The Court of Appeals of Georgia has held that a conspirator’s statements made after his arrest which incriminate a co-conspirator are only admissible against the conspirator who made the statements, since such statements effectively end the conspiracy. The court also held that allowing statements from the interrogation of a non-testifying conspirator is a violation of the defendant’s right to confront those who testify against him.
In Verdree v. State, the defendant, Verdree, was convicted by a jury of armed robbery, kidnapping, aggravated assault, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon. Between November 1997 and March 1998, three Taco Bell restaurants were robbed. In each case, the robber would enter the targeted restaurant when it opened for business and threaten the employees with a silver handgun. The robber would then order an employee to open the safe and force the employees into a large refrigerator.
Victims from the first two robberies stated that they could see that the robber was missing a front tooth even though part of his face was covered with a stocking cap. Surveillance videotapes also revealed images of the robber’s face. Investigators also asked Verdree’s mother if the man in the pictures was Verdree or one of his brothers. The mother allegedly replied that she could tell it was Verdree, since the man in the photo had a broken tooth. At trial, the mother explained her statements by saying that she meant the man in the photo looked more like Verdree than her other children. Investigators then attained an arrest warrant for Verdree and went to his girlfriend’s home. Officers saw Verdree through the window along with his girlfriend and cousin. His cousin, Roberts, answered the door and told the officers that Verdree was not there. Upon searching the home, police found Verdree hiding along with a silver handgun which belonged to Roberts.
Police soon discovered that a car seen in the surveillance video belonged to Roberts, and he was subsequently arrested. During interrogation, Roberts explained that he didn’t know of the robbery before or after it occurred, but that he had driven Verdree to the specific Taco Bell on the morning in question. At trial, an investigator told the jury what Roberts had said during interrogation, and Verdree was subsequently convicted.
On appeal, Verdree argued that Roberts’ statements should not have been admissible at trial. The appellate court agreed. Under Georgia law, a conspirator’s post-arrest statements to police incriminating a co-conspirator terminate the conspiracy. As a result, the statements can only be used against the conspirator that made the statements. Furthermore, allowing Roberts’ testimony violated Verdree’s Sixth Amendment right to confront his accuser, since Verdree did not have an opportunity to cross-examine Roberts at trial. The court deemed this violation to be harmful error, because Roberts’ statements were the only pieces of undisputed evidence which placed Verdree at the Taco Bell on the morning of the final robbery. For these reasons, the appellate court ordered that Verdree receive a new trial. However, Verdree may be retried on all counts.
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