Later On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions

Like its federal counterpart, Indiana 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... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

As the text of this Rule makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated. And that is exactly what the Court of Appeals of Indiana found in determining that the trial court erred in admitting an alleged co-conspirator admission in its recent opinion in French v. State, 2009 WL 4842607 (Ind.App. 2009). I thus agree with the court's conclusion on that issue, but I am not sure that I agree with the court's conclusion that this error was harmless.

In French, Anthony French was convicted of murder and conspiracy to committ murder. The victim of that murder was Teresa French, Anthony's estranged wife, and the evidence presented at trial established that

French told [Jess David] Woods about the situation with Teresa and that the way to end his problems was to have Teresa killed. Woods...told French he could help him. French told Woods that he wanted Teresa killed in the garage at the Cromer Street residence because "he didn't want the house shot up or blood all over the place."...French wanted Teresa killed before all of his property was sold and his marriage was dissolved. He also wanted her killed while the three children were out of the house, and while he was at work. [Oren] Johnson lent French $2500.00, which French gave to Woods as a down payment on the killing. Johnson overheard the agreement that French would pay Woods $5000.00 to "tak[e] Teresa off the face of this earth."

Woods later showed French a .22 caliber pistol with a homemade silencer and an attached canvas bag that caught the ejected shells. French and Woods shot off the gun in Johnson's backyard in early May 1993. French told Woods that this was the gun that would help them get away with murder. French also told Woods to lure Teresa into the garage by posing as a housing inspector who needed to look at the garage for his report.

In the spring of 1993, French told long-time friend Rick Engle and co-worker Joe Haskins that Teresa had filed a dissolution petition and that he was going to kill her. He also told Hank Roe, a neighbor at the Cromer Street residence, that he was losing his house and boat and that he was going to kill Teresa so he could have everything. French also told Roe to keep his girlfriend away from the Cromer Street house.

The closing for the sale of the Cromer Street house was scheduled for May 14, 1993, and the final dissolution hearing was scheduled for June 8, 1993. On the morning of May 13, 1993, Teresa was at home alone. Her two youngest children were out of town with her mother, and her oldest child was at school. French was at work at Borg Warner. At approximately 10:25 a.m., Teresa was talking on the phone to her friend Ginger Engle when a man wearing a suit knocked at the door. Engle overheard the man tell Teresa he was an inspector. Teresa told Ginger she would call her back. Teresa's body was found later that day in the garage. She had been shot multiple times in the head and chest with a .22. No shell casings were found at the scene.

The French opinion doesn't tell us exactly how all of these facts were established, but it does tell us that

at trial, the court allowed Woods' former spouse, Mary Dabbs, to testify over French's objection that in 1997, she and Woods went to Johnson's house and she overheard Johnson and Woods talking about Teresa's murder. On the way home, Dabbs asked Woods what he had been talking about. Woods pushed Dabbs against the car window and told her that he had killed Teresa and that he would kill her too if she ever told anyone what had happened. Woods told Dabbs that he went over to the Frenches' house dressed in a suit, and that Teresa thought he was some kind of inspector. He further told Dabbs that he killed Teresa in the garage. Dabbs also testified that she and Woods subsequently visited Terry Fisher in Indianapolis who was supposed to have gotten rid of the gun for Woods. Fisher still had the gun, and Woods told him to "move it on down the line, get rid of it."

After he was convicted, French appealed, claiming that Dabbs' testimony was improperly admitted because Woods' statements did not constitute co-conspirator admissions. The Court of Appeals of Indiana agreed, finding that

Here, Teresa was murdered several years before Woods made the statements about which Dabbs was permitted to testify. Thus, the statements were made after the conspiracy had been effected and the crime had been perpetrated, not during its course. The trial court therefore erred in allowing Dabbs to testify about these statements.

Nonetheless, the court found that this error was harmless, concluding "that Dabbs' testimony was merely cumulative of other testimony that Woods impersonated a housing inspector and murdered Teresa in the garage." Now if this other testimony was testimony by eyewitnesses who saw the crime or testimony by witnesses who heard a similar admission, I would agree. But if the other testimony was not that strong, I have difficulty agreeing with a finding of harmless error.

-CM