Sunday, January 11, 2009
The Crime And The Cover-Up: Court Of Appeals Lays Out The Contours Of The Co-Conspirator Admissions In Drug Bust Appeal
The recent opinion of the Court of Appeals of Minnesota in Custer v. State, 2008 WL 533517 (Minn.App. 2008), reveals that a statement can qualify as a co-conspirator admission if it is made before the subject crime is committed or during an attempt to conceal the crime after it has been committed, but with an important limitation.
In Custer, Raymond Custer appealed from his two convictions for first-degree controlled-substance crime. The facts of the case were as follows:
"On August 4, 2006, police arrived at Erik Michael Karlsen's farm to arrest him on an outstanding felony warrant. One officer heard voices coming from within a detached garage and could see that a light was on inside the garage. He looked through a hole in the north wall of the garage and saw Thomas Paul Mussehl and Custer inside the structure....One of the men was holding a beaker containing a dark chemical while the other man held a propane torch. The beaker was connected to a 55-gallon drum by a tube.
Three other officers later took turns looking through the hole in the wall. These officers saw Mussehl holding the beaker in one hand and a butane torch in the other. The flame was on, and Mussehl was holding the torch underneath the beaker while the contents of the beaker bubbled. The officers testified that Custer was standing near Mussehl, was not moving around the garage, and held some kind of white material in his hand.
After Karlsen was taken into custody, police ordered Custer and Mussehl to leave the garage. Custer came out of the garage upon their request. Mussehl did not come out of the garage, so the officers entered the building. Mussehl was seated, stirring the beaker, which had smoke coming out of it. Mussehl said that if he put the beaker down, it would explode. With the officers' permission, Mussehl poured water into the beaker and set it down. The beaker was later found to contain 10 milliliters (11.7 grams) of liquid methamphetamine."
After Custer was convicted, he appealed, claiming, inter alia, that statements made by Karlsen soon after he was taken into custody were improperly admitted. Specifically, a deputy testified over Custer's objection that while officers waited for the fire department to arrive at Karlsen's farm,
"Karlsen asked him if he could borrow the deputy's cell phone to call a friend to come and watch Karlsen's dog. The deputy testified that while Karlsen was talking on the cell phone, Karlsen said that 'Ray [Custer] and Tom [Mussehl] got caught cooking' in the garage."
The trial court had found that this testimony was admissible pursuant to Minnesota Rule of Evidence 801(d)(2)(E), which defines as nonhearsay a statement by the co-conspirator of a party "made during the course of an in furtherance of the conspiracy." But on appeal, even the state itself conceded that "the conspiracy had ended when Karlsen made his statement" because Karlsen had been apprehended.
On the other hand, the Court of Appeals of Minnesota noted that "statements made 'during the concealment phase of a conspiracy may be admissible under the co-conspirator exemption.'" But the court noted that there is an important limitation on this concealment rationale, which is that "'a conspiracy to conceal the commission of the charged crime may not be automatically implied to permit the use of hearsay statements made by co-conspirators.'" And the problem in Custer was that
"the district court did not determine that there was any conspiracy to conceal the manufacture of methamphetamine. Because there is no evidence that Karlsen's statement was made in the course of a conspiracy to conceal, the district court abused its discretion by admitting the statement."
This seems like the correct analysis to me, and it seems like the Court of Appeals of Minnesota had no other choice but to find that the trial court made the incorrect evidentiary ruling. (In the end, the court still affirmed because there was significant other evidence of Custer's guilt, including his own confession).