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Smith v. State

A co-conspirator's taped telephone conversations that took place within 1 hours of the crime were admissible, even though the statements related to past facts, since the state presented independent evidence of defendant's participation in the conspiracy, the co-conspirator had personal knowledge of the participants' roles in the crime and the statements were against his penal interest.

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After obtaining the driver’s consent to search his vehicle, an officer found 40 grams of cocaine under the passenger seat on which defendant had been sitting. The driver testified that when the officer had activated his blue lights, the driver pulled the cocaine out of his pocket and tried to get the defendant to take it, and that when the defendant refused, the driver placed the drugs in the console between the seats. The question on appeal is whether this evidence established a prima facie case of defendant’s participation in a conspiracy to traffic in cocaine so as to allow into evidence hearsay statements of a co-conspirator. Since the defendant was the only one who had the opportunity to move the cocaine from the console to under his seat, we hold that evidence showed defendant’s participation in the conspiracy and thus the court properly admitted the statements.

Construed in favor of the verdict, the evidence showed that an officer, informed that a vehicle was possibly carrying drugs, stopped that vehicle for speeding. The officer and the driver spoke for a few minutes in the officer’s patrol car, and the driver consented to a search of his vehicle. The officer then removed the passenger, Jessie B. Smith, from the front passenger seat and found 40 grams of cocaine under that seat. Claiming that the substance first had to be tested before any arrests were made, the officer allowed Smith and the driver to leave in the vehicle. They drove to the residence of Smith’s nephew.

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