STATE OF FLORIDA, PETITIONER,
v.
JESSIE HAYNES, RESPONDENT
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The State challenged a pretrial order excluding hearsay statements of alleged co-conspirators in a first-degree murder case. The court held that hearsay statements by co-conspirators are admissible if made during the conspiracy in furtherance of its objectives and supported by independent evidence of the conspiracy, and found sufficient independent evidence here.
Hearsay statements made by alleged co-conspirators during the pendency of a conspiracy and in furtherance of its objectives are admissible against a defendant if there is independent evidence of the conspiracy. The court declined to adopt a specific test but held that the evidence presented was sufficient to meet even a strict preponderance of the evidence standard.
[1] A pretrial order excluding hearsay statements of alleged co-conspirators is not appealable under rule 9.140(c), Florida Rules of Appellate Procedure.
[2] Certiorari is the proper remedy when a trial court's ruling excluding evidence is legally erroneous and no other remedy will be available upon appeal from a final disposi…
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Join FLexlaw to unlock all legal intelligence“[W]hen a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by every one of them and may be proved against each.”
Establishes the general rule for admissibility of co-conspirator hearsay statements when conspiracy is proven
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Join FLexlaw to unlock all legal intelligenceRespondent was charged with first degree murder and his trial ended in mistrial. The State sought pretrial ruling on admissibility of hearsay statemen…
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OTT, Judge.
The state appealed a pretrial order excluding hearsay statements of alleged co-conspirators. Such an order is not appealable under rule 9.140(c), Florida Rules of Appellate Procedure. We treat the notice of appeal as a petition for writ of certiorari and grant it.
Respondent was charged with first degree murder; he was not charged with the crime of conspiracy. Respondent’s original trial ended in a mistrial. Thereafter, the state filed a motion in limine, seeking a pretrial ruling on the admissibility of hearsay statements made by alleged co-conspirators Pauline and Leroy Wilson.
In Boyd v. State, 389 So. 2d 642, 644 (Fla. 2d DCA 1980), this court stated the general rule applicable to the case before us:
[W]hen a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by every one of them and may be proved against each. Brown v. State, 128 Fla. 762, 175 So. 515 (1937), clarified, 130 Fla. 479, 178 So. 153 (1938). Accordingly, a hearsay (out-of-court) statement of a defendant’s alleged co-conspirator is admissible against the defendant if the statement was made during the pendency of the conspiracy and in furtherance of its objectives, provided that there is evidence of the conspiracy independent of the hearsay testimony. The requirement of independent evidence is a condition of admissibility. Briklod v. State, 365 So. 2d 1023 (Fla.1978); Resnick v. State, 287 So. 2d 24 (Fla.1973).
We feel that the following testimony sufficiently established the conspiracy independent of the hearsay testimony. An attorney testified that the Wilsons had initiated proceedings to gain custody of their grandchild, the victim’s child. Horsman, an alleged co-conspirator, testified he and Respondent went to the Wilsons’ home, where Horsman suggested they plant drugs on the victim and then report her to law enforcement authorities. Horsman purchased the drugs with money Leroy Wilson gave him. Horsman and respondent then met Wilson, and the three drove to the victim’s house and left marijuana on her porch. The victim was not arrested as a result of this plan. Several days later Horsman and respondent went to the Wil-sons’ home and met again with Pauline and Leroy Wilson. Horsman left this meeting and waited outside for respondent. Respondent eventually came out and instructed Horsman to drive him to the victim’s home. Respondent was armed with a pistol. The victim was not at home. Hors-man asked respondent what he planned to do, and respondent replied, “Pauline wanted her killed.” When Horsman expressed his intent not to participate, respondent said he would take care of it himself.
Our supreme court has not adopted a test for the required quantum of independent proof of conspiracy. Briklod v. State, 365 So. 2d 1023, 1026, n. 5 (Fla.1979). Likewise, this court has noted that this point is debatable. Boyd, 389 So. 2d at 648.
The fourth district, in Saavedra v. State, 421 So. 2d 725, 727 (Fla. 4th DCA 1982), recently adopted the “preponderance of the evidence” test for establishing a defendant’s participation in a conspiracy prior to admission of co-conspirator’s statements. We feel that the evidence outlined above is sufficient to meet even the strict “preponderance of the evidence” test. However, we decline to adopt a particular test and merely hold that in this case there was sufficient evidence of a conspiracy to allow the hearsay testimony of the Wilsons to be admitted in evidence.
Certiorari is the proper remedy here because the trial court’s ruling excluding the evidence is legally erroneous, and no remedy will be available to the state upon appeal from a final disposition of the case. See State v. Busciglio, 426 So. 2d 1233 (Fla. 2d DCA 1983).
The order of the trial court is QUASHED. Petition for writ of certiorari GRANTED.
HOBSON, A.C.J., and DANAHY, J„ concur.
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State v. Raphael Morales, 460 So. 2d 410 (Fla. 2d DCA 1984)…ts in order to justify admitting into evidence against the defendant hearsay statements by alleged co-conspirators. Florida case law has not contained the complete answer. See Brikold v. State, 365 So. 2d 1023, 1026 n. 5 (Fla.1978); State v. Haynes, 453 So. 2d 926 (Fla. [*412] 2d DCA 1984); Tresvant v. State, 396 So. 2d 733, 740 n. 10 (Fla. 3d DCA), petition for review denied, 408 So. 2d 1096 (Fla.1981). We conclude, as explained below, that the appropriate test is included in a two-part test which is that su…
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Nelson v. State, 490 So. 2d 32 (Fla. 1986)…ubstantial independent evidence of the conspiracy and the appellant’s participation in it. Damon v. State, 289 So. 2d 720 (Fla.1973); Honchell v. State, 257 So. 2d 889 (Fla.1971); State v. Wilson, 466 So. 2d 1152 (Fla. 2d DCA 1985); State v. Haynes, 453 So. 2d 926 (Fla. 2d DCA 1984). See § 90.803(18)(e), Fla.Stat. (1983). While the state did intro duce evidence of Nelson’s presence in the Baskovich home, there is insufficient non-hearsay evidence that Nelson was involved in a conspiracy to murder Baskovich. T…
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State v. Hill, 501 So. 2d 39 (Fla. 2d DCA 1986)…ari review, and that in seeking certiorari review the state was relying upon the long-standing practice of the district courts to exercise certio-rari jurisdiction over orders presented in criminal cases as non-appealable, see, e.g. State v. Haynes, 453 So. 2d 926 (Fla. 2d DCA 1984); State v. McPhadder, 452 So. 2d 1017 (Fla. 1st DCA 1984); State v. Williams, 442 So. 2d 240 (Fla. 5th DCA 1983), and that the district courts are under a mandate not to dismiss causes because an improper remedy has been sought, Ar…
Authorities Cited
- Brown v. State, 130 Fla. 479 (Fla. 1938)
- Boyd v. State, 389 So. 2d 642 (Fla. 2d DCA 1980)
- Postal Tel. & Cable Co. v. Bart Doyle, 128 Fla. 707 (Fla. 1937)
- Errol Resnick v. State, 287 So. 2d 24 (Fla. 1973)
- Jules Briklod v. State, 365 So. 2d 1023 (Fla. 1978)
- Brown v. State, 128 Fla. 762 (Fla. 1937)
- Saavedra v. State, 421 So. 2d 725 (Fla. 4th DCA 1982)
- State v. Busciglio, 426 So. 2d 1233 (Fla. 2d DCA 1983)