STATE OF LOUISIANA v. KENNETH SMITH (2023)

Writ application granted in part. See per curiam.

SUPREME COURT OF LOUISIANA

No. 2022-KK-01651

STATE OF LOUISIANA

VS.

KENNETH SMITH

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge

PER CURIAM

Writ granted. The court of appeal opinion is reversed in part to reinstate that portion of the trial court's ruling allowing into evidence Jamoriya Ben's inconsistent explanations to investigating officers about his gunshot wound. Those statements are not being offered for the truth of the matter asserted. See La. Code Evid. art. 801C. The court of appeal opinion is further reversed in part to reinstate that portion of the trial court's ruling allowing into evidence Ben's statements in the recorded telephone calls (1) requesting or referencing direct and indirect communications with “Ken,” and (2) directing others to retrieve Ben's cell phone. See La. Code Evid. art. 801D(3)(b). In all other respects, the writ application is denied.

At issue are statements made by alleged co-conspirator Jamoriya AFTER he was arrested and incarcerated. These statements were made during monitored jail-house phone calls with persons other than defendant.

Text messages between Jamoriya and defendant prior to the commission of the crime have already been ruled admissible and are not at issue in this writ. La. Code of Evid. Art. 801 D (3) (6) specifies the hearsay exception applies to a declarant “while participating” in a conspiracy. “While participating” is the present continuous tense indicating that the participant is actively taking part in the conspiracy at the time the statement is made. Thus the article would not seem to apply to actions taken or statements made after the crime has been committed and the conspiracy accomplished. While the article could conceivably be applied to post-crime activity such as fencing stolen loot or disposing of a weapon, the declarant here was already incarcerated and was not speaking with law enforcement. Jamoriya's statements therefore appear outside the scope of the article.

However, Jamoriya's statement “he did” in response to being told the media reported “that boy Ken shot you” would be admissible as a statement against interest or confession because it places him at the crime scene.

Hughes, J., dissents and assigns reasons. Genovese, J., would grant in part for the reasons assigned by Chief Judge Whipple's dissent.