B. Co-conspirator Acts and Declarations

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

B. CO-CONSPIRATOR ACTS AND DECLARATIONS

1. Acts

Once a conspiracy has been established, the acts and declarations of one conspirator in furtherance of the conspiracy are attributable to and admissible against all co-conspirators.⁵⁰ Acts and declarations in furtherance of the conspiracy are those that advance the conspiracy.⁵¹ Acts in furtherance of the conspiracy include "all incidental and consequential acts growing out of a general design."⁵² Once the conspiracy ends, however, this rule no longer applies.⁵³ While a conspirator's participation in a conspiracy ends with his arrest,⁵⁴ "a conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has defeated the conspiracy's object."⁵⁵ Furthermore, if a conspirator acts independently outside of the scope of the conspiracy, these independent acts are not attributable to co-conspirators.⁵⁶

In State v. Adams,⁵⁷ over a period of time two conspirators, Gray and Adams, agreed to traffic in cocaine by purchasing cocaine from each other and by purchasing cocaine in other states and bringing the cocaine into South Carolina. Gray was arrested and agreed to set up undercover buys for law enforcement. On one occasion, Gray set up a buy with the pair's cocaine source in Atlanta, which resulted in the source's arrest.

In affirming Adams' conviction, the court of appeals agreed with the lower court's ruling that this transaction was the act of a co-conspirator in furtherance of the conspiracy. While Gray was working with law enforcement, Adams and other co-conspirators continued the cocaine trafficking conspiracy. The act of purchasing the cocaine from the source was in furtherance of the conspiracy, which included Adams, even though Gray was working for law enforcement. The conspiracy for which Adams was arrested continued before and after Gray's arrest. Thus, the court of appeals held this transaction was not an independent act but rather was an act in furtherance of the conspiracy and admissible against all co-conspirators. "The participation of Gray did not terminate the conspiracy as to the others."⁵⁸

Another nuance of conspiracy jurisprudence in South Carolina is that a defendant's prior drug activity may be admissible. "It is not 'other crime' evidence if it arose out of the same series of transactions as the charged offense, or if it is necessary to complete the story of the crime on trial."⁵⁹ Therefore,

predicate evidence necessary to provide the context to the drug distribution scheme that took place within the charged time frame [is admissible.] By providing the jury with background information of the defendant's activities during the preparatory stages of the conspiracy, this evidence serve[s] to complete the story of the crime on trial. The evidence also show[s] the defendant's own distribution "subset" within the larger conspiracy, helping the jury to understand how the subset related to and became a part of the larger, charged conspiracy. [Thus,] the evidence [does] not constitute "other crimes" evidence under [South Carolina Rules of Evidence] 404(b), and the [evidence is] properly admitted as proof of the existence and structure of the charged drug distribution conspiracy. Moreover, actions of conspirators prior to a co-conspirator's involvement are admissible. Further, evidence of prior acts on the part of the conspirators that predate the conspiracy is admissible to show the background and development of the conspiracy, the relationship between the conspirators, and the significance of the later acts.⁶⁰

2. Declarations

a. Admissibility and the Rules of Evidence

(1) Co-Conspirator Statements

A co-conspirator's statement, which is made in furtherance of the conspiracy to other co-conspirators or to third parties, is a long-recognized exception to the hearsay rule.⁶¹ As adopted in the South Carolina Rules of Evidence 801(d)(2)(E): "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is not hearsay."⁶² Thus, the co-conspirator statements are admissions of a party-opponent and are not hearsay exceptions.⁶³ The State must present prima facie evidence of the existence of the conspiracy⁶⁴ as well as evidence that each defendant was a member of the conspiracy,⁶⁵ in order for all qualifying conspirator statements to be admissible against all other co-conspirators.⁶⁶ The order of proof is in the discretion of the trial judge, which means the conspirator's statements may be admitted prior to the State's establishment by prima facie evidence of the conspiracy and its members.⁶⁷ In addition, the indictment need not charge conspiracy for conspirator statements to be admissible against all other co-conspirators.⁶⁸ However, a conspirator's statement will only be admitted if there is evidence of the conspiracy independent of the statement. An indictment for conspiracy, in and of itself, is insufficient to establish the existence of the conspiracy because an indictment is not evidence on the conspiracy.⁶⁹

Conspirator statements are admissible as against all co-conspirators whether the conspirators are tried together or separately.⁷⁰ All conspirators are considered the agents of their co-conspirators; thus, the statement of one is considered to be the statement of all.⁷¹ However, "[s]tatements directed toward non-conspirators that merely inform the listener of the conspirator's activities are inadmissible as co-conspirator statements where no intent exists to induce participation in the conspiracy."⁷² In order to qualify as an admissible co-conspirator statement, the statement must be made (1) during the conspiracy and (2) in furtherance of the conspiracy.⁷³ Thus, statements made prior to the agreement or after the conspiracy ends are not admissible under the co-conspirator rule.⁷⁴ In addition, conspirator statements need not be made in the presence of other conspirators to be admissible.⁷⁵

The test for whether a statement is made in furtherance of the conspiracy is whether the statement "in some way tend[s] to advance the purpose of the conspiracy or promote the object of it."⁷⁶ "Statements made to induce enlistment, further participation, prompts further action, allay fears, or keep co[-]conspirators abreast of an ongoing conspiracy's activities are admissible."⁷⁷ In determining the statement's admissibility, a court must look at the statement from the declarant's point of view.⁷⁸ Requiring the statement to be made in furtherance of the conspiracy is "designed to assure the reliability of the declaration and to be consistent with [the] underlying premise of agency - that is; that the co-conspirator would have authorized the statement."⁷⁹ There, this requirement protects the defendant from being unduly prejudiced by statements of others "which are no more than idle chatter or are either inadvertently misreported or deliberately fabricated."⁸⁰

Generally, "a mere narrative statement serving no future or immediate purpose of the conspiracy does not satisfy the requirement, whether communicated to outsiders or to another conspirator."⁸¹ Moreover, statements that are merely "casual asides" to the main conversation⁸² as well as admissions of culpability or "spilling the beans" are not in furtherance of the conspiracy.⁸³ However, statements made to allay suspicion may be in furtherance of the conspiracy.⁸⁴ If statements of boast are used to gain the confidence of a co-conspirator, these statements also may be in furtherance of the conspiracy.⁸⁵

In State v. Anders,⁸⁶ the S.C. Supreme Court implied that statements of co-conspirators are not admissible against all co-conspirators under rule 801(d)(2). In a footnote, the S.C. Supreme Court stated:

The [co-conspirator's] statement was admissible against [the co-conspirator] as an admission. The fact that it was an admission by [the co-conspirator] does not render it automatically admissible against Anders. On the contrary, Rule 801(d)(2) provides a statement is an admission if it is "offered against a party and is (A) the party's own statement in either an individual or representative capacity . . . ." The statement here was not Anders' own statement, and was clearly therefore not admissible as an admission against Anders.⁸⁷

By this reasoning, the S.C. Supreme Court does not recognize the inclusion of co-conspirator statements in the admission rule. The S.C. Supreme Court seemed to indicate that co-conspirator statements are admissible against the declarant co-conspirator only.⁸⁸ However, the statement at issue in Anders was not in furtherance of the conspiracy and would not qualify as a co-conspirator admission admissible against all co-conspirators. Therefore, this footnote could also be read to mean that statements not qualifying as co-conspirator admissions, that is, statements not made during the conspiracy or not in furtherance of the conspiracy, are admissible against the declarant only, which is consistent with the rule of admissions. Although this footnote is strong dicta, its apparent ambiguity has not yet been resolved by the South Carolina appellate courts.

(2) Statements Against Penal Interest Hearsay Exception

In addition to the co-conspirator hearsay exception, the South Carolina Rules of Evidence provide for the admission of statements against penal interests as an exception to the hearsay rule.⁸⁹ A statement is against the declarant's penal interest if, when declared, the statement is so far contrary to the declarant's interests that it exposes the declarant to criminal liability, and "a reasonable person in the declarant's position would not have made the statement unless believing it to be true."⁹⁰ In determining whether a statement is inculpatory, a trial court must view the statement in context of all the circumstances.⁹¹

The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest that a reasonable person in the declarant's position would not

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