State v. Tilley

• Decision Date: 07 March 1977
• Docket Number: No. 86,86
• Citation: 232 S.E.2d 433,292 N.C. 132
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Brady TILLEY and Harold Glenwood Jordan.

Page 433

232 S.E.2d 433

292 N.C. 132

STATE of North Carolina v. William Brady TILLEY and Harold Glenwood Jordan.

No. 86.

Supreme Court of North Carolina.

March 7, 1977.

Atty. Gen. Rufus L. Edmisten by Senior Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Zoro J. Guice, Jr., Raleigh, for the State.

Malcolm B. Grandy, Raleigh, for William Brady Tilley, defendant.

A. D. Folger, Jr., George T. Fulp, and Ronald M. Price, Madison, for Harold Glenwood Jordan, defendant.

COPELAND, Justice.

Appellants' first assignment of error relates to the admission in evidence of certain incriminating statements and actions which were made out of the presence of one or both of the defendants. Although defendants stress their absence on these occasions, we find this factor to be irrelevant to the determination of the admissibility of the challenged evidence. At the core of defendants' objections is the hearsay rule. When declarations and acts intended as declarations are offered for the purpose of proving the truth of the matters asserted therein and depend for their probative value on the competency and credibility of an out-of-court declarant, they are classified hearsay and are usually inadmissible. 1 Stansbury's N.C. Evidence, § 138 (Brandis Rev. 1973).

But where the proffered testimony consists of extrajudicial declarations offered for the purpose of proving the truth of the matters stated, it is admissible in the face of a hearsay objection if the declarations were made by a party to a criminal conspiracy during the course of and in pursuit of the goals of the illegal scheme. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969); 2 Stansbury's N.C. Evidence, § 173 (Brandis Rev. 1973).

The rule allowing into evidence statements by a co-conspirator is not an exception to the hearsay rule under the rules of evidence. Incriminating statements or acts are admissible against the declarant or actor as an admission not violating the hearsay rule because the declarant or actor cannot be heard to complain about not having a right to cross-examine himself. By a rule of substantive law, vicarious liability for the same acts and declarations is extended to the declarant or actor's co-conspirators. 2 Stansbury's N.C. Evidence, §§ 167, 168, 173 (Brandis Rev. 1973); IV Wigmore on Evidence, §§ 1048, 1079 (Chadbourn Rev. 1942).

According to the general rule, when the State has introduced Prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members Regardless of their presence or absence at the time the acts and declarations were done or uttered. State v. Conrad, supra, See State v. Branch, supra; State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932). Before the acts or declarations of one conspirator can be considered as evidence against his co-conspirators, there must be a showing that '(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended.' State v. Lee, 277 N.C. 205, 213, 176 S.E.2d 765, 769--70 (1970); State v. Conrad, supra, 275 N.C. at 348, 168 S.E.2d at 43.

The conspiracy must be established independently of the declarations or acts sought to be admitted. State v. Wells, 219 N.C. 354, 13 S.E.2d 613 (1941); Bryce v. Butler, 70 N.C. 585 (1874). Ideally, the State should first establish a Prima facie case for the existence of the conspiracy with extrinsic evidence and then tender the declarations and acts of the conspirators linking them to the criminal venture. This order of proof is not always feasible and can be altered. 'Sometimes for the sake of convenience thE acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent state of the cause.' State v. Jackson, 82 N.C. 565, 568 (1880). 'Because of the nature of the offense courts have recognized the inherent difficulty in proving the formation and activities of the criminal plan and have allowed wide latitude in the order in which pertinent facts are offered in evidence. '(A)nd if at the close of the evidence every constituent of the offense charged is proved the verdict rested thereon will not be disturbed . . ..' (Citations omitted.)' State v. Conrad,supra, 275 N.C. at 347, 168 S.E.2d at 43.

Applying these principles to the separate assignments of error raised by the defendants, we find no error in the admission of the challenged evidence. We believe the prosecution sufficiently established a Prima facie case of conspiracy on the part of defendants Jordan, Tilley and Smith to assault Winfred Hall with a firearm by evidence other than that now challenged. The exact moment when the three conspirators agreed on their evil scheme cannot be fixed with any certainty; however, it seems clear that the agreement had been reached by the time Harold Jordan and Brady Tilley returned to J. V. Smith's trailer after taking Hall home. At that point, J. V. Smith and Brady Tilley went into the bedroom of the trailer and borrowed the keys to Larry Hodge's car. This action and the exchange of conversation accompanying it were made during the pendency and in furtherance of the conspiracy and so were admissible equally against Brady Tilley and Harold Jordan. State v. Branch,supra; State v. Conrad, supra. Harold Jordan's absence during this period is irrelevant to the admissibility of this evidence against him. Defendants' exceptions 19--30, 36--37 are overruled.

Defendants object to testimony by numerous witnesses that they observed J. V. Smith carrying and brandishing a pearl handled, .25 caliber, automatic pistol during the day and evening of the murder. The objection is premised on the fact that these acts of co-conspirator Smith were before the conspiracy was entered, not in furtherance of its illegal design, and out of the presence of defendants Tilley and Jordan. While all these assertions are true, they are irrelevant.

We have said on numerous occasions, without clarification, that 'a different rule applies to acts and declarations made before the conspiracy was formed or after it terminated. Prior or subsequent acts or declarations are admissible only against him who committed the acts or made the declarations.' State v. Conrad, supra at 348, 168 S.E.2d at 43; accord, State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Lee, Supra. On the facts of the present case it is appropriate to examine the rules which apply to acts or declarations of a conspirator committed or said outside the pendency of the conspiracy.

It does not necessarily follow that these acts or declarations are always inadmissible. Acts done by a co-conspirator before or after the conspiracy, which were not intended as declarations, are not hearsay and thus are competent evidence, assuming their relevance. Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Any statements in our cases that may have indicated that acts by co-conspirators outside the pendency of a conspiracy are inadmissible, are not applicable to acts not intended as a means of expression.

Relevant declarations or admissions by one conspirator not made during the life of the conspiracy or in furtherance of its objectives are admissible 'only as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration.' Lutwak v. United States, supra at 619, 73 S.Ct. at 490, 97 L.Ed. at 604.

Smith's act in carrying a pistol was not intended as a declaration. Hence it matters not whether the prosecution had established a Prima facie case for the existence of the conspiracy at all times that Smith was seen with the gun. This evidence was within the personal knowledge of the testifying witnesses and was not hearsay. Defendants' exceptions 14--18 are overruled.

Similarly, Julia Pruitt's testimony that she later threw this gun away in the pasture behind her trailer was admissible. Of her own knowledge, she explained how she gained possession of Smith's pistol, disposed of it and later led law enforcement officers to it. State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951). Her evidence was probative and not hearsay. The fact that she threw the pistol away after termination of the conspiracy and that she did so out of the presence of the defendants is irrelevant. Defendants' exceptions 47--49 and 52--53 are overruled.

The conspiracy exception to the hearsay rule is strictly limited to those acts and declarations made before success, failure or abandonment has terminated the conspiracy. Krulewitch v. United States, 336 U.S. 440, 336 S.Ct. 716, 93 L.Ed. 790 (1949); State v. Branch, supra; Annot., 4 A.L.R.3d 671, 678 (1965). Moreover, it has been held that absent special allegation and proof, the courts will not allow into evidence statements that were made after the attainment of the criminal project on the theory that there existed a secondary and continuing conspiracy to conceal the fact of the first crime. Krulewitch v. United States, supra; Lutwak v. United States, supra; Annot., 4 A.L.R.3d 671, 746 (1965).

However, several jurisdictions have recognized a Res gestae exception to the above stated rule for declarations and acts made immediately following the achievement of the goal of the conspiracy. Annot., 4 A.L.R.3d 671, 737. See State v. Wells, supra (dictum supports this exception). And, as noted earlier, Actions performed after the termination of a conspiracy are admissible against all the conspirators if they are probative and not meant as declarations. Anderson v. United States, supra; Lutwak v. United States, supra. Hence we find no error in allowing into evidence testimony that J. V. Smith ...