EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, April 26, 2009

Gangster No. 1: Court of Appeals of Minnesota Finds Statements Made During Concealment Phase Of Conspiracy Qualify As Co-Conspirator Admissions

Minnesota Rule of Evidence 801(d)(2)(E) indicates that a statement is not hearsay if the statement is offered against a party and is

a statement by a coconspirator of the party.  In order to have a coconspirator’s declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Neiss, 2009 WL 1046515 (Minn.App. 2009), makes clear, a statement is made "in furtherance of" a conspiracy even if it is made during the concealment phase of the conspiracy.

In Neiss, according to the state's evidence,

George Neiss asked Marsh for permission to look at Marsh's handgun. When Marsh handed it over, George Neiss removed the bullets and returned the handgun and the bullets to Marsh. George Neiss and Marsh then began to argue about Marsh's claim that he was affiliated with the Gangster Disciples. Marsh claimed that he was a member of the Gangster Disciples, but George Neiss claimed that Marsh was not. George Neiss punched Marsh in the head, which caused Marsh to fall to the ground. As Marsh lay on the ground, appellant, George Neiss, and T.W. repeatedly kicked him and yelled at him for lying. T.W. removed Marsh's shoes and threw them in the fire and then stomped on Marsh's bare feet. Appellant stood over Marsh with Marsh's gun and hit Marsh on the head several times with the gun. Marsh asked appellant not to kill him. Appellant put one bullet in the gun and asked Marsh if he wanted to play Russian roulette. Appellant pointed the gun at Marsh's head and pulled the trigger, and the gun fired the bullet into Marsh's head.

Appellant, George Neiss, T.W., and M.C. then fled. George Neiss called his girlfriend, T.D., and asked her to pick them up, and she did so. T.D. and M.C. testified that, as the group was riding in T.D.'s car, George Neiss told T.D. that they had killed Marsh and that appellant was "a gangster now." T.D. also testified that appellant repeated George Neiss's statement by saying, "I'm a 

The appellant was subsequently charged with murder and convicted after, inter alia, testimony was received concerning George's statement that they had just killed Marsh and that the appellant was "a gangster now." In addressing the appellant's appeal, the Court of Appeals of Minnesota found that these statements were admissible against the appellant as adoptive admissions under Minnesota Rule of Evidence 801(d)(2)(B) because the appellant responded to them by saying, "I'm a gangster now."   

The admissibility of a statement that George made the day after the murder was a closer call. Evidence was admitted at trial indicating that

the day after the murder, T.D. drove appellant and George Neiss back to the [murder scene] because George Neiss said that he had forgotten something. After returning to the car, George Neiss told T.D. that Marsh's body was still lying on the ground near a tree and that he had taken care of the crime scene so that “as long as [T.D.] and [M.C.] didn't say anything, [they would] be fine.


As noted, though, the court found that Minnesota Rule of Evidence 801(d)(2)(E) covers not only statements made during the commission phase of a conspiracy but also statements made during the concealment phase of a conspiracy, and because it found that George's statement was indeed made during the concealment phase, it concluded that the trial court committed no error.



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