Meador v. State
| Decision Date | 26 June 1991 |
| Docket Number | No. 101-90,101-90 |
| Citation | 812 S.W.2d 330 |
| Parties | Audrey MEADOR, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Odis R. Hill, Longview, for appellant.
Rob Foster, Atty., Pro Tem., Longview, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
The appellant, Audrey Meador, was convicted by a jury of criminal solicitation of capital murder. See Tex. Penal Code Ann. § 15.03(a) & § 19.03(a)(3). The jury assessed punishment at life imprisonment and a $10,000.00 fine, which is within the proper range of punishment for a felony of the first degree. See Tex. Penal Code Ann. § 15.03(d)(1) & § 12.32. The Court of Appeals held the trial court erred when it admitted a taped telephone conversation into evidence because it contained inadmissible hearsay and, finding that the error was not harmless, reversed the conviction and remanded the case for a new trial. See State v. Meador, 811 S.W.2d 612 (Tex.App.-Tyler 1989). We granted the State's petition for discretionary review on the sole issue of whether the court of appeals erred when it held that a taped telephone conversation The evidence reflects that Wayne Hutson was murdered the night of September 17, 1985 and law enforcement officers discovered his body on September 18, 1985 in the back of his own van which was parked on an isolated oil well field just outside Longview. He died from one gunshot wound to the chest.
was erroneously admitted into evidence because it failed to meet the requirements of Tex.R.Crim.Evid. 801(e)(2)(E). We will affirm the court of appeals.
The State's case was based on the theory that appellant paid two individuals, Ben Sheffield and Titus McKee, to kill Wayne Hutson. Appellant was to pay McKee and Sheffield $6,000. that they in turn would divide in payment for their respective roles in the offense. Sheffield's 1 role was to locate someone who would agree to be the "triggerman" and to see that the murder was carried out. Sheffield was an intermediary between appellant and McKee, who was the "triggerman," although appellant had spoken directly to McKee on occasion.
The first significant lead in the investigation of Hutson's murder case came from information provided by Ben Sheffield, in jail at that time on an unrelated delivery of controlled substances charge. Sheffield contacted Larry Ray Smith, Captain of the Criminal Investigation Division of the Gregg County Sheriff's Department, through an attorney and ultimately a statement was taken from Sheffield in which McKee was implicated in the murder of Hutson. The Gregg County District Attorney's office entered an agreement with Sheffield that he would receive a reduced sentence if he would furnish information that would lead to an arrest in the Hutson murder case but that all deals would be off if it was later found that Sheffield was involved in the murder. Sheffield told police that McKee killed Hutson but denied any involvement on his part. Titus McKee was arrested and indicted for the offense of capital murder for the death of Hutson based on the information supplied by Sheffield. Sheffield testified against McKee at an examining trial held for McKee.
After spending five months in jail on capital murder charges and professing his innocence, McKee gave the police a written confession which implicated Sheffield and appellant. Although all parties concerned denied any agreement between the State and McKee, the charge against McKee was reduced from capital murder to murder after McKee gave his confession implicating the others.
The record shows that McKee's May 2, 1986 oral statements and his written confession provided the information which brought about appellant's arrest and her initial indictment for capital murder. The capital murder charge was then abandoned and appellant was indicted for solicitation of capital murder, for which offense she was convicted and is the subject of this appeal.
Sheffield, who was indicted for the capital murder of Hutson, did not testify at appellant's trial. As the court of appeals opinion correctly points out, the only direct testimony of appellant's alleged solicitation of McKee to kill Hutson for money came from the mouth of the accomplice witness, Titus McKee. 2
At issue in this case is the admissibility of a taped telephone conversation between Sheffield and McKee which was admitted into evidence. On May 7, 1986 Larry Ray Smith, Captain of the Criminal Investigation Division of the Gregg County Sheriff's Department, set up a recorded telephone call where McKee would call Sheffield and engage in conversation that would hopefully implicate appellant. At this time McKee was in the custody of the Gregg County Sheriff and an inmate of the Gregg County Jail on charges of capital murder for the murder of Hutson. Smith testified to the circumstances surrounding the taping of the telephone conversation. Smith testified that on May 7, 1986 (7 months and twenty-two days after the murder) he attached a Sheffield, who happened to be at his brother's house at the time the call was made, picked up the phone. McKee proceeded to ask Sheffield if he would contact "the lady" to ask her if she would provide assistance in raising money for McKee's bond and attorney's fees. Sheffield's reply was "I don't know, I can check you know" and "I can check." 3 The State contends that "the lady" actually refers to appellant. There was testimony from Officer Smith and Officer Anderson that Sheffield was seen at the Oil Bowl (a bowling alley at which appellant worked) soon after this telephone conversation was taped, but was never actually seen talking with appellant. 4
recording device to the telephone in his office. Present were McKee, Smith, Melinda Ellis and another law enforcement officer. Smith dialed the telephone number of Sheffield's brother for the purpose of getting Sheffield's telephone number. Melinda Ellis, another employee of the Gregg County Sheriff's Department, acted as a telephone operator to make it appear that the call was being made from the Gregg County Jail since all calls from inmates must be collect calls.
The Twelfth Court of Appeals held that the trial court erred in admitting the tape into evidence, over a timely objection, because the conversation did not qualify as a statement by a coconspirator during the course of the conspiracy and in furtherance thereof and therefore failed to meet the requirements of Rule 801(e)(2)(E), supra.
The question presented is whether this statement meets the requirements of Tex.R.Crim.Evid. 801(e)(2)(E), which provides: (e) a statement is not hearsay * * * * * (2) if the statement is offered against a party and is * * * (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. When two or more people take part in the commission of a felony, evidence of a conspiracy is admissible even though the substantive crime of conspiracy is not charged. See Roy v. State, 608 S.W.2d 645, 651 (Tex.Cr.App.1980). Moreover, the coconspirator exception to the hearsay rule is similarly not limited to prosecutions for conspiracy; it is a rule of evidence applicable to any offense. See Id. The court of appeals found that the statements were made neither "during the course" nor "in furtherance" of the conspiracy.
The State first attacks the court of appeals finding that the statements were not made "during the course" of the conspiracy. In so finding, that the statements were not made during the course of the conspiracy, the court reasoned that the State's evidence was insufficient to prove that any promised remuneration under the conspiracy due the accomplices was unpaid at the time the statements were made and therefore the conspiracy had terminated. The State, however, points to various post-murder payments received by McKee and McKee's wife to support its contention that the conspiracy was still ongoing at the time the statements were made. The State contends that these payments were part of the remuneration appellant had promised McKee for his part in the murder of Hutson. The State presented evidence that appellant, after the murder had occurred, told McKee that she would pay for his lawyer and help support his wife. The record reflects that the last money received by either Gail or Titus McKee was a payment of five hundred dollars mailed in an envelope postmarked May 2, 1986, just five days prior to the taping of the telephone call. 5 By all the foregoing evidence the While the State's argument has some appeal we need not reach it since we cannot, in any event, reasonably find that McKee's conversation with Sheffield was "in furtherance" of the conspiracy. The Texas Rules of Criminal Evidence became effective September 1, 1986. The cases on which the State relies, predate the promulgation of the rules. 6 In cases decided before the effective date of the Rules of Evidence the "in furtherance" requirement of the "coconspirator rule" was either not recognized at all or if recognized, its interpretation was unsettled. See Williams v. State, 790 S.W.2d 643 (Tex.Cr.App.1990). However, this issue was settled in Williams where this Court held that the "in furtherance" of the conspiracy requirement of Rule 801(e)(2)(E) is a separate requirement that must be met in addition to the requirement that the statement be made "during the conspiracy." The proponent of the statement has the burden of showing, by a preponderance of the evidence, that the statement does in fact meet the requirements of Rule 801(e)(2)(E). See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2779, 97 L.Ed.2d 144 (1987); Ward v. State, 657 S.W.2d 133, 136-137 (Tex.Cr.App.1983).
State contends that the conspiracy was still ongoing at the time telephone conversation was taped, and that the court of appeals erred by finding otherwise.
It is the State's...
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