v.
AMOSA ROPATI, Defendant.
High Court of
Trial Division
CR No. 54-99
[1] Statement, made by defendant, that his uncle was
taking a large risk in shipping the drugs through the mail was not offered to
prove the truth of the matter asserted, but instead to show defendant’s
knowledge that he was picking up drugs.
Therefore, it was not hearsay and it could be used against him at trial.
[2]
Although statement, when viewed under a strictly literal truth of the matter
asserted standard, did not constitute hearsay, its proffered use to implicate
codefendant rendered it hearsay, and was properly considered such.
[3] Neither a casual admission nor idle conversation
constitute a declaration made in furtherance of a criminal conspiracy and
therefore are not immune from the hearsay rule under such exception.
[4]
When right to confrontation problems may be caused by hearsay statements of a
codefendant to be used in joint trial, a court must consider remedial action,
including severance.
[5]
Separate trials are essential when incriminating out-of-court statements of a
codefendant, admissible against the declarant but not against codefendant,
would be presented in evidence.
Before KRUSE, Chief Justice, LOGOAI, Associate
Justice, SAGAPOLUTELE, Associate Justice.
Counsel: For
Plaintiff, John W. Cassell, Assistant Attorney General
For Defendant, Katopau T. Ainu`u
ORDER DENYING PLAINTIFF’S MOTION FOR JOINDER
On
[1] We first examine whether Tupua’s declaration will be
admissible at trial for use against him or codefendant Ropati. Tupua’s statement does not constitute hearsay
when used against him because the declaration is not being offered to prove the
truth of the matter it asserts, namely, that his uncle was in fact taking a large
risk in shipping the drugs through the mail.
Rather, the remark is being offered to prove Tupua’s knowledge that he
was picking up drugs. Tupua’s
declaration being offered to prove his state of mind, it is not covered by
T.C.R.Ev. 801, and is admissible against Tupua.
[2] ASG argues that Tupua’s statement is not hearsay with
respect to Ropati. Under a strictly literal truth of the matter asserted
standard, it is not, because ASG is not using the statement to prove that
Ropati was in fact “taking a big chance bringing methamphetamine to the
Territory by post.” Rather, ASG seeks to
introduce this statement against Ropati in order to prove identity, namely,
that Ropati was the intended recipient of the package. Notwithstanding the literal meaning of the
remark, its use to implicate Ropati constitutes hearsay because the remark
effectively asserts that Ropati was the intended recipient of the package, and
it is being offered by ASG to prove the truth of this matter. Thus, the declaration, as hearsay, cannot be
used against Ropati unless it comes under an exception to the hearsay
rule. T.C.R.Ev. 802.
[3] Plaintiff ASG appears to assert that Tupua’s
declaration can be admitted against Ropati under the co-conspirator exception
to the hearsay rule. T.C.R.Ev.
801(d)(2)(E). This argument fails
because the declaration was not offered “in furtherance of the
conspiracy.” At the time Tupua allegedly
made the declaration, he was not seeking assistance from witness Lilio, nor was
he attempting to involve Lilio in the conspiracy. Rather, his words were a casual admission and
idle conversation, neither of which can be used against a co-conspirator. See
Judicial economy speaks for joinder. The defendants have been [3ASR3d106]arraigned on similar charges, and are allegedly part of
the same conspiracy to import and sell illegal drugs. The prosecution also presents a good case for
joinder. The trials of both defendants
require the same witnesses and exhibits, and ASG may be calling an off-island
witness from
[4-5] To facilitate joinder, ASG proposes that the jury be
instructed to limit consideration of Tupua’s remarks to the case against
Tupua. Granted, the integrity of the
judicial process depends on “the almost invariable assumption of the law that
jurors follow their instructions,” Richardson v. Marsh, 481 U.S. 200,
206 (1987), nevertheless, when right to confrontation problems may be caused by
hearsay statements of a codefendant to be used in joint trial, a court must
consider remedial action, including severance.
In weighing the matter before us, we conclude that
Ropati’s rights should supersede considerations of economy. ASG’s needs may be
accommodated to some extent. To
alleviate the burden to ASG presented by separate trials, the court, for
example, is open to scheduling the two trials during the same week, but separately,
to minimize the expense and logistical difficulties involved with off-island
witnesses. This option can be further
explored at the forthcoming pretrial conference.
Order
For the foregoing reasons, plaintiff’s joinder motion
is hereby denied.
It is so Ordered.
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