Thursday, March 12, 2009
My Conspiracy?: Supreme Court Of Georgia Erroneously Finds That The Confrontation Clause Doesn't Apply To Res Gestae
The recent opinion of the Supreme Court of Georgia in Butler v. State, 669 S.E.2d 118 (Ga. 2008), contains a horribly misguided extension of the co-conspirator admission "exception" to the Confrontation Clause.
around midnight on February 21, 2004, a guard at the Lee Arrendale State Prison in Alto, Georgia, was alerted to a medical emergency in Butler's jail cell. Once there, the guard found the window on the cell door obstructed, and, when the obstruction was removed, the guard could see Butler and a second inmate, Maurice Tobler, seated on the bed. The guard also saw a third inmate, Wayne Boatwright, lying on the floor, slumped against a radiator, and apparently unconscious. The presence of other inmates in Butler's cell violated internal prison policies.
After entering the cell and handcuffing Butler and Tobler, the guard discovered that Boatwright was not breathing, had no pulse, and had blood running from his nose. At that point the guard made the comment that, if Butler and Tobler had meant to kill Boatwright, they had done a good job. Tobler immediately and voluntarily replied, "[w]e didn't mean to kill him." Attempts to revive Boatwright were unsuccessful, and he died at the scene.
After Butler was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed the guard to testify regarding Tobler's statement in violation of his rights under the Confrontation Clause. Butler's appeal eventually reached the Supreme Court of Georgia, which found that
Tobler's voluntary utterance at the scene was admissible pursuant to the res gestae exception to the rule against hearsay. See OCGA Section 24-3-3 ("Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae").
The Georgia Supremes then cited to their previous opinion in Burgess v. State, 602 S.E.2d (Ga. 2004), which it found stood for the proposition that the Confrontation Clause (via the Bruton doctrine) is inapplicable when an exception to the hearsay rule applies. The only problem is that Burgess did not (indeed, could not) have said that. Instead, Burgess found that
when the State introduces a non-custodial statement (as opposed to a confession) of a co-defendant that implicates the defendant, Bruton is inapplicable and the appropriate analysis is whether the statement was admissible against the defendant under the co-conspirator exception to the rule against hearsay.
And this makes sense. As I have noted before on this blog, when a court deems a statement by a co-conspirator a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), it is finding, in effect, that the admission was made by all co-conspirators. Consequently, any of those co-conspirators cannot claim that the admission of the admission violates his rights under the Confrontation Clause because the admission is, in effect, his admission (and also possibly non-testimonial).
But there is no general hearsay exception to the Confrontation Clause because such an exception would render the Confrontation Clause meaningless. Moreover, Tobler's statement was not a co-conspirator admission because it was certainly not made in furtherance of (and possibly not during the course of) the conspiracy.