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Univ. of South Carolina School of Law

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Monday, October 29, 2007

Brian McDaniel Loses Murder Appeal Despite Hearsay Argument

In 2006, Brian Lamel McDaniel was found guilty of murder in the first degree and sentenced to life imprisonment based upon his alleged role in the murder of his ex-girlfriend, Kandace "Sissy" DeCarlo.  Allegedly, McDaniel arranged for Donald Overton, a member of the Bloods, to kill DeCarlo because she was now dating Thomas "Mad Dog" Smith, a Red Mob enforcer, and selling crack cocaine for Smith instead of for McDaniel.

At trial, in addition to presenting evidence that McDaniel arranged for Overton to kill DeCarlo, the prosecutor introduced evidence to prove that Overton in fact killed DeCarlo.  This evidence consisted of the testimony of former Red Mob member Israel Ward, who testified that Overton overheard a conversation about DeCarlo's murder and responded, "I shot her until she was dead."

McDaniel appealed his sentence, with his attorney claiming that the trial court improperly allowed this testimony because it was hearsay and because because Overton did not testify at trial.  Last Thursday, however, he lost his appeal.

Looking the Oklahoma Evidence Code and recent Confrontation Clause jurisprudence, the court's decision makes sense, as long as Overton was unavailable to testify at trial.  Section 2804(B)(3) of Oklahoma's Evidence Code is similar to Federal Rule of Evidence 804(b)(3) in that, when the declarant is unavailable to testify, it allows for the admission of "[a] statement which was at the time of its making contrary to the declarant's pecuniary or proprietary interest, or which tended to subject him to civil or criminal liability...and which a reasonable man in his position would not have made unless he believed it to be true."  Thus, assuming that Overton was unavailable, his statement was properly admitted because it tended to subject him to criminal liability for murder and because a reasonable man would not make statements subjecting himself to such criminal liability.

Next, we must look at the Confrontation Clause.  In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant..  Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.

Here, it appears unlikely that Overton thought that his statement in response to the conversation about the murder would have been used in a criminal prosecution, so his statement was not "testimonial."  Thus, McDaniel's rights under the Confrontation Clause were not violated by the admission of Overton's statement.

I'll finally note that while the denial of McDaniel's appeal was proper assuming that Overton was unavailable, the denial was improper assuming that Overton was available to testify.  As they are under the Federal Rules of Evidence, the admissions of co-conspirators are considered non-hearsay under Section 2801(4)(a)(5) of the Oklahoma Evidence Code.  A co-conspirator's admission, however, is defined as a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.  Overton's statement after the alleged murder of DeCarlo would almost certainly not have been made during the course and in furtherance of any conspiracy to murder her, so his statement would have been inadmissible if he were available to testify at trial.

-CM

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