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BIRDSONG, Presiding Judge.
Drug violation. Clayton Superior Court. Before Judge Boswell.
"[I]t does not follow, because the . . . words in question are those of a third person, not under oath, that therefore they are to be considered as hearsay. On the contrary, it happens in many cases, that the very fact in controversy is, whether such things were written, or spoken, and not whether they were true. [Cit.] [Emphasis supplied.] . . . Thus, where the question is, whether the party acted prudently, wisely, or in good faith, the information, on which he acted, whether true or false, is original and material evidence. . . . [C]onversations addressed to a person, whose [criminality] is the fact in question, being connected in evidence with some act done by him, are original evidence to show whether he was [guilty of a crime], or not. . . . This doctrine applies to all other communications, wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy. [Cit.]" Momon v. State, supra at 866-867. "When, in a legal investigation, the conduct and motives of the actor . . . concerning which the truth must be found (i.e., are relevant to the issues on trial), then information [and] conversations . . . are admissible to explain the actor's conduct. [Cits.] But where the . . . motives of the actor are not matters concerning which the truth must be found . . . then the information, etc., on which he or she acted shall not be admissible under [OCGA 24-3-2]." Id.
In Momon and Teague, what was said to police officers was deemed inadmissible hearsay because the motives and conduct of the investigating police officers were not relevant to the issues on trial. However, the truth being directly sought in this case was the motives and conduct of the defendant. Brown offered this evidence not to prove the truth of what the friend in Jamaica allegedly said (as obviously it was not true), but to prove the friend said it and thus explain why Brown took the suitcases. Nothing could be more pertinent to the fact the jury had to determine: Whether Brown possessed the marijuana with intent to distribute.
The evidence was not, as the state argues, sought to be admitted as evidence establishing the motives of the third party; but it was submitted to explain the motives and conduct of the appellant, and was therefore original evidence. See Bennett v. State, 49 Ga. App. 804 (176 SE 148). The credibility or even absurdity of any such evidence is not an element which determines its admissibility, and is not a question for this court or the trial court. See Mulkey v. State, 155 Ga. App. 304, 307 (270 SE2d 816). "If there be any question as to the credibility of the testimony, still the jury ought to receive it and determine its credibility" as it determines credibility of other evidence. Id.
However, the error was harmless in this case. The appellant did explain to the jury that she did not own the luggage but was carrying it at the request of a friend that she was to deliver it in Houston, Texas to the friend's sister; and since the friend owned a dress shop, she assumed the luggage contained clothes. She also testified the friend was Clover Jobson, that Clover Jobson was on this flight with her; that she did not deny knowing Clover Jobson when asked by the agent but simply did not answer. Furthermore, when the agent asked her to admit the luggage belonged to Clover Jobson, she did not tell the agent the luggage belonged to Clover Jobson. The agent testified defendant denied she was traveling with anyone else, denied traveling with Clover Jobson, and said she did not know her. Under all this evidence, it is clear that not only did appellant succeed in explaining that the luggage was not hers and that this was someone else's luggage she was to deliver in Houston, but the jury also had the benefit of her testimony that this other person was also on the plane and, moreover, that appellant denied this fact when questioned pointedly by the agent. Under this evidence, it is highly probable that the verdict of guilt on the crime charged was not affected by the trial court's failure to let her repeat the exact words Clover Jobson told her in explaining why her carriage of Clover Jobson's luggage was without criminal intent. Hamilton v. State, 239 Ga. 72, 76-77 (235 SE2d 515).
Moreover, appellant cannot complain of the error because no offer was made at the time the evidence was offered to show the substance of the evidence to the trial court. Thompson v. Hill, 143 Ga. App. 272 (238 SE2d 271); Williams v. Tribble, 140 Ga. App. 390 (231 SE2d 86); Carter v. Tatum, 134 Ga. App. 345 (212 SE2d 439). The offer of proof was not made in this case until after the close of the evidence, which was too late to do any good at all. See 11 EGL, Evid., 10 (1979 rev.); 10 EGL, Evid., 18 (1979 rev.). The burden is on the appellant to show error. McKenzey v. State, 127 Ga. App. 304 (1) (193 SE2d 226). We have no basis for assuming the error to be harmful; appellant did explain the luggage was not hers and that she was carrying it for a friend; and there is no showing the excluded evidence was not merely cumulative; nor can we, not knowing what the substance of the evidence was, possibly say it was highly probable the exclusion was error.
Lee Sexton, for appellant.
Thursday May 21 15:50 EDT

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