State Of Louisiana v. Kenneth Smith

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

STATE OF LOUISIANA NO. 2022 KW 0748
PAGE 1 OF 2

VERSUS

OCTOBER 11, 2022
KENNETH SMITH

In Re: Kenneth Smith, applying for supervisory writs, 19th
Judicial District Court, Parish of East Baton Rouge,
No. 12-17-0241.

BEFORE: WHIPPLE, C.J., GUIDRY AND WOLFE, Jd.

WRIT GRANTED. The district court’s March 9,, 2022 judgment
finding that relator’s co-defendant’s video recorded interview
with police officers, introduced as Exhibit $1, and audio
recorded jailhouse calls, introduced as Exhibit S2, are
admissible at trial pursuant to La. Code Evid. art. 801(D) (3) (b)
is reversed. A statement is not hearsay if it is offered
against a party and was made by a declarant while participating
in a conspiracy to commit a crime and in furtherance of the
objective of the conspiracy, provided that a prima facie case of
conspiracy is established. La. Code Evid. art. 801(D) (3) (b).
Before a co-conspirator’s declaration may be introduced under
this exception, the State must show: (1) a prima facie case of
conspiracy; (2) that the declaration was made while the
conspiracy was ongoing; and (3) that the declaration was made in
furtherance of the common enterprise. See State v. Dupree, 377
So.2d 328, 330 (La. 1979). The State failed to demonstrate that
the statements made by relator’s co-defendant were made during
the course of an ongoing conspiracy, and in furtherance of that
conspiracy; therefore, the statements are not admissible.
Moreover, out of court, testimonial statements, including
statements made during police interrogation, are inadmissible
where the defendant is unable to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004). The two video recorded statements given to officers
by relator’s co-defendant during police interrogation are
testimonial statements, and there is no evidence that relator
had a prior opportunity to cross-examine his co-defendant.
Accordingly, the video recorded statements introduced as Exhibit
Sl violate the confrontation clause and are inadmissible.

JMG
EW

Whipple, C.J., dissents. A statement is not hearsay if the
statement is offered against a party, and the statement was made
by a declarant while participating in a conspiracy to commit a
crime, in furtherance of the objective of the conspiracy,
provided that a prima facie case of conspiracy is established.
La. Code Evid. art. 801(D) (3) (b). After the State presents a
prima facie case of conspiracy, the defendant must then present
evidence showing his withdrawal from the conspiracy prior to the
time the statements were made by his co-conspirators. see State
v. Dyess, 2018-241 (La. App. 3d Cir. 11/7/18), 258 So.3d 1095,

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

NO. 2022 KW 0748
PAGE 2 OF 2

1100. Because I find that relator failed to present evidence
that he withdrew from the conspiracy prior to his co-defendant’s
statements, I find that the statements are admissible under La.

Code Evid. art. 801(D) (3) (b) and would deny the writ.

COURT OF APPEAL, FIRST CIRCUIT

q.cal)

DEPUTY CLERK OF COURT
FOR THE COURT