State v. Smith

¶1(concurring in result).

¶2I concur in the result.

¶3The statements made herein fall easily within the exception as adopted in Kane. Recognizing that the author of the majority opinion dissented on this issue in Kane, and the composition of the court has changed since Kane was written, I take exception to the narrowing of our decision in Kane because it is wholly unnecessary in order to reach the result in this case.

¶4(dissenting).

¶5Hearsay is not admissible as evidence unless found to fall within certain exceptions. See SDCL 19-16-4 for the general rule, and the exceptions in SDCL 19-16-3, SDCL 19-16-5 through SDCL 19-16-38. Three extra-judicial statements were entered into evidence and placed before the jury, over the strong objection of appellant Smith. Upon this evidence, appellant was convicted. All of these statements were rank hearsay and highly incriminatory. The statements do not fall under any exceptions to the rule against hearsay; therefore, their admission constituted prejudicial error in violation of the rules of evidence and the constitutional privilege to confront witnesses.

¶6The State hinges its conviction on subsection 5 of SDCL 19-16-3, which provides: “A statement is not hearsay if it is offered against a party and is ... (5) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.” In order to fall within this exception, three conditions must be met. First, there must be substantial evidence of a conspiracy; second, a declaration must have been made while the conspiracy was continuing; and third, the statement must have constituted a step in furtherance of the venture. State v. Kane, 266 N.W.2d 552 (S.D.1978).

¶7The three extra-judicial hearsay statements occurred in the late fall of 1980 and the early winter of 1981. This was six months after the September 8, 1980 theft of the Peterbilt truck. It occurs to me that the conspiracy to steal the truck had expired upon completion of the theft. Appellant was convicted of aiding, abetting, and/or advising in planning or committing the crime of theft, not conspiracy.1 Thus, these statements were not made “during the course and in furtherance of the conspiracy.” They were made after the objective of the conspiracy had been achieved. See Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). “A conspiracy is terminated when its purpose has been accomplished, i.e., the target offense has been committed_” C. Torcia, 4 Wharton’s Criminal Law § 735 (14th ed. 1981).

¶8I cannot fathom how the majority can view these statements as constituting a step in furtherance of the venture. To say that “Jack was with me on the deal” begs the question “who is Jack?” Apparently, Blakey had three associates by the name of Jack. Further, the word “deal” does not necessarily reflect a continuing conspiracy; rather, it begs the question as to whether or not the reference was to the theft of the Peterbilt truck on September 8, 1980. Mind you, this statement was made just short of six months after this theft. The majority opinion reaches to find that the declaration was made by Blakey while a conspiracy was continuing. Although the result of a conspiracy may be continuing, the conspiracy does not thereby become a *346continuing one. The conspiracy ends when its aim has been achieved. J. Weinstein & M. Berger, 4 Weinstein’s Evidence, if 801(d)(2)(E)[01] at 179-80 (1981). In this case, the fruits of the crime, as I understand it, had been disposed of prior to the extra-judicial hearsay statements. The theft had long occurred and the conspiracy to steal the truck had expired.2

¶9“Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible on the theory that it was made in furtherance of the alleged criminal ... undertaking.” Krulewitch, 336 U.S. at 442-43, 69 S.Ct. at 718, 93 L.Ed. at 794. The statements do not fall within the exception to the hearsay rule which this Court set forth in Kane. Therefore, the reasoning of Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), with regard to accepted violations of confrontation clause values, is not applicable. Because these statements, constituting rank hearsay and not falling within any exception to the rule against hearsay, were admitted into evidence, this appellant was denied the right to meet the witnesses against him face to face. U.S.Const, amend. VI; Article VI, § 7 of the South Dakota Constitution provides:

In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. (Emphasis supplied mine.)

¶10I, therefore, respectfully dissent for the reason that the objectives of the concerted action had been accomplished prior to the making of any statements implicating Smith. As the statements were not in furtherance of any conspiracy, they did not fall within the co-conspirator hearsay exception. Appellant was prejudiced by their admission and denied his constitutional right of confrontation of witnesses. By implementation of federal rule,3 by interpretation thereof, by judge-made law, the plain language of the federal and state constitutions has been violated. Rules of evidence should not be elevated over constitutional guarantees. Devastating it was for these two video tapes to be shown to the jury with the witness saying that the accused (“Jack”) was in with him on the theft (“deal”). The jury saw and heard two films on hearsay. The accused timely objected by written motion to suppress but was overruled. I would reverse the conviction and remand for a new trial.