cell mate were admissible. Grimes v. State, 296 Ga. 337, 766 S.E.2d 72 (2014).
In the defendant's trial for malice murder, because the state made a prima facie showing of conspiracy among the defendant and four others to rob and kill the three victims, which was ongoing for purposes of concealing the crime at the time one conspirator divulged details of the crime scene to the conspirator's spouse, the spouse's statements to police were admissible. Lord v. State, 304 Ga. 532, 820 S.E.2d 16 (2018).
Declarations made in furtherance of conspiracy admissible.
- Based on the detective's testimony that the co-indictee's cell mate never told the police that the co-indictee had sent the cell mate to talk to the police, it was not clearly erroneous for the trial court to conclude that the cell mate was not sent by the co-indictee to talk to the police; the argument that the co-indictee's statements were not in the furtherance of a conspiracy because they were made with the intent that they be communicated to authorities was without merit; and the co-indictee's statements to the cell mate were admissible. Grimes v. State, 296 Ga. 337, 766 S.E.2d 72 (2014).
Agreement not to discuss case ever again.
- Conspiracy continues during the concealment phase, after crime has been committed, and when evidence was presented that defendants agreed not to discuss case ever again and crime went unsolved for over two years, concealment phase lasted throughout that time. Fortner v. State, 248 Ga. 107, 281 S.E.2d 533 (1981) (decided under former O.C.G.A. § 24-3-5).
Co-conspirator's statement not made in furtherance of conspiracy.
- Trial court's determination that certain of the statements by the co-defendant were not made "in furtherance of the conspiracy" was supported by the evidence and was not clearly erroneous and, thus, the trial court did not abuse the court's discretion in partially granting the defendant's motion in limine to exclude statements that were made implicating a co-conspirator but not in furtherance of the conspiracy. State v. Wilkins, 302 Ga. 156, 805 S.E.2d 868 (2017).
Hit man's statement not made in furtherance of conspiracy.
- Statements the hit man made to the hit man's girlfriend should not have been admitted into evidence because the statements did not further the conspiracy but were the hit man telling the girlfriend what the hit man planned to do and then telling the girlfriend about the crime the hit man committed. State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Statement made during concealment phase of conspiracy.
- Trial court did not err by allowing the testimony of the defendant's girlfriend pursuant to O.C.G.A. § 24-8-801(d)(2)(E) because the statement defendant made to the girlfriend was made during the concealment phase of the conspiracy and was admissible even if the girlfriend who testified about the statement was not part of the conspiracy. Lawrence v. State, 342 Ga. App. 396, 802 S.E.2d 859 (2017), cert. denied, No. S18C0094, 2018 Ga. LEXIS 322 (Ga. 2018).
Declarations made during conspiracy, including concealment stage, admissible.
- Under former O.C.G.A. § 24-3-5, the declarations of a conspirator, made during the course of a conspiracy, including the concealment stage, are admissible against coconspirators. Wilbanks v. State, 251 Ga. App. 248, 554 S.E.2d 248 (2001) (decided under former O.C.G.A. § 24-3-5).
Statements by defendant's coconspirator to a third person regarding defendant's actions during the criminal project and during the concealment phase bore sufficient indicia of reliability to be admissible in defendant's criminal trial, pursuant to former O.C.G.A. § 24-3-5, and any objection on the grounds of the confrontation clause under U.S. Const., amend. 6 or on hearsay grounds would have lacked merit; accordingly, defendant's counsel was not ineffective for failing to object to the admission thereof. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485 (2005) (decided under former O.C.G.A. § 24-3-5).
At the time a coconspirator made statements to friends, the coconspirator had not confessed to police or been arrested, and in those statements, was concealing the coconspirator's role in the conspiracy. The trial court therefore did not abuse the court's discretion by allowing the coconspirator's statements into evidence against the defendant. Keating v. State, 309 Ga. App. 804, 711 S.E.2d 327 (2011) (decided under former O.C.G.A. § 24-3-5).
Indicia of reliability which are determinative of whether a statement may be placed before the jury require that the statement by the declarant be non-narrative; that the declarant is shown by the evidence to know whereof the declarant speaks; that the witness is not apt to be proceeding on faulty recollection; and that the circumstances show that the declarant had no apparent reason to lie to the witness. Not all of the indicia need be present to support admissibility of the statement. Waters v. State, 174 Ga. App. 916, 331 S.E.2d 893 (1985) (decided under former O.C.G.A. § 24-3-5).
Coconspirator's offer to share theft proceeds.
- Trial court properly admitted the testimony of coconspirator's sister recounting another coconspirator's offer to share the theft proceeds with her if she would keep silent about the matter. Truitt v. State, 174 Ga. App. 687, 331 S.E.2d 64 (1985) (decided under former O.C.G.A. § 24-3-5).
Accomplices.
- Acts, sayings, and conduct of one accomplice during the pendency of a conspiracy, not alone in its perpetration but also in its subsequent concealment, are admissible against another accomplice. Carter v. State, 106 Ga. 372, 32 S.E. 345, 71 Am. St. R. 262 (1899) (decided under former Penal Code 1895, § 999); Bragg v. State, 52 Ga. App. 69, 182 S.E. 403 (1935); Thompson v. State, 58 Ga. App. 593, 199 S.E. 568 (1938) (decided under former Code 1933, § 38-306); Mitchell v. State, 86 Ga. App. 292, 71 S.E.2d 756 (1952); Hutchins v. State, 229 Ga. 804, 194 S.E.2d 442 (1972) (decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Telephone calls in furtherance of conspiracy.
- Trial court did not err when the court admitted the transcripts of phone calls between the defendant and the co-conspirators because such evidence did not constitute hearsay as the statements fell under the exception to the hearsay rule under O.C.G.A. § 24-8-801(d)(2)(E) given that the statements over the telephone were made in furtherance of the conspiracy. Hernandez-Garcia v. State, 322 Ga. App. 455, 745 S.E.2d 706 (2013).
b. Termination of Conspiracy
Only the admissions made pending the conspiracy or fraudulent scheme should be considered, and not those made after the conspiracy was terminated or the fraudulent scheme executed. Turner v. State, 43 Ga. App. 799, 160 S.E. 509 (1931) (decided under former Penal Code 1910, § 1025).
Whether conspiracy ended crucial question.
- Crucial question in determining whether the statement of one conspirator may be used as evidence of guilt against another conspirator is whether the conspiracy had ended at the time the statement was made. Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975) (decided under former Code 1933, § 38-306).
Conspiracy deemed continuing until ultimate purpose accomplished.
- If the conspiracy contemplates actions beyond an initial criminal act such as concealment, the conspiracy is deemed in progress until its ultimate purpose is accomplished, and admissions made by one conspirator while attempting to conceal the case may be admissible against the other conspirators. Knight v. State, 239 Ga. 594, 238 S.E.2d 390 (1977) (decided under former Code 1933, § 38-306).
In legal contemplation, the enterprise may not be at an end so long as the concealment of the crime or the identity of all the conspirators has not been disclosed. Mitchell v. State, 86 Ga. App. 292, 71 S.E.2d 756 (1952) (decided under former Code 1933, § 38-306).
Arrest alone does not necessarily end.
- Conspiracy or the concealment phase of the conspiracy does not necessarily end just because one or more participants have been arrested and jailed. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979) (decided under former Code 1933, § 38-306).
Conspiracy does not necessarily end simply because one or more of the conspirators have been arrested. Chews v. State, 187 Ga. App. 600, 371 S.E.2d 124 (1988) (decided under former O.C.G.A. § 24-3-5).
Even though one codefendant had been arrested when a tape recording of a conversation between that codefendant and another was made, the tape was admissible since the arrest did not end the conspiracy and the substance of the recorded conversation indicated that the concealment phase of the conspiracy was ongoing. Cromwell v. State, 218 Ga. App. 481, 462 S.E.2d 388 (1995) (decided under former O.C.G.A. § 24-3-5).
Pre-arrest threat to coconspirator was in furtherance of conspiracy.
- In the defendant's murder trial, evidence that the defendant had threatened a coconspirator if the coconspirator cooperated in the investigation a few months after the murders but before any arrests were made was in furtherance of the conspiracy because it was designed to keep law enforcement from discovering the murder and was, therefore, admissible under O.C.G.A. § 24-8-801(d)(2)(E). Jones v. State, 305 Ga. 750, 827 S.E.2d 879 (2019).
Evidence admissible from concealment phase.
- As the conspiracy between the two brothers to conceal their roles in two murders had not terminated when one brother wrote a letter incriminating the other, that letter was clearly admissible against the second brother because the letter concerned the murders and was written during the concealment phase of their conspiracy as to those crimes. Arevalo v. State, 275 Ga. 392, 567 S.E.2d 303 (2002), cert. denied, 538 U.S. 962, 123 S. Ct. 1749, 155 L. Ed. 2d 515 (2003) (decided under former O.C.G.A. § 24-3-5).
Statements made by a defendant's accomplice that implicated the defendant in crimes that included a murder and an armed robbery were admissible against the defendant under the coconspirator exception to the hearsay rule because the statements were made during the concealment phase of the conspiracy prior to the accomplice making a confession that the accomplice had committed the murder. Jackson v. State, 292 Ga. App. 312, 665 S.E.2d 20 (2008) (decided under former O.C.G.A. § 24-3-5).
Incriminating statements to police end conspiracy.
- Statement made to police by a conspirator, whether inculpatory or exculpatory as to the declarant, which statement incriminates the other conspirator as a party to the crime, constitutes termination of the conspiracy. Thus, such statement by a conspirator is not made during the pendency of the criminal project and is not admissible. Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976) (decided under former Code 1933, § 38-306); Hannah v. State, 144 Ga. App. 677, 242 S.E.2d 334 (1978);(decided under former Code 1933, § 38-306).
When first defendant made a statement to police and implicated second defendant, defendants' conspiracy ended and the statement was only admissible against first defendant; thus, the statement's admission as against a second defendant constituted a Bruton violation and under the circumstances warranted a reversal of the second defendant's convictions. Meadows v. State, 264 Ga. App. 160, 590 S.E.2d 173 (2003) (decided under former O.C.G.A. § 24-3-5).
Statement to an investigator by the defendant's alleged coconspirator that the coconspirator drove the defendant to a restaurant that the defendant robbed was not admissible against the defendant under former O.C.G.A. § 24-3-5, as it was not made during the pendency of the conspiracy, but in fact constituted a termination of the conspiracy. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009) (decided under former O.C.G.A. § 24-3-5).
Confession made to police by a conspirator, in which other conspirators were identified and their participation was described, was not made during the pendency of the criminal project but was made after the enterprise was ended. Such confession therefore was not admissible under former Code 1933, § 38-306 and was inadmissible at the trial of conspirator under former Code 1933, § 38-414. Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976) (decided under former Code 1933, § 38-306); Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976); Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978) (decided under former Code 1933, § 38-306); Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979); Livingston v. State, 268 Ga. 205, 486 S.E.2d 845 (1997) (decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306);(decided under former O.C.G.A. § 24-3-5).
Statements after conspiracy terminated admissible only against declarant.
- Declarations or conduct of one joint conspirator, made after the enterprise is ended, are inadmissible except against the person making them, and against others must be rejected as narrative merely of past occurrence. Hicks v. State, 11 Ga. App. 265, 75 S.E. 12 (1912) (decided under former Penal Code 1910, § 1025); Wall v. State, 153 Ga. 309, 112 S.E. 142 (1922);(decided under former Penal Code 1910, § 1025).
Evidence as to admissions of guilt involving the defendant, made by a coconspirator after the termination of the conspiracy, was admissible since it appeared that the admissions were made in the presence of the defendant personally and were then freely and voluntarily declared by the defendant to be true. Gunter v. State, 19 Ga. App. 772, 92 S.E. 314 (1917) (decided under former Penal Code 1910, § 1025).
Conspiracy was found to be terminated in the following case.
- See Green v. State, 115 Ga. App. 685, 155 S.E.2d 655 (1967) (arrest) (decided under former Code 1933, § 38-306).
Admission of codefendant's statement to investigator was reversible error because the statement was not made during the pendency of the criminal project, the conspiracy terminated when the statement was made to the investigator and thus, the statement was inadmissible as an exception to the hearsay rule. Sharber v. State, 268 Ga. App. 365, 601 S.E.2d 732 (2004) (decided under former O.C.G.A. § 24-3-5).
5. Procedure
a. Order of Proof
Conspiracy must be proved first.
- Only after the fact of the conspiracy has been proven may the declarations by any one of the conspirators during the pendency of the criminal project be admissible against all. Stinson v. State, 151 Ga. App. 533, 260 S.E.2d 407 (1979) (decided under former Code 1933, § 38-306).
When there was sufficient evidence introduced prior to disputed testimony to make out prima facie case of conspiracy, court did not err in admitting declarations of coconspirator. Salmon v. State, 249 Ga. 785, 294 S.E.2d 500 (1982) (decided under former O.C.G.A. § 24-3-5); Blue v. State, 212 Ga. App. 847, 433 S.E.2d 635 (1994);(decided under former O.C.G.A. § 24-3-5).
But rule not inflexible.
- While it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect. Coleman v. State, 141 Ga. 731, 82 S.E. 228 (1914) (decided under former Penal Code 1910, § 1029); Hutchins v. State, 229 Ga. 804, 194 S.E.2d 442 (1972); Fallings v. State, 232 Ga. 798, 209 S.E.2d 151 (1974) (decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Coconspirator's statement allowed into evidence, notwithstanding the contention that the fact of conspiracy was not proved before the admission of the statement, since the evidence adduced at trial, independent of the coconspirator's statement, was sufficient to prove a conspiracy. Isaac v. State, 269 Ga. 875, 505 S.E.2d 480 (1998) (decided under former O.C.G.A. § 24-3-5).
Evidence admitted conditioned on proof of conspiracy.
- Incriminating statements of coconspirator were properly admitted since it was allowed on the condition that a conspiracy be shown by all of the evidence, since order of proof is in the discretion of the judge and there is no error in admitting such declarations if a prima facie case of conspiracy is proved by the state. Blalock v. State, 250 Ga. 441, 298 S.E.2d 477 (1983) (decided under former O.C.G.A. § 24-3-5).
Evidence becomes competent after showing of conspiracy.
- Though evidence is objectionable because conspiracy was not proved, if it be afterwards shown, it renders the evidence competent. Barrow v. State, 121 Ga. 187, 48 S.E. 905 (1904) (decided under former Penal Code 1895, § 999); Tate v. State, 41 Ga. App. 300, 152 S.E. 609 (1930);(decided under former Penal Code 1910, § 1025).
Hearsay evidence admissible.
- Admission of hearsay testimony by coconspirators was proper based on the prosecutor's representation that the state would introduce defendant's statement, which had been ruled admissible and which revealed that coindictees were together prior to and participated in the murder. The statement satisfied the requirement of a prima facie case without regard to the hearsay testimony itself. Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299, cert. denied, 522 U.S. 917, 118 S. Ct. 305, 139 L. Ed. 2d 235 (1997) (decided under former O.C.G.A. § 24-3-5).
Trial counsel was not ineffective for failing to make a hearsay objection to certain testimony by a witness about statements that the co-conspirator made to the appellant on the night of the murder because trial counsel's testimony at the motion for new trial hearing revealed that failure to object was strategic as testimony supported counsel's strategy of incriminating a co-conspirator by showing that a co-conspirator was angry at the victim and had motive to kill. Chavers v. State, 304 Ga. 887, 823 S.E.2d 283 (2019).
It is within the discretion of the trial judge to allow the admission of testimony by coconspirators before the existence of the conspiracy is disclosed, provided that such existence is afterwards shown during the trial. Tate v. State, 41 Ga. App. 300, 152 S.E. 609 (1930) (decided under former Penal Code 1910, § 1025); Jenkins v. State, 73 Ga. App. 515, 37 S.E.2d 230 (1946); Denison v. State, 258 Ga. 690, 373 S.E.2d 503 (1988) (decided under former Code 1933, § 38-306);(decided under former O.C.G.A. § 24-3-5).
Trial judge has sound discretion as to the order of proof, and if a prima facie case of conspiracy is shown from the whole evidence, the admitting of a declaration by an alleged coconspirator is not error. Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937) (decided under former Code 1933, § 38-306); Hutchins v. State, 229 Ga. 804, 194 S.E.2d 442 (1972); Fallings v. State, 232 Ga. 798, 209 S.E.2d 151 (1974) (decided under former Code 1933, § 38-306); Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979);(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Error is harmless.
- While it is error to admit declarations of coconspirators before the fact of conspiracy is proved, the error becomes harmless when subsequently during the trial the conspiracy is clearly established by the direct and circumstantial evidence adduced. Driggers v. State, 51 Ga. App. 370, 180 S.E. 619 (1935) (decided under former Code 1933, § 38-306).
Early admission of declarations not grounds for new trial.
- While it is the better practice to require proof of the conspiracy before admitting such declarations, the admission of the evidence in a different order will not be ground for a new trial. McDaniel v. State, 103 Ga. 268, 30 S.E. 29 (1898) (decided under former Penal Code 1895, § 999); Tate v. State, 41 Ga. App. 300, 152 S.E. 609 (1930);(decided under former Penal Code 1910, § 1025).
No error shown by reference to conspiracy during opening statement.
- With regard to a defendant's trial and conviction for malice murder arising from the severe physical abuse of the defendant's five-year-old nephew, the defendant failed to meet the burden of proving that trial counsel was ineffective for failing to object to the comments made by the state during open statements with regard to the defendant and the defendant's mother beating the victim all the time and that the pair carried out the actions together. Peterson v. State, 282 Ga. 286, 647 S.E.2d 592 (2007) (decided under former O.C.G.A. § 24-3-5).
b. Duty of Jury
Determination of conspiracy.
- It is for the jury to determine from the whole evidence whether a conspiracy has been shown, and if they find that none has been established, it is their duty not to consider the acts and declarations of the supposed coconspirator. Coleman v. State, 141 Ga. 731, 82 S.E. 228 (1914) (decided under former Penal Code 1910, § 1025); Nelson v. State, 51 Ga. App. 207, 180 S.E. 16 (1935); Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937) (decided under former Code 1933, § 38-306); Gunter v. State, 243 Ga. 651, 256 S.E.2d 341 (1979);(decided under former Code 1933, § 38-306);(decided under former Code 1933, § 38-306).
Question of existence of a conspiracy is ultimately for the jury to determine. Harris v. State, 255 Ga. 500, 340 S.E.2d 4 (1986) (decided under former O.C.G.A. § 24-3-5).
Necessary findings.
- Before the jury can consider such declaration, it must find (1) that a conspiracy was in existence (2) when the statement was made. Parker v. State, 145 Ga. App. 205, 243 S.E.2d 580 (1978) (decided under former Code 1933, § 38-306).
c. Instructions
Erroneous instructions.
- It was error, likely to have been very prejudicial, to charge a jury in effect that the state's contention of conspiracy would be established if the jury believed beyond a reasonable doubt that there was a conspiracy or common purpose between "any two" of the three defendants, not necessarily including the defendant on trial. Wortham v. State, 184 Ga. 674, 192 S.E. 720 (1937) (decided under former Code 1933, § 38-306).
Proper instruction.
- Trial court did not err when the court gave the instruction to the jury that informed the jury of the circumstances under which the alleged declarations of an alleged coconspirator made out of the presence of the defendant are to be disregarded, and the instruction immediately followed the trial court's instruction that any admissions made by one or more of the conspirators during and in furtherance of the alleged conspiracy could be considered by the jury against all the conspirators if the existence of the conspiracy had been shown beyond a reasonable doubt by evidence other than the declarations of alleged coconspirators; the instruction correctly stated the law and did not impermissibly shift the burden of proof to the defendant by failing to include "not" in the pattern charge, so as to read "not satisfied beyond a reasonable doubt that a conspiracy exists." Castillo v. State, 281 Ga. 579, 642 S.E.2d 8 (2007) (decided under former O.C.G.A. § 24-3-5).
Trial court properly refused to give the defendant's request to charge that, in determining whether a conspiracy existed, the jury could not consider the declarations of the alleged accomplice. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983) (decided under former O.C.G.A. § 24-3-5).
6. Unavailability of Declarant
State need not prove declarant's unavailability as a prerequisite to admission of the declarant's declarations made during pendency of criminal project. Gay v. State, 249 Ga. 747, 294 S.E.2d 476 (1982) (decided under former O.C.G.A. § 24-3-5).
Non-testifying codefendant's admission properly admitted.
- Admission of incriminating statements made by the defendant's coconspirator to an informant to the effect that defendant agreed to sell methamphetamine to the informant, and arranging details of the transaction, was proper, despite the fact that the coconspirator did not appear at trial and was not available for cross-examination, because the statements were made during the pendency of the criminal project, the coconspirator was not asserting past facts and had personal knowledge of the identities and roles of the participants, the possibility that the statements were founded on faulty memory was decidedly remote in that the referenced occurrences were taking place almost simultaneously with the statements, and, believing that the coconspirator was setting up a lucrative drug deal with a sympathetic customer, the coconspirator had no reason to lie about the defendant's involvement in the crime. Bowden v. State, 279 Ga. App. 173, 630 S.E.2d 792 (2006) (decided under former O.C.G.A. § 24-3-5).
Inadmissible Hearsay
Indictment charging unrelated defendants not admissible.
- Federal indictment charging unrelated defendants with crimes and racketeering activities in association with a gang operating in Virginia was not admissible in the defendants' trial as the indictment was hearsay. State v. Brown, 298 Ga. 878, 785 S.E.2d 510 (2016).
Questions propounded by counsel were not proper under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) since the questions simply did not constitute an attempt to ascertain an explanation of the witness's course of conduct. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 85 (1981) (decided under former O.C.G.A. § 24-3-2).
Evidence of defendant's character.
- Testimony which places defendant's character in evidence without defendant having first done so personally cannot be admitted under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801). Anderson v. State, 252 Ga. 103, 312 S.E.2d 113 (1984) (decided under former O.C.G.A. § 24-3-2).
Victim's reputation for violence.
- Murder victim's reputation for violence may be offered by the accused upon making a prima facie showing that the victim was the aggressor and was assaulting the accused, who acted to defend oneself. Woods v. State, 269 Ga. 60, 495 S.E.2d 282 (1998) (decided under former O.C.G.A. § 24-3-2).
Evidence that a murder charge against a witness had been dropped after the witness took a lie detector test was inadmissible since the defense did not place the state's conduct in dismissing the murder charge in issue. Furthermore, the admission constituted harmful error because it created an inference that the witness had passed the polygraph examination and bolstered the credibility of the witness. Wilson v. State, 254 Ga. 473, 330 S.E.2d 364 (1985) (decided under former O.C.G.A. § 24-3-2).
Murder defendant's testimony that victim had knifed another person.
- Although murder defendant's testimony that the victim had knifed another person would have been admissible under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) as an attempt to explain the murder as the result of the defendant's reasonable fear of the victim, the testimony was properly excluded as an attempt to prove the victim's character by a specific act. Echols v. State, 174 Ga. App. 829, 331 S.E.2d 619 (1985) (decided under former O.C.G.A. § 24-3-2).
Affidavits of conversations from third parties.
- In an action by lessors against guarantors, the affidavit of an attorney representing the guarantors, recalling a conversation the attorney had with an officer of the lessee, was not admissible because the affidavit's evidentiary value depended on the credibility of the affiant, not on the credibility of the attorney. Athens Int'l, Inc. v. Venture Capital Properties, Inc., 230 Ga. App. 286, 495 S.E.2d 900 (1998) (decided under former O.C.G.A. § 24-3-2).
Uncommunicated threat of victim.
- Although evidence of a death threat against a defendant may fall within the exception under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) when offered, not for the truth of the matter asserted, but to show the victim's state of mind, this hearsay exception did not apply since the evidence did not support defendant's contention that the uncommunicated threat showed the victim's state of mind. Massey v. State, 272 Ga. 50, 525 S.E.2d 694 (2000) (decided under former O.C.G.A. § 24-3-2).
Evidence of a death threat against a defendant.
- Exception under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801) may have allowed evidence of a death threat against a defendant when the evidence was offered, not for the truth of the matter asserted, but rather to show the victim's state of mind. However, such evidence was admissible only in the circumstances in which there was a conflict in the evidence as to who instigated a fight, to corroborate evidence of communicated threats, or to establish the attitude of the deceased. Render v. State, 288 Ga. 420, 704 S.E.2d 767 (2011) (decided under former O.C.G.A. § 24-3-2).
Information from online backup hearsay.
- Defendant's motion for new trial was improperly denied as to the computer invasion of privacy charge because counsel was ineffective for failing to object to the first victim's hearsay testimony as the victim's statement about what the victim learned from an online backup system was introduced to prove that the defendant used the victim's computer to access the victim's financial information and constituted hearsay; counsel provided no reason for not objecting to that testimony; the defendant was prejudiced by counsel's deficiency as that testimony was the only evidence offered to prove the charge; and, but for counsel's deficient performance, a more than reasonable probability existed that the trial's outcome would have been different. Entwisle v. State, 340 Ga. App. 122, 796 S.E.2d 743 (2017).
Prior difficulty evidence.
- Supreme Court of Georgia overruled Perry v. State, 255 Ga. 490, 339 S.E.2d 922 (1986), to the extent it held that a victim's conversations with a witness were admissible to explain the defendant's conduct under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801), even if they were unknown to the defendant. Moreover, to the extent Perry held that the victim's conduct was a matter concerning which the truth had to be found and that the victim's statements were admissible to explain that conduct, it was also overruled. Character v. State, 285 Ga. 112, 674 S.E.2d 280 (2009) (decided under former O.C.G.A. § 24-3-2).
With regard to two defendants' convictions for malice murder, aggravated assault, and other crimes, the trial court did not abuse the court's discretion by allowing the admission of prior difficulty evidence and concluding that those statements were admissible under the necessity exception to the hearsay rule because the statements, which involved the aggravated assault victim testifying about one defendant robbing one of the murder victims of money won in a dice game and that the same defendant had tried to start an argument with the aggravated assault victim at a nightclub the same night the crimes took place, were not testimonial since the statements were not offered for the truth of the matter asserted. Further, even if the statements were not admissible under former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801), the trial court properly admitted the statements under the necessity exception to the hearsay rule as the aggravated assault victim and the murder victim at issue were long-time friends who placed great confidence in each other and it was established that the murder victim confided in the aggravated assault victim in times of trouble. Character v. State, 285 Ga. 112, 674 S.E.2d 280 (2009) (decided under former O.C.G.A. § 24-3-2).
Harmless error in admission of jewelry store custodian's testimony.
- While the trial court erred in admitting a jewelry store custodian's hearsay testimony about a mark on a wedding ring sold to the defendant because the custodian only knew about the mark through information provided by another employee, the error was harmless in light of the other evidence of the defendant's guilt. Kirby v. State, 304 Ga. 472, 819 S.E.2d 468 (2018).
Opinion testimony from a deposition in an unrelated case inadmissible.
- In a dispute between registered representatives (RRs) and the RRs former firm after the RRs quit and went to a competing firm, the trial court erred in interpreting the Protocol for Broker Recruiting to mean that notice of termination provisions in the RRs' contracts were invalid, based in part on hearsay testimony in a deposition in an unrelated case interpreting the protocol. HA&W Capital Partners, LLC v. Bhandari, 346 Ga. App. 598, 816 S.E.2d 804 (2018).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 38-301 are included in the annotations for this Code section.
Computer print-outs.- Although computer print-out sheets are generally classified as hearsay and to be admissible into evidence, computer print-outs must fall within an exception to the well-known hearsay rule, subject to the discretion of the court, computer print-out sheets or records stored in an electronic computer may be admissible into evidence when such are permanent records made in the regular course of business. 1973 Op. Att'y Gen. No. 73-91 (decided under former Code 1933, § 38-301).
RESEARCH REFERENCES
Am. Jur. 2d.
- 3 Am. Jur. 2d, Agency, § 347. 29 Am. Jur. 2d, Evidence, §§ 668, 671. 29A Am. Jur. 2d, Evidence, §§ 715 et seq., 767, 769, 770, 814, 819 et seq., 828, 871 et seq.
C.J.S.- 3 C.J.S., Agency, § 550 et seq. 31A C.J.S., Evidence, §§ 282 et seq., 376 et seq., 405 et seq., 439 et seq., 476.
ALR.
- Competency of agent, with whom transaction by person since deceased was had, to testify adversely to estate, 21 A.L.R. 928; 54 A.L.R. 264.
Confession by one who has been subjected to or threatened with physical suffering, 24 A.L.R. 703.
Character and sufficiency of evidence to show that letter was mailed, 25 A.L.R. 9; 86 A.L.R. 541.
Admissibility in favor of writer of unanswered letter not part of mutual correspondence, 55 A.L.R. 460.
Extrajudicial admissions by principal as evidence against surety, 60 A.L.R. 1500.
Evidence as to threats made to keep witness away from criminal trial, 62 A.L.R. 136.
Admissibility of secondary evidence of incriminating document in possession of defendant, 67 A.L.R. 77.
Admissibility of declarations by one involved in an accident in relation to his employment by or agency for other person, 67 A.L.R. 170; 150 A.L.R. 623.
Concession, admission, or statement by defendant's attorney in criminal case as obviating necessity of introducing evidence on the point, 70 A.L.R. 94.
Admissions of partner as to past transactions or events as evidence against firm or other partner, 73 A.L.R. 447.
Admissibility of statements of alleged agent for the purpose of showing that other party dealt with him as agent and not as principal, as distinguished from the purpose of showing the existence or extent of agency, 80 A.L.R. 604.
Admissibility of inculpatory statements made in the presence of accused, and not denied or contradicted by him, 80 A.L.R. 1235; 115 A.L.R. 1510.
Admissibility of statements or declarations of plaintiff's spouse in an action for alienation of affections for the purpose of showing his or her mental state, 82 A.L.R. 825.
Admissibility of declarations of grantor or transferrer on issue as to whether conveyance or transfer was in fraud of creditors, 83 A.L.R. 1446.
Effect of silence of surety or endorser after knowledge or notice of facts relied upon as releasing him, 101 A.L.R. 1310.
Admissibility of admissions against title to tangible personal property made by one subsequent to executing chattel mortgage thereon, 106 A.L.R. 1296.
Admissibility on issue of negligence or contributory negligence of statements warning one of danger, 125 A.L.R. 645.
Extrajudicial statements by witness who is subject to cross-examination as evidence of facts to which they relate, 133 A.L.R. 1454.
Admissibility of oral or written statement by deceased as to fact or terms of an antenuptial or postnuptial agreement which cannot be found, 140 A.L.R. 1133.
Extrajudicial declarations of agent as admissible in action against principal for personal injuries for purpose of showing knowledge of relevant fact or condition at or prior to time of injury, 141 A.L.R. 704.
Admissibility of evidence of complaint or details of complaint by alleged victim of rape or other similar offense as affected by fact that she is not a witness or is incompetent to testify because of age or other reason, 157 A.L.R. 1359.
Silence upon hearing statement by spouse as evidence of admission in civil case, 158 A.L.R. 465.
Extrajudicial declaration of commission of criminal act as admissible in evidence where declarant is a witness or available to testify, 167 A.L.R. 394.
Binding effect of party's own unfavorable testimony, 169 A.L.R. 798.
Competence, as against principal, of statements by agent to prove scope, as distinguished from fact, of agency, 3 A.L.R.2d 598.
Admissibility of evidence that defendant in negligence action has paid third persons on claims arising from the same transaction or incident as plaintiff's claim, 20 A.L.R.2d 304.
Admissibility, in prosecution for bribery or accepting bribes, of evidence tending to show the commission of other bribery or acceptance of bribe, 20 A.L.R.2d 1012.
Admissibility and probative value of admissions of fault by agent on issue of principal's secondary liability, where both are sued, 27 A.L.R.3d 966.
Admissibility in homicide prosecution for purpose of showing motive of evidence as to insurance policies on life of deceased naming accused as beneficiary, 28 A.L.R.2d 857.
Admissibility, in prosecution for illegal sale of intoxicating liquor, of other sales, 40 A.L.R.2d 817.
Admissibility of records or report of welfare department or agency relating to payment to or financial condition of particular person, 42 A.L.R.2d 752.
Admissibility of advertisements, brochures, catalogs, and the like as containing admissions by a litigant contrary to a position taken by him, 44 A.L.R.2d 1027.
Admissibility of subsequent declarations of settlor to aid interpretation of trust, 51 A.L.R.2d 820.
Admissibility and weight of party's admissions as to tort occurring during his absence, 54 A.L.R.2d 1069.
Admissibility of evidence of reputation or declaration as to matter of public interest, 58 A.L.R.2d 615.
Admissibility of evidence of party's silence, as implied or tacit admission, when a statement is made by another in his presence regarding circumstances of an accident, 70 A.L.R.2d 1099.
Admissibility on behalf of accused in homicide case of evidence that killing was committed at victim's request, 71 A.L.R.2d 617.
Admissibility, on behalf of one of multiple defendants in accident case, of admission against interest made out of plaintiff's presence by another defendant to a fourth person, 73 A.L.R.2d 1180.
Admissibility and weight of surveys or polls of public or consumers' opinion, recognition, preference, or the like, 76 A.L.R.2d 619, 98 A.L.R. Fed. 20.
Admissibility of inculpatory statements made in presence of accused to which he refuses to reply on advice of counsel, 77 A.L.R.2d 463.
Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890.
Admission of liability as affecting admissibility of evidence as to the circumstances of accident on issue of damages in a tort action for personal injury, wrongful death, or property damage, 80 A.L.R.2d 1224.
Nonverbal reaction to accusation, other than silence alone, as constituting adoptive admission under hearsay rule, 87 A.L.R.3d 706.
Admissibility on behalf of accused of evidence of similar acts or transactions tending to rebut fraudulent intent, 90 A.L.R.2d 903.
Admissibility in civil action, apart from res gestae, of lay testimony as to another's expressions of pain, 90 A.L.R.2d 1071.
Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671.
Impeachment of witness with respect to intoxication, 8 A.L.R.3d 749.
Admissibility in evidence, in automobile negligence action, of charts showing braking distance, reaction times, etc., 9 A.L.R.3d 976.
Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant, 10 A.L.R.3d 359.
Admissibility of hearsay evidence as to comparable sales of other land as basis for expert's opinion as to land value, 12 A.L.R.3d 1064.
Admissibility of evidence of habit, customary behavior, or reputation as to care of pedestrian on question of his care at time of collision with motor vehicle giving rise to his injury or death, 28 A.L.R.3d 1293.
Grand jury: admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or conviction, 37 A.L.R.3d 612.
Admissibility of physician's testimony as to patients' statements or declaration, other than res gestae, during medical examination, 37 A.L.R.3d 778.
Necessity and sufficiency of independent evidence of conspiracy to allow admission of extrajudicial statements of coconspirators, 46 A.L.R.3d 1148.
Admissibility of newspaper article as evidence of the truth of the facts stated therein, 55 A.L.R.3d 663.
Sufficiency of identification of participants as prerequisite to admissibility of telephone conversation in evidence, 79 A.L.R.3d 79.
Admissibility of evidence to establish oral antenuptial agreement, 81 A.L.R.3d 453.
Admissibility of hypnotic evidence at criminal trial, 92 A.L.R.3d 442; 77 A.L.R.4th 927.
Admissibility of former testimony of nonparty witness, present in jurisdiction, who refuses to testify at subsequent trial without making claim of privilege, 92 A.L.R.3d 1138.
Evidence: admissibility of memorandum of telephone conversation, 94 A.L.R.3d 975.
Denial of recollection as inconsistent with prior statement so as to render statement admissible, 99 A.L.R.3d 934.
Admissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludible as hearsay--state cases, 89 A.L.R.4th 456.
Admissibility of tape recording or transcript of "911" emergency telephone call, 3 A.L.R.5th 784.
Admissibility in evidence of composite picture or sketch produced by police to identify offender, 23 A.L.R.5th 672.
Sufficiency of hearsay evidence in probation revocation hearings, 21 A.L.R.6th 771.
Construction and application of uniform rule of evidence 803(17), providing hearsay exception for market reports, and commercial publications, 54 A.L.R.6th 593.
What constitutes similar motive for purposes of Rule 804(b)(1) of Federal Rules of Evidence, excepting such testimony from hearsay rule if party against whom such testimony is offered had opportunity and "similar motive" to develop testimony, 138 A.L.R. Fed 367.
When is witness "unavailable" for purposes of admission of evidence under Rule 804 of Federal Rules of Evidence, providing hearsay exception where declarant is unavailable, 174 A.L.R. Fed. 1
Admissibility of party's own statement under Rule 801(d)(2)(a) of the Federal Rules of Evidence, 191 A.L.R. Fed. 27.
Construction and application of Fed. Rules Evid. Rule 804(b)(6), 28 U.S.C.A., hearsay exception based on unavailable witness's wrongfully procured absence, 193 A.L.R. Fed. 703.
Hearsay objections to admission of text messages or testimony thereof, 10 A.L.R.7th 4.