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.
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 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.