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

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Tuesday, June 1, 2010

Frustrated Incorporated: Court Of Criminal Appeals Of Alabama Reverses Robery Conviction Based On Improperly Admitted Coconspirator Admission

Like its federal counterpart, Alabama Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if....[t]he statement is offered against a party and is....(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Because coconspirator admission rule only applies to statements made during the course and in furtherance of a conspiracy, it is well established that confessions made by one coconspirator after he has been apprehended are not admissible under the rule because they are in frustration of a conspiracy. This was an issue, however, that was not recognized by the trial court in the prosecution of Devane Hillard, which led to the opinion of the Court of Criminal Appeals of Alabama in Hillard v. State, 2010 WL 2148535 (Ala.Crim.App. 2010).

In Hillard, Devane Hillard was convicted of first-degree robbery. Police suspected that Danny "Big D" Shackelford was involved in a conspiracy with Hillard to commit the subject robbery, and Sergeant Ray Weihe

took Shackelford into custody. While in custody, Shackelford waived his right to counsel and gave a statement. According to Sergeant Weihe, Shackelford admitted his participation in the crime and stated that Hillard was involved in the planning and in the execution of the robbery.

Weihe testified to this confession at Hillard's trial, with the court finding the confession admissible as a coconspirator admission under Alabama Rule of Evidence 801(d)(2)(E). After Hillard was convicted, he appealed, claiming that Shackelford's statements were neither made during the course or in furtherance of the alleged conspiracy.

The Court of Criminal Appeals of Alabama agreed, finding that

Regarding the first requirement, "incriminating acts or statements of one [co-conspirator] after the ends of the conspiracy have been accomplished, and no longer exist, are not admissible against another...."Further, as the Supreme Court of the United States has explained, a “confession or admission by one coconspirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it....Following this approach, Alabama courts have repeatedly held "that a nontestifying codefendant's statement to police implicating the accused in the crime is inadmissible against the accused [and] does not fall within any recognized exception to the hearsay rule...."

The court thus found that Shackelford's confession was improperly admitted and reversed and remanded.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/06/co-conspirator--hillard-v-state----so3d------2010-wl-2148535alacrimapp2010.html

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