BY THE COURT
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.
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."
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.
of the judgment of the Court of Appeals in an unpublished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.
of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed.
J. Eddinger, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
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.
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.
and Procedural Overview
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
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.
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.