EvidenceProf Blog

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

Wednesday, October 18, 2017

Supreme Court of Georgia Deems Statements Inadmissible as Co-Conspirator Admissions in Murder Trial

Similar to its federal counterpart, Georgia Rule of Evidence 801(d)(2)(E) allows for the admission of

A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

It seems fairly easy to determine when a statement is made during the course of a conspiracy, but when is such a statement made in furtherance of a conspiracy? That was the question addressed by the Supreme Court of Georgia in its recent opinion in State v. Wilkins, 2017 WL 4341400 (Ga. 2017).

In Wilkins, Nathaniel Willie Wilkins and Michael Dontaa Jones were indicted by a Chatham County grand jury for malice murder, felony murder, and aggravated assault arising from the execution-style shootings of Forrest Ison and Alice Stevens at their home in Thunderbolt, Georgia. Before trial, the State indicated that it planned to prove that Wilkins, Jones, and Tracy Burgess, the driver of the getaway car, attempted to avoid arrest after the murders by hiding in the homes of friends and family members in Georgia and South Carolina. Specifically, the State stated an intention to prove these claims by using the following statements by Jones, which it claimed were admissible under Rule of Evidence 801(d)(2)(E):

(1) A witness who worked with Jones testified at his trial that Jones displayed a pistol in his waistband and told the witness that the male victim got him fired and he and appellee lay in wait for him, “caught them at their house and went to rob them ... [the male victim] went bucking so he shot him”; his female companion “went to crying and yelling so we shot that b---- too.”
(2) An acquaintance of Jones and Wilkins informed the police that, while Jones and Burgess were at the witness' home, Jones stated that he and Wilkins were involved in a homicide. No sworn testimony appears in the record, and a police report narrative gives only the gist of the statement, but the State contends that the witness saw a gun which Jones concealed at his house.
(3) Jones' estranged wife testified before the grand jury that Jones told her that he “did something horrible” and “shot somebody.” The trial testimony referenced by the State is not included in the record.
(4) A police report states that Jones told another witness that he “got messed up in Thunderbolt.” The trial court noted in its order that this witness did not testify at Jones' trial, but his expected testimony was provided in the State's brief.
(5) Another police report states that Jones told Burgess' stepsister that an attempted robbery failed and that Wilkins “got cold feet,” so Jones shot the male victim, and then Wilkins shot the female victim. The trial testimony referenced by the State does not appear in the record, but the State contends the witness testified that she was trying to get to know her stepsister, “but they used me for something totally different.” 
(6) Burgess testified at Jones' trial that Jones told her “he got another body.” She also testified, outside the presence of the jury, that Jones wrote her a letter from jail instructing her to put the blame for the murders on Wilkins and a fictitious third party.

The trial court, however, deemed all of these statements inadmissible under Rule 801(d)(2)(E). In addressing the State's ensuing appeal, the Supreme Court of Georgia noted that the Eleventh Circuit applies

a liberal standard in determining whether a statement was in furtherance of a conspiracy. The statement need not be necessary to the conspiracy, but must only further the interests of the conspiracy in some way. Statements made to solicit membership or participation in the conspiracy and statements explaining the conspiracy to a new member are made in furtherance of the conspiracy.

That said, the court then noted that

this liberal standard is not without limits. A “retrospective statement” regarding matters that have already occurred, and that is not intended to foster involvement in the conspiracy, is not a statement in furtherance of the conspiracy.

Applying these standards, the court ruled as follows:

With respect to the first witness, Jones' coworker to whom he displayed a pistol, the State suggests that Jones “was likely attempting to gain [the witness'] trust and confidence.” But the record does not demand this conclusion. The witness testified that he did not want to hear about it, although Jones told him, “You cool.” But his concern was not that he was being enlisted into the crime, as the State contends, but that he might be called to testify in court. The State further argues that Jones “was possibl[y] threatening [the witness] into silence.” But the only threat testified to by this witness was made by Wilkins himself in a separate incident the following year, after the witness went to the police with his story. The trial court's conclusion that the statement was merely retrospective was not clearly erroneous, and the court did not abuse its discretion in so holding.

The State argues with respect to Jones' statements to his estranged wife that Jones was “furthering his concealment” by hiding in a place he was not likely to be. But even if Jones was attempting to avoid apprehension, the trial court could reasonably conclude that the incriminating statement that he made to his estranged wife did not further the concealment in any way, but “served only to disclose the scheme,” and “inform[ed] the listener of the declarant's activities.”...Similarly, the fact that Jones showed a firearm to an acquaintance while he and Wilkins were at his home, and attempted to conceal it there, may have indicated an attempt to hide the murder weapon and thus avoid detection, but the trial court's conclusion that the revealing of this fact to the witness and Jones' incriminating statement did not further the conspiracy was not clearly erroneous. The trial court did not abuse its discretion in excluding these statements.

The State also contends that statements Jones allegedly made to Burgess' stepsister furthered the conspiracy, because the witness testified that “she was being used for the purpose of hiding” and thus the statements were made to encourage her to do so. But her proposed testimony—as described by the State in its brief—was rather that she believed that her stepsister and Jones wanted to get to know her better, but that she discovered that “they used [her] for something totally different.” Moreover, this witness told the police that Jones revealed the murders while he was drinking, and that when she “learned of the murder, she put them out of her house.” This evidence supports the trial court's conclusion that Jones' statement was not in furtherance of the conspiracy, and it did not abuse its discretion in so holding.

Finally, the State asserts that Jones' statements to co-conspirator Burgess that he “got another body,” were “made in an effort to keep her in the conspiracy and on co-conspirator Jones's side.” But, as the trial court observed, Jones' urging Burgess to put the blame on Wilkins and a fictitious individual was merely a statement implicating a co-conspirator, not in furtherance of the conspiracy, and therefore not admissible....The State has suggested no possible motivation to further the conspiracy in the remaining statements presented.

I agree with the court's conclusions. For a statement to qualify as a co-conspirator admission, it has to be a statement that really furthers the conspiracy, which is when agency principles come into play. And it seems clear to me that the statements at issue in this case fell short of that mark.



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