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Evidence – Hearsay – Co-Conspirator’s Statement, § 908.01(4)(b)5.

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

Issue/Holding: ¶32, n. 4:

A statement made by a coconspirator in furtherance of the conspiracy is not a hearsay “exception”; it expressly is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04). While hearsay “exemption” is a more appropriate term, statements made under this subsection commonly are analyzed as hearsay and termed hearsay “exceptions.” See, e.g., State v. Webster, 156 Wis. 2d 510, 522, 458 N.W.2d 373 (Ct. App. 1990) (stating that a statement of a coconspirator “falls within a firmly-rooted hearsay exception as a matter of law”), and Caccitolo v. State, 69 Wis. 2d 102, 108, 230 N.W.2d 139 (1975) (discussing the change in the statutory language regarding the admissibility of a “hearsay statement of a coconspirator”). The same is true of the terminology used in discussing its federal counterpart, Fed. R. Evid. 801(d)(2)(E). See, e.g., Bourjaily v. United States, 483 U.S. 171, 182-83 (1987) (stating that no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception and the coconspirator exception is firmly rooted enough to warrant foregoing the reliability inquiry).

Issue/Holding: Non-testifying coconspirator’s statement, made during drug transaction resulting in charge against defendant, held admissible:

¶16      An out-of-court statement made by a coconspirator in furtherance of the conspiracy is not hearsay. Wis. Stat. § 908.01(4)(b)5. (2003-04); State v. Blalock, 150 Wis.  2d 688, 699, 442 N.W.2d 514 (Ct. App. 1989). A statement is made “in furtherance of the conspiracy” when the statement is part of the information flow between conspirators intended to help each perform his or her role. United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997). [3] A statement of a coconspirator that is not hearsay as provided by § 908.01(4)(b)5. may be used as evidence against another member of the conspiracy.  Blalock, 150 Wis.  2d at 699. The trial court’s determination to admit this evidence represented a proper exercise of its discretion.…

¶33      We hold that Vongrasamy’s casual statement to an acquaintance about getting a pack of cocaine, which statement was overheard by someone the declarant did not know was a police informant, does not bear the hallmarks of formality necessary to render it “testimonial” within the meaning of Crawford. We affirm the trial court.

 [3]    United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997), addressed Fed. R. Evid. 801(d)(2)(E), the identical counterpart of Wis. Stat. § 908.01(4)(b)5. See State v. Patino, 177 Wis.  2d 348, 372, 502 N.W.2d 601 (Ct. App. 1993).


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