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Supreme Court of Georgia Reminds Us of the Confines of the Co-Conspirator Exemption to the Rule Against Hearsay While Overturning Murder Conviction

Earlier this month, the Supreme Court of Georgia reversed a defendant’s convictions for felony murder and two firearm charges because the trial court erred by admitting hearsay statements from an accomplice, failed to give a jury instruction on the accomplice-corroboration requirement, and erred by admitting evidence of the defendant’s involvement in two prior shooting. 

This case highlights the importance of defense counsel’s knowledge of the rules of evidence, and how it could impact a criminal trial.

Summary of the Case

In February 2008, Gwendolyn Cole was murdered in cold blood after two assailants shot through her front door. An investigation ensued, but no arrests were immediately made. During the investigation, a witness reported that Benjamin Finney confessed that he and another individual, Marlon, were the ones who “shot up” the house of the victim. Still, no arrests were made at that time.

While the investigation was ongoing, but before any arrests were made in the murder case, Marlon plead guilty in federal court to possession of a firearm by a convicted felon. Similarly, in January 2009, Finney plead guilty to separate charges relating to the possession of cocaine and three firearms. Finney was sentenced to 70 months in federal prison.  

In January 2013, a Bibb County grand jury indicted both Marlon and Finney for malice murder, felony murder, and firearms related charges. Finney was tried on the aforementioned charges in 2016. During the 2016 trial, the State introduced two witnesses, who testified that Marlon shared details with them about the murder while serving his federal sentence for firearms charges in West Virginia. 

According to the witnesses, Marlon stated that he and “his co-defendant” had gone to the victim’s house and that both of them subsequently began shooting, ultimately killing her. Marlon apparently did not identify his “co-defendant”, but instead told the witnesses his co-defendant was serving a federal sentence in Forrest City, Arkansas. Coincidently, Finney was at that time serving his 70-month sentence in Forrest City. Marlon did not testify at Finney’s trial. 

Finney objected to the testimony of these two witnesses, but the trial court overruled the objection, ruling that Marlon’s statements were admissible under the hearsay exemption for statements made by a co-conspirator to further the conspiracy.

A Bibb County jury ultimately found Finney guilty of felony murder and firearms related charges. The trial court sentenced Finney to serve life in prison for the felony murder charge, and five consecutive years for the firearm count. 

Finney appealed and the case ultimately reached the Supreme Court of Georgia, who reversed Finney’s convictions based in part of the trial court’s erroneous admission of statements made by the Defendant’s co-conspirator, Marlon, to the two state witnesses (discussed above).

Rule Against Hearsay and the Co-Conspirator Exemption 

Anyone who has been involved with the legal system has heard the term “hearsay.” Generally, hearsay is an out-of-court statement offered in trial to prove the truth of the matter asserted. The Georgia Rules of Evidence expressly prohibit the introduction of hearsay evidence unless either an exemption or exception applies.  

One such exemption is the “co-conspirator” exemption. Under the Georgia Rules of Evidence, a court will allow an out-of-court statement if it was made by a defendant’s co-conspirator “during and in furtherance of the conspiracy.” O.C.G.A. 24-8-801 (d) (2) (E). Courts have defined “during […] the conspiracy” to include the concealment phase. In other words, even where a conspiracy is technically complete, statements made during efforts to hide the conspiracy will still fall within the exemption. 

The Supreme Court of Georgia, however, made clear in Finney that a statement made “during” a conspiracy (including the concealment phase), without more, is not enough. Instead, the statement must be: 1) during the conspiracy, and 2) in furtherance of the conspiracy to be admissible. 

According to the Supreme Court of Georgia, Marlon’s statements may have been “during” the conspiracy, but there was no indication that the statements were made to advance the interests of the conspiracy when made. In other words, “a retrospective statement regarding matters that have already occurred, not intended to foster involvement in the conspiracy, is not a statement in furtherance of the conspiracy” and is therefore excluded by the rule against hearsay. 


Defense Counsel must be weary of the Government’s attempts to “sneak” in harmful evidence under the guise of the co-conspirator exemption. As the Supreme Court of Georgia made clear, the Georgia Rules of Evidence require a co-conspirator’s statements to be made both during and in furtherance of the conspiracy to be admissible. 

As indicated in Finney, defense counsel’s knowledge of the Rules of Evidence can make or break your case should it go to trial — it can quite literally mean the difference between spending the rest of your life in prison or walking out of the courthouse as a free individual.

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