EvidenceProf Blog

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

Saturday, June 6, 2009

Come Be My Conspiracy: Supreme Court Of Arkansas Makes Seemingly Erroneous Co-Conspirator Admission Ruling

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. 

In its recent opinion in Ventry v. State, 2009 WL 1423547 (Ark. 2009), the Supreme Court of Arkansas affirmed a defendant's convictions for capital murder and aggravated robbery based upon a disastrous misreading of this Rule. 
Unfortunately, the opinion in Ventry doesn't give us many facts, but here are the basics. On August 5, 2007, Nicholas Jones drove Eddie Dixon to meet a woman named Sultannah Saddiq in Benton, Arkansas. While Jones was driving, Dixon was on his cell phone with Sultannah, and she was giving her directions on where to meet her. Her directions led Jones and DIxon to a path where three men with guns jumped out of the bushes and told Eddie and Nicholas to get out of the car, empty their pockets, and lay on the ground. Nicholas argued with two of the men, and Eddie was told to take his clothes off and crawl to the back of a building. As Eddie crawled away, he heard two gun shots and heard the men drive away.

Eddie thereafter could not find Nicholas, but a responding officer did find him leaning against the front side of a house, bleeding profusely. Briana Higgs was in that house, and according to the court's opinion, Briana

was inside her house when she heard her grandmother telling her to get some towels because someone was bleeding on the porch. Briana stated that she knew Sultannah, and the police asked Briana to call her. When Briana called, Sultannah did not answer her phone. Eventually, she did answer the phone and told Briana that she did not know the boy who had been shot....[W]hen Sultannah called back, she asked what happened and Briana told her that someone had been shot. Sultannah then asked if the victim died. 

Nicholas had not yet died, but he later did die from complications from his gunshot wounds. After the State developed sufficient evidence that Montrell Dashone Ventry was one of the three men, it charged him with capital murder and aggravated robbery. At trial, and over Ventry's objection, Briana testified concerning her two phone calls with Sultannah. Ventry's objection was that Briana was not a member of the alleged conspiracy, meaning that the conversations could not be admissible as co-conspirator admissions under Arkansas Rule of Evidence 801(d)(2)(v).

The trial court overruled Ventry's objection, and after he was convicted, he appealed to the Supreme Court of Arkansas. That Court affirmed, finding that "[b]ecause Sultannah was a co-conspirator, her statements to Briana are not hearsay pursuant to Arkansas Rule of Evidence 801(d)(2)(v)." Now, the Court didn't explain how Sultannah was a co-conspirator, but I will assume that the Court was correct on this front. It is, however, another thing that the Court didn't explain with which I have a problem. As noted above, Arkansas Rule of Evidence 801(d)(2)(v) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  

Yet, the Court never explained how Sultannah's statements were made in furtherance of the conspiracy (It also never explained how Sultannah's statements were made during the course of the conspiracy). And I don't see how they could be construed as being made in furtherance of the conspiracy. Presumably the conspiracy was to rob/assault/kill Eddie and or Nicholas. How could Sultannah's statements denying knowledge of the boy who had been shot and then asking about his condition, after the robbery/shooting had already taken place, be construed as in furtherance of the conspiracy? I don't think that the Court could have a good answer to that question. 



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The arguments I've heard from prosecutors, adopted by judges, in similar circumstances, are that the crime, including the conspiracy, continues, until the criminal(s) reach a place of safety, in the "escape" context, or until the event is completely over--gotten clearly away from the scene, etc., in the context of a robbery. It sounds to me like this reasoning argues, implicitly, that the conspiracy to murder wasn't over until all the victims had died. This statuement is therefore one made "during" the course of the conspiracy, and argulably in furtherance of it--if a victim hasn't died (yet), he still needs to be killed. It's shoddy reasoning, but it makes the statements admissible, rather than making the statements inadmissible, and letting a killer off the hook. It's results-oriented jursiprudence, not legal-theory-driven jurisprudence. It's law as it is actually practiced.

Posted by: Greg Jones | Jun 12, 2009 2:09:58 PM

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