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Confrontation – Coconspirator’s Statement “Non-Testimonial” – Reliable under Ohio v. Roberts

State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis

Issue/Holding1: Statement of coconspirator during drug transaction, conveyed to jury via police informant buying drugs as part of controlled buy, not “testimonial”:

¶25      We do not think an objective witness would reasonably believe that Vongrasamy would have thought his informal telephone conversation with his roommate would be available for use at a later trial. Although Neuaone in fact was a police informant, it borders on the fantastic to imagine that Vongrasamy’s remarks, which included offering refreshments to Neuaone, were coerced or otherwise influenced by that fact. In all probability, Vongrasamy believed Neuaone was there on his own initiative seeking to purchase drugs for himself or an associate. We conclude Neuaone’s government affiliation, which was unknown to Vongrasamy, had no impact on producing Vongrasamy’s statements.

This appears to be an easy call. It would be one thing, of course, to decide whether statements by an informant were “testimonial,” see e.g., U.S. v. Cromer, 389 F.3d 662, 674 (6th Cir. 2004) (statement knowingly made to authorities describing criminal activity “almost always testimonial”; therefore, informant’s statement to police implicating defendant held “testimonial”); U.S. v. Powers, 6th Cir No. 06-1684, 9/12/07; U.S. v. Hearn, 6th Cir No. 06-5854, 9/11/07. But here, the informant testified; the challenged statements were unknowingly made to the informant. Though the court of appeals doesn’t cite any supporting authority for its conclusion, it exists in relative abundance, and the result seems beyond reproach. See United States v. Hendricks , 395 F.3d 173, 181 (3rd Cir. 2005) (collecting authorities to effect that statement made during course of conspiracy non-testimonial). Of course, the flip side is: if the issue is as clear-cut as it appears to be, why bothering publishing it? Could just be a symptom of Crawford fever. The court goes on to distinguish Lilly v. Virginia, 527 U.S. 116 (1999) (accomplice’s custodial statement to police inadmissible against defendant); again, the discussion seems pretty obvious, ¶¶26-28. If you happen to be looking for a Lilly-type case, see Edward A. Murillo v. Frank, 402 F3d 786 (7th Cir. 2005), though keep in mind that it applied pre-Crawford analysis.

Issue/Holding2: Coconspirator’s statement held admissible under Ohio v. Roberts reliability test:

¶32      We conclude that the second part, whether the statement bears adequate indicia of reliability, also is satisfied. In the first place, these statements fall within a firmly rooted hearsay “exception” [4] as a matter of law, such that their reliability may be inferred without a showing of particular indicia of reliability. State v. Webster, 156 Wis.  2d 510, 522, 458 N.W.2d 373 (Ct. App. 1990). In addition, any inherent unreliability that might accompany coconspirator statements made during the course and in furtherance of the conspiracy is per se rebutted by the circumstances giving rise to the long history of admitting such statements. Lilly, 527 U.S. at 137; Bourjaily, 483 U.S. at 182-84.


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