Rivenbark v. State

ADKINS, Judge. When the existence of a conspiracy has been established, declarations of a conspirator made during the pend-ency and in furtherance of the object of the conspiracy are admissible against another conspirator, Lawrence v. State, 103 Md. 17 , 63 A. 96 (1906). Whether this exception to the hearsay rule was properly applied is the central issue in this case. For reasons we shall explain, we hold it was not.

Consequently, we must reverse the felony murder conviction of appellant Billy Clayton Rivenbark. In an earlier appeal, Rivenbark v. State, 58 Md.App. 626 , 473 A.2d 1329 , cert. denied, 300 Md. 795 , 481 A.2d 240 (1984), we set forth some of the facts pertaining to the criminal event involved here. We need not repeat them all. It suffices to say that Rivenbark and Ronald Johnson were charged with the murder of Katherine Buress and with burglary of her house. 1 In the instant case, a jury in the Circuit Court for Baltimore County acquitted Rivenbark of premeditated murder and of second degree murder.

It found him guilty of felony murder and burglary. The court sentenced him to life imprisonment for the murder and to a 20-year concurrent term for the burglary. An important piece of evidence against Rivenbark was a statement made by Ronald Johnson to Shirley Wilson, with whom Johnson had been living at the time of the crimes. This statement, inculpatory of both Rivenbark and Johnson, was made to ³⁸¹ Wilson some six months after Ms. Buress’s death.

It was introduced via the testimony of Shirley Wilson, who had recorded it on a body wire, under police direction. The statement was, of course, hearsay. The trial court admitted it under the conspiracy exception to the hearsay rule. Rivenbark now contends that his felony murder conviction should be reversed because: 1.

The State violated the discovery rules when it failed to furnish the statement to Rivenbark pre-trial; 2. The statement was inadmissible under the conspiracy exception; and 3. The court should have required the jury to determine whether the statement had been made during and in furtherance of the conspiracy. Because we agree with Rivenbark’s second contention, we need not address the first and third.

The hearsay exception we stated at the outset of this opinion depends on the existence of a conspiracy; to be admissible against a conspirator, the statement must be made by another conspirator; it must be made during the course of the conspiracy; it must be made in furtherance of the conspiracy. Lawrence, supra. And see Greenwald v. State, 221 Md. 245, 249 , 157 A.2d 119 (1960). Moreover where, as here, the State seeks to use against one conspirator (Rivenbark) statements made by a conspirator (Johnson) to a third party (Wilson), the State must first demonstrate the existence of the conspiracy by evidence aliunde the statements.

Mason v. State, 18 Md.App. 130, 136-37 , 305 A.2d 492 (1972). The State argues that it has done this. In its view, there was evidence that Rivenbark and Johnson conspired to rob Ms. Buress. That conspiracy, the State argues, included a “conspiracy of silence” that was still in effect when, six months after the crimes, Johnson talked to Shirley Wilson about those crimes.

It is difficult to see just how Johnson’s remarks to Wilson were in furtherance of any “conspiracy of silence” between him and Rivenbark; Johnson’s discussion of the crimes with ³⁸² Wilson would seem to suggest the contrary. As the late Chief Judge Bond observed in Markley v. State, 173 Md. 309, 318 , 196 A. 95 (1938), “admissions ... of co-conspirators, out of the presence of the objectors, and in no way authorized by them, would not be competent evidence against them, for they would not be statements ... in furtherance of the conspiracy.” Other courts have noted that mere narrative accounts of a crime by one conspirator to a third party, given long after the crime and not in the presence of a co-conspirator are not admissible against the co-conspirator because they are not in furtherance of the conspiracy. State v. Borserine, 184 Kan. 405 , 337 P.2d 697 (1959); State v. Gauthier, 173 Or. 297 , 231 P. 141 (1924); 4 Wigmore, Evidence § 1079, p. 180, n. 1 (J. Chadbourn ed. 1972). The statement in this case is of that type.

But the “in furtherance” requirement has been read broadly, as Judge Karwacki pointed out in Thomas v. State, 63 Md.App. 337, 347 , 492 A.2d 939 (1985): “ ‘If some connection is established between the declaration and the conspiracy then the declaration is taken as in furtherance of the conspiracy’ ” (quoting Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159, 1168 (1954) [emphasis in original]. We pass that point and focus on whether Johnson’s statements were made during the pendency of a conspiracy. To support its “conspiracy of silence” argument, the State relies on Johnson v. State, 9 Md.App. 327, 341 , 264 A.2d 280 , cert. denied, 258 Md. 728 (1970). There, we said: ‘The theory for the admission of such evidence is that persons who conspire to commit a crime, and who do commit a crime, are as much concerned, after the crime, with their freedom from apprehension, as they were concerned, before the crime, with its commission.... ’ [quoting 2 Wharton’s, Criminal Evidence, § 430 (12th ed. 1955) ] The State also points to Chief Judge Gilbert’s language in Myers v. State, 58 Md.App. 211, 240 , 472 A.2d 1027 (1984): ³⁸³ The law is clear that the statement of a conspirator, made for the purpose of concealing the crime after the object of the conspiracy has been attained, is admissible against any co-conspirator on trial.

Such a statement is admissible as an exception to the hearsay rule____ [The statements in question] may reasonably be interpreted as having been made during the course of the conspiracy of silence after the murder, [citations omitted] Rivenbark, on the other hand, refers us to cases such as Lawrence and Greenwald, both of which indicate that a conspiracy continues only until it has been abandoned or until its purpose has been accomplished. Lawrence, 103 Md. at 22 , 63 A. 96 ; Greenwald, 221 Md. at 250 , 157 A.2d 119 . As we recently said in Thomas, 63 Md.App. at 347-48 , 492 A.2d 939 : By 'pendency’ we mean the duration of the unlawful agreement, but that does not mean that the conspiracy continues ad infinitum. The duration of a conspiracy is restricted to the accomplishment of its 'main aim.’ Lawrence and Greenwald are not of much help to Riven-bark.

Neither dealt with the State’s theory that when there is a conspiracy to commit a crime there is, by operation of law, a “conspiracy of silence” to conceal evidence of the crime, although both make clear that a statement made after termination of the conspiracy is not admissible against a co-conspirator. Thomas’s language is more to the point, since it suggests that a conspiracy to commit a crime ends when the “main aim” of the conspiracy is accomplished; that is, when the crime is committed. That would seem to reject the notion of an automatic “conspiracy of silence” but the Thomas panel did not have that issue before it. The statement admitted there was made while the crime the conspirators had conspired to commit was still in progress.

By the same token, Johnson and Myers , when closely read, give little support to the State. In the former case, the statements admitted had nothing to do with concealment of the crime or evidence of it; they recounted an event that had occurred during a bank robbery. What is more, ³⁸⁴ the statements were made in the getaway car, minutes after the robbery, while the robbers were in the process of escaping from the scene of the crime. The robbery, in effect, was still in progress.

See, e.g., United States v. Cox, 449 F.2d 679 (10th Cir.1971), cert. denied, 406 U.S. 934 , 92 S.Ct. 1783 , 32 L.Ed.2d 136 (1972), and State v. Newberry, 605 S.W.2d 117 (Mo.1980). The co-conspirator’s statements were admissible as statements made during the pendency of the conspiracy of that on-going crime. Our post-crime conspiracy language was unduly broad and unnecessary to the decision in the case. In Myers , Chief Judge Gilbert, just before the language we have quoted from that decision, noted evidence not only of a conspiracy to slay Myers’s wife, but also evidence of an explicit conspiracy “to ‘cover up’ [the involvement of the conspirators] in that murder.” 58 Md.App. at 240, 472 A.2d 1027 .

The subsequent reference to “the conspiracy of silence after the murder” clearly addresses that explicit conspiracy. This is a far cry from holding that whenever there is a conspiracy to commit a crime, the law implies a post-commission conspiracy to conceal evidence of the crime. The Maryland cases, then, hold that a .conspiracy to commit a crime ordinarily terminates when its “main aim” has been accomplished. Thomas, supra.

They do not compel us to the conclusion that the main aim of every such conspiracy also includes a “conspiracy of silence” that, under the State’s theory, could last for months or even years — who can tell? — after the consummation of the crime. On. this state of the law, we turn to decisions from other jurisdictions. A useful starting point for this review is Krulewitch v. United States, 336 U.S. 440 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949). Krulewitch was charged with, among other things, conspiracy with another to transport a woman from New York to Florida in violation of the Mann Act.

Part of the evidence used to convict Krulewitch was testimony of the victim who recounted a conversation with Krulewitch’s co- ³⁸⁵ conspirator; a conversation that took place over a month and a half after the victim had been transported to Florida, and indeed, after she had returned to New York. In the conversation the co-conspirator urged the victim not to talk and to take the blame for Krulewitch. The Government argued that this evidence was admissible because even after the termination of the central conspiracy an implied subsidiary phase of that conspiracy always survives — a phase with concealment as its objective. This argument the Supreme Court squarely rejected.

Justice Black pointed out that adoption of the rule espoused by the Government would create, virtually automatically in all criminal cases, a breach of the general rule against the admission of hearsay evidence, 336 U.S. at 444 , 69 S.Ct. at 718 . Justice Jackson, in a forceful concurrence, could find no basis for implying a continuing conspiracy for the purpose of concealment, although he recognized that an express conspiracy for that purpose could be proved in a proper case. 336 U.S. at 455-56 , 69 S.Ct. at 724 . He pointed out that the rule contended for by the Government suggested no limit to the implied conspiracy, either as to duration or means, and that the assumption of an indefinitely continuing conspiracy offense would result in an indeterminate extension