I have a defendant charged with capt. murder for killing three police officers and wounding two l.e. He and his best friend staged an ambush and lured the officers with a bogus 911 call and then hid out in the brush. when the officers arrived, the first three were killed with numerous different rounds from different weapons. One of the actors killed himself in the ambush and the other escaped before the firefight ended.

Several months (5-6 months) before the stand off the actor who killed himself made an out of court statement to a teacher at his vocational school that his best friend(our defendant) and him had a plan to commit suicide by cop. They were going to make a 911 call and then hideout in a ditch at his house and kill some officers and then one of the officers would shoot them. The teacher seemed to think she talked him out of it( in the short term) so she never came forward.

I have done research on hearsay; statement against intrest and then existing state of mind. I am nit sure if this would even pass as a statement by a co-conspirator because it was not in furtherance or anywhere near the time of the shooting. Does anyone have any ideas.

This sounds like Vodochodsky to me. I think this is the kind of statement directly contemplated by Crawford- and you don't have a way of claiming forfeiture by wrongdoing. I don't think you can use it.

Brandon how did this case come out for you ?Anyone have further thoughts on this?
I have a similar situation in a capital; after robbery/murder, co-defendant tells several people how he and defendant go to rob victim and defendant killed him. Would at least like to get in the statement that they went over there to rob the guy.

Crawford makes my head spin, testimonial, non-testimonial, trustworthines, well-established hearsay exceptions, grrrrrrrrrrrr !

[This message was edited by Stacey L. Brownlee on 06-14-07 at .]

Well, as you know Ms. Longview legal scholar, it is that testimonial thing that is so subject to interpretation. How can almost any statement not be testimonial when it arises from an investigation. Grrrrrrrrrrrrrrrrrrrr!

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Originally posted by Stacey L. Brownlee:
I have a similar situation in a capital; after robbery/murder, co-defendant tells several people how he and defendant go to rob victim and defendant killed him.

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Who are these other people? That may make a big difference. I had a case a few years ago which was tried before Crawford, but appealed after Crawford came out. I had a number of out-of-court admissions by a co-defendant who did not testify. The statements, though, were made to fellow gang members and were overheard by non-accomplice acquaintances. It's pretty clear that statements under those circumstances are not made in contemplation of litigation, since my defendant never expected them to get back to the police. The appeal is unpublished, but you can find it here.

Thanks for the case Wes. How nice of the court to just throw a crawford note into it, even if they didn't publish.

I think I'll go with the nontestmonial argument, since this was a thug to thug conversation.

Here's a published capital case that might be helpful.

Smith v. State, 187 S.W.3d 186, 192-94 (Tex.App. - Fort Worth 2006 pet. ref'd) (out-of-court statements of two co-defendants -- to a friend -- about the crime the co-defendants and the appellant committed were properly admitted).