EvidenceProf Blog

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

Wednesday, October 12, 2011

Anything Resembling Furtherance?: Court Of Appeals Of Iowa Finds Trial Court Erred In Admitting Co-Conspirator Admissions

Like its federal counterpart, Iowa Rule of Evidence 5.801(d)(2)(E) provides that a statement is not hearsay if

The statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

As the language of the Rule makes clear, it is not enough for a statement to be made during the course of a conspiracy. Instead, for a statement to qualify as a co-conspirator admission, the statement must have been made during the course of and in furtherance of the conspiracy. And this latter fact was something that the prosecution did not sufficiently in State v. Dayton, 2011 WL 4578505 (Iowa App. 2011), according to the recent opinion of the Court of Appeals of Iowa.

In Dayton, Jessica Dayton was convicted of first-degree murder. According to the prosecution, Dayton conspired with Denise “Dee” Frei and Frei's son, Jacob Hilgendorf, to kill Curtis Bailey. At trial, the prosecution allowed for the admission of statements by Frei to Elisha Runyan, who was not part of the conspiracy, before the murder was committed. Specifically, Frei told Runyan that

(1) "her and Jess [Dayton] were going to try again on Saturday," (2) Frei "was going to start drinking so then she had a reliable reason for Jess to drive her home," (3) they were "going to overdose Curt," and (4) "Jacob [Hilgendorf] and Jess were going to get $5000 apiece if they helped...[k]ill Curt."

The trial court also allowed Runyan to testify that (1) Frei asked her to come to a café "because she wanted to tell me what they all had planned and that...everything was going to go well," and that Frei told her that "they were going to try to overdose" Bailey.

After she was convicted, Dayton appealed, claiming, inter alia, that the trial court improperly allowed for the admission of these statements as co-conspirator admissions under Iowa Rule of Evidence 5.801(d)(2)(E). The Court of Appeals of Iowa agreed, initially noting that some examples of statements made in furtherance of a conspiracy 

include comments designed to assist in recruiting potential members, to inform other members about the progress of the conspiracy, to control damage to or detection of the conspiracy, to hide the criminal objectives of the conspiracy, or to instill confidence and prevent the desertion of other members.

The court then pointed out that

"'The statement need not have been made exclusively, or even primarily, to further the conspiracy.'"...Instead, the "record need only contain some reasonable basis for concluding that the statement in question furthered the conspiracy in some respect."

That said, the court could not find even such a reasonable basis, concluding that

There is not much, if any evidence, to support this assertion. While it is true Frei told Runyan that "everything was going to go well" and that she was going to pay Dayton and Hilgendorf $5000 each for their assistance, there is no indication she made these statements in an attempt to elicit Runyan's cooperation or assistance....Rather, she simply seemed to be relating the plan to a trusted friend, who played no role in the murder....Thus, the statements do not appear to have been made in furtherance of the conspiracy.

Thus, the Court of Appeals of Iowa found that the trial court erred in admitting these statement but deemed the error harmless and thus affirmed Dayton's conviction.



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