Conspiracy Theory: Court Of Appeals Of Arizona Finds Statement "After" Burglary Qualified As Co-Conspirator Admission

Like its federal counterpart, Arizona 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 coconspirator of a party during the course and in furtherance of the conspiracy.

So, let's say that a defendant is charged with burglary, and the prosecution calls one of his co-conspirators as a cooperating witness to testify that after the burglary another co-conspirator "made a comment...that the homeowners were inside the closet praying." Is this a statement made during the course of an in furtherance of the conspiracy to burglarize the house? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Martinez, 2011 WL 662434 (Ariz.App. Div. 1 2011), the answer is "yes."

In Martinez, the facts were as stated above, with Gilbert Martinez, Sr. and others being indicted on twenty-three counts arising from a series of seven burglaries and home invasions between December 2005 and March 2006, including the burglary after/during which the above statement was allegedly made. During that burglary, one of Martinez's co-conspirators allegedly ordered the victims into their closet and told them to remain there for twenty minutes and not call the police or they would be shot.

After he was convicted, Martinez appealed, claiming, inter alia, that the subject statement was inadmissible Arizona Rule of Evidence 801(d)(2)(E) and that its admission violated the Confrontation Clause. The Court of Appeals of Arizona, Division One, disagreed, concluding that

at the time the statement was made, the crimes against this couple had not yet ended. The crimes ended only after the co-conspirators fled the scene of the home invasion and withdrew money using [one of the victim]'s PIN and ATM card. The statement that the homeowners were in the closet praying served to assure the other co-conspirators that the homeowners were not likely to be calling police immediately, and accordingly that the co-conspirators had time to escape and withdraw money from the victims' bank account at the ATM. The court did not err by finding that the statement was made by a co-conspirator in the course of and in furtherance of the conspiracy.

-CM