In murder for hire trial, testimony that another person asked if declarant knew anyone who could complete the murder was admissible as a verbal act; any error in admitting the statement was harmless based on other evidence of guilt, in United States v. Childs, __ F.3d __ (6th Cir. Aug. 29, 2008) (Nos. 07-1495, 07-1597)
The Sixth Circuit addressed whether a statement may be admissible on non-hearsay grounds as a verbal act. A verbal act is a statement offered to establish something of independent legal significance or effect, rather than the truth of the matter asserted in the statement. Such statements are admissible as non-hearsay. The issue arose in a murder for hire casewhere the shooting of a sixteen-year-old while she showered at her grandmother’s house remained unsolved for several years. Eventually, an individual reported that she heard the victim's nephew, defendant Childs, talking with defendant Sims about the murder. With this new lead, investigators identified a fingerprint match with defendant Childs from prints found at the murder scene. Charged with conspiring to commit murder for hire, Defendants Childs and Sims' trials were severed
At the trial of defendant Sims, defendant Childs'former girlfriend (Love):
“testified that while at a pool party during the summer of 1996, her cousin, Carolyn Ross, asked her if she knew anyone who could kill someone for her. Both Childs and Sims were present. [Girlfriend] Love testified that she initially thought Ross was joking. Later, Childs asked her if Ross was serious about having a murder committed because he might know someone who would do it. A few weeks later, Ross again approached Love and Childs. Ross was very upset over her husband’s affair with Chrissy Satterfield. Ross asked both if they would kill her husband and Chrissy Satterfield in exchange for money. A price was agreed upon. Later, Love and Childs visited the restaurant where Satterfield worked so that Childs could see what Satterfield looked like.”Childs, __ F.3d at __. Defendant Sims objected that the statement recounting what Ross asked was inadmissible hearsay. The trial court admitted the testimony as co-conspirator hearsay under FRE 801(d)(2)(E). The defendants were convicted by separate juries and both were sentenced to life in prison.
On appeal, the Sixth Circuit affirmed the admission of witness Love’s testimony that Ross asked for someone to assist with the murder plan. The circuit did not reach the defense argument that the statement was inadmissible. There was no conspiracy at the time the statement was made. But the statement was admissible as a verbal act, which is not hearsay. Childs, __ F.3d at __ (citing United States v. Gordon, 1991 WL 108723, at *3 (6th Cir. June 20, 1991) (“A witness who testifies at trial that [someone solicited them to commit a crime] is testifying to a verbal act of which the witness has direct knowledge: the extension of the invitation.”; solicitation was not a “statement” under the hearsay rule because it was not an “assertion.”)). As the circuit explained:
“Jackie Love’s testimony that Carolyn Ross asked her if she knew anyone who could kill someone for her is admissible evidence of a verbal act. It is the fact that the declaration was made, and not the truth of the declaration, which is relevant.”
Alternatively, any error in admitting the challenged testimony was harmless, based on other evidence establishing guilt.
As Childs shows, verbal acts may be offered to establish something of independent legal significance or effect. The statements are non-hearsay when used for this purpose. Often, the verbal acts doctrine is used to show legally operative verbal conduct or legal consequences independent of their assertive quality.
Comments
Post new comment