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State v. Davey

Supreme Court of Kansas

July 21, 2017

State of Kansas, Appellee,
Denise Davey, Appellant.


         1. Generally, evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible, albeit that hearsay rule is subject to certain statutorily created exceptions.

         2. K.S.A. 2016 Supp. 60-460(i)(2) creates an exception to the hearsay rule for an out- of-court statement that would otherwise be admissible if made by the declarant at the hearing, if the hearsay is offered against a party and "the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination."

         3. The coconspirator exception to the hearsay rule, based upon K.S.A. 2016 Supp. 60-460(i)(2), does not require that the coconspirator's statement be offered to the court by a third person who is not a participant in the conspiracy. The third person requirement for the application of the coconspirator exception to the hearsay rule, as declared in State v. Bird, 238 Kan. 160, 176, 708 P.2d 946 (1985), and its progeny, is hereby disapproved and overruled.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed January 8, 2016. Appeal from Johnson District Court; Brenda M. Cameron, judge.

         Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Shawn E. Minihan, assistant district attorney, argued the cause, and Daniel G. Obermeier, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.


          JOHNSON, J.

         Denise Davey (Davey) seeks review of the Court of Appeals decision that affirmed her convictions and resulting sentence for attempted first-degree murder and conspiracy to commit first-degree murder of her husband, Dennis Davey (Dennis). The State prosecuted Davey, in part, on the theory that she conspired with her daughter, her daughter's boyfriend, and the boyfriend's sister to kill Dennis. At trial, the State introduced several hearsay statements that were made among the conspirators. The issue for our review is whether the coconspirator exception to the hearsay rule, as gleaned from the vicarious liability exception set forth in K.S.A. 2016 Supp. 60-460(i)(2), can apply when the hearsay is offered at trial by a coconspirator, rather than a third party. We find the exception applicable in such a case and affirm the Court of Appeals and the trial court.

         Factual and Procedural Overview

         Davey's convictions emanated from her attempts to kill her husband, Dennis, or to hire others to kill him, in order to get his money and life insurance proceeds. The State's evidence included testimony that Davey put mercury from a thermometer onto Dennis' sandwich, believing it would act as an untraceable poison. Later, in the early morning hours of June 26, 2013, three people brutally attacked Dennis in his bedroom as he slept, intending to kill him by hitting him in the head with a baseball bat and suffocating him with a garbage bag taped over his head. Those assailants were Davey's daughter, Nicole Carter (Nicole); Nicole's boyfriend, Adam Hersh (Adam); and Adam's sister, Whitney Hersh (Whitney). The assailants were caught and arrested while fleeing Dennis' house after he fought off their attack.

         The Court of Appeals opinion sets forth a detailed factual statement, describing each participant's version of events leading up to and surrounding the attack, all of which implicate Davey in the murderous scheme. State v. Davey, No. 111, 774, 2016 WL 97847 (Kan. App. 2016) (unpublished opinion). Nicole's and Adam's respective stories were presented to the jury by reading their preliminary hearing testimony, because they invoked their Fifth Amendment right against self-incrimination at trial and refused to testify. Whitney and Dennis testified at trial.

         We discern that a detailed factual recitation is unnecessary to resolve the issue presented to us. It is sufficient to know that, on more than one occasion, Davey gave money to Adam to hire someone else to kill Dennis. When the hire-a-killer plan failed because Adam either spent the money on methamphetamine or hired a nonperformer, Davey ultimately conspired with and paid money to Nicole, Adam, and Whitney to do the killing. The ...

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