Opposition Brief — Tsolainos v. Louisiana

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IN THE

Supreme Court of the United States

ACEI oR CMMI CAITR

PANOS T. TSOLAINOS,

Petitioner,

y.

STATE OF LOUISIANA,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

LOuIsIANA COURT OF APPEAL

FOR THE First Circuit

BRIEF IN OPPOSITION

HONORABLE WALTER P. REED Dorotuy A. PENDERGAST*

22" JDC District Attorney Special Appeals Counsel

701 N. Columbia Street se dC

Covington, LA 70433 District Attomey’s Office

(985) 809-8384 4524 Wilson Drive

Metairie, LA 70003

(504) 885-3503

(504) 258-7334

* Counsel of Record

Attorneys for Respondent

192)? cel

COUNSEL PRESS

(800) 274-3321 © (800) 359-6859

TABLE OF CONTENTS

Table of Cited Authorities .....................

eT OO oi i wea keeles ak suna eds

Statement OF PYOCEIIMG . i... cick n cc ec ucsccuss

rae

Reasons for Denying the Petition...............

A.

This Court lacks jurisdiction to determine

whether the confrontation clause applies to

“testimonial” evidence submitted at pre-trial

hearings which form the basis for introducing

alleged “inadmissible” evidence at trial. ...

The tape-recorded conversation of Mr.

Schmolke and Mr. Branigan was statements

in furtherance of a conspiracy and under

Crawford not subject to the Confrontation

Se I accu vca wee tape dwees

This Court does not need to consider whether

the Confrontation Clause imposes an absolute

bar to a police informant’s testimony absent

a prior opportunity for cross examination

because the testimony at issue is part of a

taped statement in furtherance of a conspiracy

and not isolated for consideration. ........

11

14

il

Contents

Page

D. This Court should not extend the

Confrontation Clause to statements in

furtherance of a conspiracy, now admissible

under C.E. Art. 801(D)(3)(b), to exclude them

from trial if they cannot pass a reliability test

and be subject to cross examination. ...... 17

Conmcimsiem . ooo ks cade bee 20

Appendix A — Transcript Of June 30, 1998 Taped

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iii

TABLE OF CITED AUTHORITIES

Page

Cases:

Bourjaily v. United States, 483 U.S. 171, 107S. Ct.

2775 gL Ce eran. 14, 18

Gerald Branigan vy. James D. Miller, No. 02-3325,

Wer E EA. 3

Crawford v. Washington, 124 S. Ct. 1354 (2004) ... .Passim

Glasser v. United States, 315 U.S. 60 (1942) ..... 18

Illinois vy. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76

L. Ed. 2d 527 tan: ee ee 9-10

Liner v. Jafco, 375 U.S. 301 (1964) 0.000 9

Ohio vy. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65

L. Ed. 2d 597 RAPE 5605 bv eeien oénenc 9, 14,19

State v. Bay, 529 So. 2d 845 (La. 1988) .......... )

State v. Branigan, 2000-KH-1589 (La. App. 1 Cir.

2001), writ denied, 812 So. 2d 645 (La. 2002)

State v. Lobato, 603 So. 2d 739 (La. 4 17

State v. Martin, 550 So. 2d 568 (La. | 9

iv

Cited Authorities

Page

State v. Myers, 545 So. 2d 981 (La. 1989) ........ 10

State v. Sheppard, 371 So. 2d 1135 (La. 1979) .... 10

State v. Tsolainos, 2000-1664 (La. App. 1 Cir.

12/31/03), rehearing denied ................. 2

State v. Tsolainos, 2004-0616 (La. 7/2/04), 812 So.

BRE 5 646 ek A 3

White v. Illinoise, 502 U.S. 346, 112 S. Ct. 763 (1992)

PO ee ee ree Lr ee ee rere 14

United States v. Nixon, 418 U.S. 683 ............ 18

United States Constitution:

ee ee re ee re 14, 18

Statutes:

Pee EE a7 es al bu ha kee RK ee 2

Articles: |

CE. Art. 104(A) ....cccccccccccccccccseseues 10 |

|

i ee. ER ss bo ke esa ee ahaa aes 13

C.E. Art. 801(d)(2)(E) .. 0... ccc cccceeeceeeeees 18 |

CE. Ast. MOO)... .... 5. os ences 13, 17

l

STATEMENT OF THE CASE

Petitioner Tsolainos’s conviction by a jury for second

degree murder of his exwife was Supported by ample

evidence, both direct and circumstantial, that he intended to

“kill or to inflict great bodily harm” on Deborah Tsolainos.

The facts indicated that Tsolainos got into the driver’s seat

of his girl friend’s car parked in the victim’s driveway after

packing it with their belongings. Connie, the girl friend, was

in the process of getting in the passenger side when Tsolainos

gunned the motor and caused the car to jerk backwards.

It stopped, then the motor was gunned again, the tires

Squealed, and the car barreled forward throwing Connie out

of the vehicle, brushing Clarissa his adult daughter,

and throwing her and her little sister Stephanie backwards.

The car was steered deliberately into Deborah, hitting her in

the middle and throwing her onto the hood. The car moved

50 to 60 feet, then up a tree and landed on its side with

Deborah Tsolainos lying underneath the Car.

Petitioner claimed it was an accident but the facts at trial

did not support either of the two different stories that he told

to the police.' In fact, prior to this incident, he had been

arrested for conspiracy to commit murder. After his initial

arrest for conspiracy, he gave a statement to the police

admitting that he and Branigan had several conversations

during which they agreed to a price and method for the murder

of Deborah, his exwife. This Statement alone established the

existence of a conspiracy. It was introduced at trial. Also

introduced at trial was the taped statement between Schmolke

and Branigan, at issue in this Writ, when Branigan developed

the specifics for murdering Deborah.

1. At first Tsolainos said that it was the emergency brake. Then

he told the police and presented at trial the “control misapplication”

theory.

2

This taped statement was made by co-conspirators during

the course and in furtherance of the conspiracy. As a hearsay

exception, it was properly admitted into evidence. However,

the other contested statement, made by Melissa Tsolainos,

defendant’s daughter, was not introduced at trial. Melissa’s

statement was used at a pretrial hearing where the state proved

its prima facie case of conspiracy. The use of hearsay has

always been allowed at pretrial hearings. The pretrial use of

this statement is not ripe for consideration by this court

because it was not introduced at trial, nor was its substance

made known to the jury. The pretrial hearing is not an issue

properly presented to this court.

STATEMENT OF PROCEDURE

Petitioner, Panos Tsolainos, was charged by grand jury

indictment on August 13, 1998, with the first degree murder

of his ex-wife, Deborah Tsolainos, a violation of La. R.S.

14:30. On April 26, 1999, the charge was amended to second

degree murder, a violation of La. R.S. 14:30.1. At the sanity

hearing on February 9, 1999, the court determined that

defendant was competent to stand trial based on the reports

of doctors Salcedo and Thompson. On October 11-14, 1999,

_ a twelve person jury was selected. It tried this case on October

15 through 23, 1999 and found petitioner guilty as charged.

On April 26, 2000, after the court denied petitioner’s motion

for a new trial with reasons, it sentenced petitioner to life in

prison at hard labor without benefit of parole, probation or

suspension of sentence.

Petitioner appealed his conviction and sentence to the

First Circuit Court of Appeal which affirmed both by written

opinion, State v. Tsolainos, 2000-1664 (La. App. 1 Cir. 12/

31/03), (unpublished opinion), rehearing denied. The

3

Louisiana Supreme Court denied the writ of certiorari, State

v. Tsolainos, 2004-0616 (La. 7/2/04), 812 Se.2d 645.

The First Circuit considered whether or not it was trial

error to allow the state to introduce evidence of other crimes

or bad acts. Specifically, the bad acts evidence consisted of

the conspiracy evidence of defendant’s participation in an

alleged conspiracy to murder his ex wife. The First Circuit

concluded that there was no trial court error because the state

had made a prima facie case of conspiracy. The court also

found that allowing the recorded conversation between

Branigan and Schmolke to be introduced into evidence and

played for the jury was not error. Thus, the trial court did not

abuse its discretion in denying defendant’s motion for

mistrial. The court further concluded that the contested

statement was a co-conspirator’s statement and a firmly

rooted hearsay exception that did not violate petitioner’s right

to confrontation.

Moreover, Mr. Branigan was convicted of conspiracy to

commit first degree murder in a separate trial on January 27,

2000. His conviction and sentence were affirmed on direct

appeal by the Louisiana First Circuit. State v. Branigan, 2000-

KH-1589 (La. App. 1 Cir. 2001) (unpublished opinion); writ

denied, 812 So. 2d 645 (La. 2002). On writ of federal habeas,

the U.S. District Court, Eastern District of Louisiana, agreed

with the state court that there was sufficient evidence to

support the conviction for conspiracy to commit murder.

See Gerald Branigan v. James D. Miller, No. 02-3325,

USDC, E.D. of LA.

4

STATEMENT OF FACTS

In 1996, petitioner Panos Tsolainos and Deborah

Tsolainos separated and began a custody battle for their two

minor children and a fight over the community property. They

had been married since 1983. Defendant was a wealthy prep

school man with an MBA from Wharton College; Deborah

was a welder with two children from a previous marriage,

Melissa and Clarissa. Panos adopted both of Deborah’s two

children, and then they had two of their own: Stephen and

Stephanie.

During the marriage, while recovering from a back injury,

Deborah became addicted to drugs and then heroin.

Her addiction to heroin contributed to the break up of the

marriage. After the divorce, Deborah went to St. Louis,

Missouri, to live with her mother where she entered a

recovery program for her heroin addiction.” Petitioner was

awarded custody of the minor children, Stephanie and

Stephen, and occupancy of the family home. Melissa

remained in Louisiana with petitioner. Clarissa, who had

become pregnant at the time of the divorce, followed her

mother to St. Louis where she had her baby. In the meantime,

Stephanie and Stephen were in the custody of their father

until Deborah was able to successfully complete her drug

rehabilitation.

In 1998, Deborah, drug free and sober, petitioned the

court for visitation and joint custody as well as for community

property.’ During this time petitioner began using crack

cocaine, a fact that was not allowed in evidence after a hearing

2. R. 2159

3. R. 2162

ae eT,

eos *

5

on the issue on October 19, 1999. Petitioner became angry

at Deborah’s efforts to gain custody of the children and house,

and started looking for a hit-man. To accomplish this goal,

defendant’s adopted daughter, Melissa Tsolainos, introduced

him to Gerald Branigan. After Panos discussed killing the

victim with Branigan, Branigan contacted Charles “Tinker”

Schmolke to assist him in the murder of Deborah Tsolainos.

At the end of June 1998, Charles Schmolke, known as

“Tinker,” contacted Detective John Scallon regarding a

potential conspiracy to kill Deborah Tsolainos by her ex-

husband Panos. Tinker agreed to wear a wire and set up a

meeting for June 30, 1998, with Gerald Branigan to record

the conspiracy to murder Deborah. Tinker met with Branigan

and his girl friend, Melody Johnson, and learned that Panos

was trying to hire Branigan to kill his ex-wife, Deborah, for

five thousand dollars ($5,000.00). Branigan had been

introduced to petitioner by Tsolainos’s daughter, Melissa

Tsolainos. Branigan wished to recruit Tinker to assist in the

murder and agreed to give him half of the payment, that is

twenty-five hundred dollars ($2,500.00). At that first meeting,

it was decided that one of two methods would be used to kill

Deborah: (1) an armed robbery where Deborah would be shot

between the eyes; or (2) set up an overdose situation with

heroin as Deborah was a former addict. Branigan was to get

a picture of the victim from Panos for Tinker. This meeting

was recorded with a Kell monitor on Tinker while detectives

listened. See Appendix A.

The second meeting with Branigan occurred during the

day on July 1, 1998, when Branigan told Tinker that he had

decided that the overdose was the best method. The third

meeting was later on that same date. The recording device

malfunctioned at both the second and third meetings and the

ie

6

tapes were blank. The substance of these conversations were

not allowed into evidence through Det. Scallon’s testimony

after a pretrial hearing.

Within a few days, Branigan and Melody Johnson were

arrested. Both of them gave statements to the police. Melissa

and Panos Tsolainos were also arrested for conspiracy to

commit murder. Petitioner gave a statement after his arrest

where he admitted his contact with Branigan. After Deborah

Tsolainos was notified of the threats and of the arrests, she

returned to Louisiana and obtained custody of the children

and the house. Petitioner was released on bail on July 17,

1998, after admitting to the conspiracy.

On July 19, 1998, Deborah was cleaning the family home

that had been totally trashed by defendant because she had

been awarded custody of it by the court. On that Sunday

morning, she was helped with cleaning the community home

by her daughter Clarissa Tsolainos and Clarissa’s friend

George DeForest, Aunt Carlotta and her boyfriend Mark,

and her two minor children Stephanie and Stephen. Clarissa’s

baby, Christopher, was also at the house.

During the afternoon, defendant and his girlfriend, |

Connie DeVille, arrived from Mississippi to pick up some |

of Connie’s personal goods that had been left in the house.

Defendant initially remained across the street while Connie )

went to get her belongings because there was a restraining |

order forbidding Panos from contacting Deborah or going |

on the property. The children, Stephanie and Steven, wanted |

to see their dad so Deborah took them outside and allowed |

them to go across the street to see him. The atmosphere ,

4. R. 2168 |

J

seemed amiable. Petitioner was allowed to enter the property

to help Connie load her stuff into her Skylark, then the two

left. Deborah and the kids went back into the house to

continue cleaning.

Sometime in the early evening, petitioner and Connie

returned to the house for the rest of their personal belongings

while the family was eating a McDonald’s supper. Clarissa

saw petitioner outside of the picture window. When Deborah

noticed petitioner she said “Oh f__” and went outside.

Clarissa went back to packing and cleaning. While Clarissa

and George were inside cleaning the computer room they

heard Deborah yelling and tires squealing outside. As they

went outside they saw Panos in the car revving up the engine,

spinning the wheels while in neutral. Deborah screamed at

Panos and pounded on the front of his vehicle. Connie was

partly in the car and Panos was revving up the engine.

Deborah was yelling “Get off the property” and “You tried

to kill me.” Clarissa tried to get her mother inside:

In the meantime, Connie was also screaming at petitioner

who began backing up the car in a circular motion. Connie

fell out of the car passenger door then the car barreled forward

again grazing Connie, hitting Clarissa and sending her and

Stephanie backwards. The engine was still very loud and the

tires were squealing. The car hit Deborah in the middle, threw

her in the air.° She landed on the hood of the car as the car

ran up the tree and landed on its side on top of Deborah

crushing her.’

5. R. 2172-75

6. R. 2180

7. R. 2109

8

George had heard the ruckus and run outside with a

baseball bat, but when he saw the victim pinned underneath

the car and the kids crying he went to call 911 but Clarissa

made the call while George went back outside. He attempted

to help Deborah by getting a jack from his car to raise the

vehicle off the victim. In the meantime, petitioner climbed

out of the car but refused to help when asked by George and

he went inside. Petitioner passed Clarissa while she was on

the phone and told her that the emergency brake was the

problem.* He also kept saying “That f-ing bitch got what

she deserved, she shouldn’t have been running her f__ing

mouth.” Petitioner said this calmly but with a lot of anger.’

The police and ambulance arrived and began extricating the

victim. Deborah died within three to five minutes after the

accident.

REASONS FOR DENYING THE PETITION

A. This Court lacks jurisdiction to determine whether

the confrontation clause applies to “testimonial”

evidence submitted at pre-trial hearings which form

the basis for introducing alleged “inadmissible”

evidence at trial.

Respondent urges this Court to deny the instant writ of

certiorari based upon this issue because the statement of

Melissa Tsolainos was never admitted at tnal. The issues on

appeal to the State First Circuit Court of Appeal were trial

errors which did not include the admission of Melissa’s

statement at the pre-trial hearing. Melissa’s statement at the

pre-trial hearing was not assigned as error nor was it briefed

8. R. 2185

9. R. 2111

9

as required under State law. In Louisiana, issues that are not

assigned as error and/or not briefed are considered abandoned

on appeal. State v. Bay, 529 So. 2d 845 (La. 1988); State v.

Martin, 550 So. 2d 568 (La. 1989). Petitioner mistakenly

refers to the First Circuit Court of Appeal opinion as making

reference to Melissa’s statement in its final conclusion on

the coconspirator’s declaration. The First Circuit said, “From

our review of this record, we find that the contested statement

in the instant case was a coconspirator’s statement with

referential ‘indicia of reliability.” The “contested statement”

clearly refers to the taped statement between Branigan and

Tinker that was at issue in the assignment of error. The First

Circuit at this point was merely acknowledging and verifying

the criteria under Ohio v. Roberts, 448 U.S. 56, 100 S. Ct.

2531, 65 L. Ed .2d 597 (1980), prior to that case’s reversal.

Under Article 3 of the United States Constitution, the

exercise of federal judicial power depends on the existence

of a case or controversy. Liner v. Jafco, 375 U.S. 301 (1964).

As set forth above, the issue of Melissa Tsolainos statement

to the police was not in controversy at the state court level

and therefore does not form a case or controversy before this

Court. A ruling by this Court would clearly be an advisory

opinion or an abstract proposition of law based on a matter

that has not been fully litigated in the state court. For these

foregoing reasons, respondent respectfully suggests that this

Court should not grant this writ based on the first issue.

Nonetheless, this Court should deny this issue on the

merits. Melissa’s statement to the police was used at the pre-

trial hearing to establish the purposes of the pre-trial hearing,

whether there was a conspiracy. Hearsay evidence, like

Melissa’s statement, may also be used to establish probable

cause. //linois v. Gates, 462 U.S. 213, 103 S. Ct. 2317.

10

76 L. Ed. 2d 527 (1983). Hearsay is allowed as a res gestae

statement, that is a statement made as a spontaneous utterance

or declaration within a short period of time before or after

the commission of the crime. Hearsay statements are also

admitted in pre-trial hearings to show a state of mind

regarding the declarant to determine the admissibility of other

statements or evidence in a motion to suppress. State v.

Sheppard, 371 So. 2d 1135 (La. 1979). Moreover, the

admission of Melissa’s statement at the pre-trial hearing was

used to determine the prima facie case as allowed under the

C.E. Art. 104(A) and State v. Myers, 545 So. 2d 981

(La. 1989). Melissa’s statement was one of several pieces of

evidence used at the hearing to establish a prima facie case

for a conspiracy. It was not introduced at trial and therefore

did not taint the jury or violate defendant’s right to

confrontation.

In his testimony at trial, Detective Bobby Juge said that

he took the taped statement from Panos on July 7, 1998 and

also a taped statement from Melissa.'® Nothing further was

said about the substance of Melissa’s taped statement.''

The jury heard the taped statement of defendant made after

his arrest on the conspiracy charge. The jury had no further

information regarding Melissa’s statement to Juge. Therefore,

there is nothing for this Court to review. However, if this

Court would find that Detective Juge’s reference to Melissa’s

statement was error, it was harmless error in view of the

implications of Panos’ statement played for the jury. In his

statement, Panos Tsolainos, Melissa’s father, implicated her

10. Det. Juge also testified that he interviewed Gerald Branigan

and Melody Johnson prior to issuing warrants for Panos and Melissa.

R. 2377

11. R. 2381

RS ae RS

1]

as having introduced him to Branigan for the specific purpose

of murdering his ex-wife. Clearly, even if the Detective’s

neutral reference to Melissa’s statement was some sort of

error, it was harmless error in light of the evidence at trial.

Petitioner presents no viable issue for the Court to review in

this Question.

B. The tape-recorded conversation of Mr. Schmolke and

Mr. Branigan was statements in furtherance of a

conspiracy and under Crawford not subject to the

Confrontation Clause scrutiny.

Petitioner asks this Court to grant this writ and determine

that any statements made in furtherance of a conspiracy that

included a police informant, or someone who had contacted

the police regarding the conspiracy, should fall within

Crawford's minimal definition of “testimonial evidence.”

If this Couri extends the definition of Crawford to include

what defendant terms as ex parte testimony of a police

informant who gets paid for results, it will eliminate many

co-conspirators’ statements as hearsay exceptions and

radically change the jurisprudence in this area.

Crawford v. Washington, 124 S. Ct. 1354 (2004),

specifically defined the core class of “testimonial”

Statements. It limited the applicability of the Confrontation

Clause to statements constituting “testimony.” The definition

included both “in court” testimony and its “functional

equivalent,” such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross examine,

and “similar pre-trial statements that the declarants would

reasonably expect to be used prosecutorially.” Crawford v.

Washington, supra. Statements taken by police officers in

the course of interrogations are also testimonial under even

12

a narrow standard according to Crawford. For these

aforementioned types of statements to be admissible, the

Crawford Court made it clear that the declarant must be

unavailable to testify and the defendant must have had a prior

opportunity to cross examine the declarant. The Crawford

Court made it clear that it would leave for another day any

effort to spell out a comprehensive definition of testimonial.

The day has not arrived with this case.

In discussing the principals behind the application of the

Confrontation Clause to statements, this Court specifically

mentioned two additional kinds of statements that by their

nature are not testimony: business records and statements in

furtherance of a conspiracy. These types of statements are

clearly non-testimonial hearsay and are governed by the

state’s hearsay statutes.

In this case, the State introduced testimony concerning

a prior incident in which the defendant participated in a

conspiracy to kill the victim. Charles “Tinker” Schmolke, a

confidential informant, contacted Detective Scallan of the

St. Tammany Parish Sheriff's Office and divulged that Gerald

Branigan had approached him and asked for his assistance

in killing someone. According to Schmolke, Branigan was

introduced to Tsolainos by Tsolainos’ daughter Melissa.

Tsolainos was willing to pay someone to kill his ex-wife,

Deborah. Schmolke agreed to wear a Kell recording device

that could be monitored by Scallan for the next meeting.

That afternoon, on June 30, 1998, Schmolke, wired with the

Kell device, went to the residence that Branigan shared with

his girlfriend Melody Johnson and talked about the details

of the conspiracy. The recording made at this meeting is the

taped statement played for the jury. There were two more

meetings that were not recorded because of technical failure

13

with the recording devices. Although Scallan was able to hear

the conversations of all three meetings, he was only able to

record the first meeting. The Judge excluded from

introduction at trial any information from the other two

meetings that were not recorded.

This recording established that Branigan was to be paid

five thousand ($5,000.00) dollars for accomplishing the

murder. He agreed to share twenty-five hundred ($2,500.00)

of it with Schmolke. The two men would have to travel to

St. Louis, Missouri, because the intended victim was a

recovering heroin addict living there with her mother. The

men agreed that they were going to fake an “O.D.” of the

intended victim. See Appendix A.

This tape-recorded statement is clearly statements in

furtherance of a conspiracy and allowable under State law

both under C.E. Art. 404B(1) and Art. 801(D)(3)(b).

To exclude these statements because the declarant had talked

to the police or was labeled a “pclice informant” would

not serve any clear purpose of the Confrontation Clause.

The Confrontations Clause’s ultimate goal is to insure

reliability of evidence as a procedural rather than a

substantive guaranty. As this Court said in Crawford, the

clause reflects a judgment not only about the desirability of

reliable evidence but about how reliability can best be

determined. The presence of a person that has spoken with

the police or is labeled as a police informant does not

move the statements into the realm of testimonial evidence.

This is not the same sort of situation as a custodial

interrogation, a preliminary examination, or a grand jury

questioning. The reliability of statements covered by the

Confrontation Clause is not enhanced by the inclusion of

the taped conversation between Schmolke and Branigan in

i

the definition of “testimonial evidence” because Schmolke

talked to the police and was wired for monitoring and taping.

Respondent urges this Court to continue the

jurisprudence and history that states that hearsay statements

of coconspirators are sufficiently reliable not to violate the

Confrontation Clause under White v. I/linoise, 502 U.S. 346,

112 S. Ct. 763 (1992). Hearsay rules and the Confrontation

Clause are generally designed to protect similar values.

Bourjaily v. United States, 483 U.S. 171, 183, 107 S. Ct.

2775 (1987). This court has reiterated that the co-conspirator

exception to the hearsay rule is firmly rooted in our

jurisprudence. The statement herein, 1s just such a hearsay

exception. Schmolke contacting the police does not change

the characterization of the taped statement as co-conspirator

statements.

C. This Court does not need to consider whether the

Confrontation Clause imposes an absolute bar to a

police informant’s testimony absent a prior

opportunity for cross examination because the

testimony at issue is part of a taped statement in

furtherance of a conspiracy and not isolated for

consideration.

The petitioner in this case asks this Court to make clear

that the general reliability exception in Ohio v. Roberts, 448

U.S. 56, 100 S. Ct. 2531 (1980) no longer survives Crawford,

even as to non-testimonial evidence. In order to do this, the

petitioner asks this Court to lift a police informants testimony

out of context from the taped conspiracy statement and apply

Sixth Amendment analysis to establish a new rule that would

absolutely bar that testimony absent prior opportunity for

cross-examination.

eT ee ee ee Eee ea ee ee ee ee

15

Mr. Schmolke came to the police with information that

Gerald Branigan contacted him and requested that Schmolke

participate in a killing for hire instigated by Panos Tsolainos.

The “police informant’s testimony” referred to in this section

by petitioner is the taped conversation that Schmolke had

with Branigan after Schmolke contacted the police. This

taped conversation was a statement of two people in

furtherance of a conspiracy. Schmolke’s testimony cannot

be isolated. The discussion must center around the taped

conversation between Branigan and Schmolke and not just

Schmolke’s part of the conversation.

In this issue, petitioner attempts to focus the Court’s

attention on Schmolke alone. Petitioner even makes a

personal attack on Mr. Schmolke’s character with a litany of

negative personality traits, including drug use and reference

to a criminal history. Petitioner fails to point out to the Court

that the co-conspirator in the statement, Gerald Branigan,

was in fact convicted of conspiracy to commit murder.

The issue here is the taped statement between Schmolke and

Branigan. The analysis for this Court must focus on the entire

taped statement itself and not the isolated words of one

co-conspirator.

The focus must remain on the conversation between two

people, Schmolke and Branigan. The taped statement was a

Kell tape that recorded the conversation of Schmolke,

Branigan, and Melody Johnson, Branigan’s girlfriend, at

Johnson’s house. The conversation verified that Schmolke

was solicited to participate in the conspiracy to kill Deborah

Tsolainos.'* There was ample ¢vidence of acts in furtherance

of this conspiracy: an agreement on the price of the killing;

12. R. 2257

16

an agreement concerning the method to use; an agreement

on a signal for a safe return of Branigan and Schmolke from

St. Louis to Louisiana following the homicide; Panos’

agreement to provide Branigan and Schmolke a picture of

Deborah.

Moreover, petitioner admitted in the taped statement to

police after his arrest on the conspiracy charge, that he and

Branigan had several conversations during which they

established a price and a method for the murder. They also

devised a plan to protect the perpetrators from returning to

St. Tammany Parish if the plan to make the death appear

accidental went awry. As the First Circuit’s opinion pointed

Out, petitioner’s statement alone supported the existence of

a conspiracy between petitioner and Branigan. Then the

recorded conversation between Branigan and Schmolke

verified the existence of a conspiracy and presented positive

acts in furtherance of that conspiracy.

It must also be noted that when Branigan first contacted

Schmolke to help him kill Deborah, Schmolke was not acting

as a State agent and not a police informant at that time.

It was Schmolke who went to the police not the reverse.

Schmolke’s statements made on the Kell tape cannot be

isolated in order to make new law or expand the definition

of “testimonial evidence.” This Court should not isolate one

side of a conversation in order to establish new parameters

for the Confrontation Clause.

This recorded statement must be analyzed as a whole

without isolating the individuals. It is clearly a statement of

coconspirators that resides outside of the parameters of

Crawford and not included in the definition of “testimonial

evidence”. This writ should not be granted for this issue.

17

D. This Court should not extend the Confrontation

Clause to statements in furtherance of a conspiracy,

now admissible under C.E. Art. 801(D)(3)(b), to

exclude them from trial if they cannot pass a

reliability test and be subject to cross examination.

In this issue, petitioner is asking the Court to extend the

Confrontation Clause to statements of coconspirators and

apply a reliability test. Petitioner proposes that after a

determination is made that a coconspirator’s testimony is

admissible as a firmly rooted hearsay exception, it should

then be tested for its inherent reliability and only be admitted

with cross-examination. Petitioner asks this Court to return

to its concerns in Crawford and add a second test to look at

the subjective indicia of reliability that he claims would

overcome any presumption of reliability generally afforded

by a firmly rooted hearsay exceptions. Thus, petitioner wants

this Court to reestablish a test relevant to reliability as

denounced in Crawford.

Petitioner erroneously claims that the State’s evidence

of the conspiracy in this case was dependent entirely on

Branigan/Schmolke tape recorded conversation. However,

Petitioner’s own statement after his arrest for conspiracy to

commit murder corroborated Branigan’s assertions to

Schmolke that Panos solicited him to kill Deborah Tsolainos.

Branigan’s solicitation of Schmolke to assist him in the

murder was another “overt act” necessary for the furtherance

of the conspiracy. Conspiracies are made up of statements of

coconspirators. A prima facie case of conspiracy is presented

when the State introduces evidence which, if unrebutted,

would be sufficient to establish facts of a conspiracy. State

v. Lobato, 603 So. 2d 739 (La. 1992). Moreover, the

Statements made by coconspirators which are the object of

18

defense counsel’s hearsay objections are considered by the

trial court in making its determination as to whether a prima

facie case of conspiracy has been established. Prima facie

cases are generally made using hearsay statements by

witnesses and/or coconspirators.

Moreover, Bourjaily v. United States, supra, reiterated

the bootstrapping rule of Glasser v. United States, 315 U.S.

60 (1942) and United States v. Nixon, 418 U.S. 683 which

established that in determining preliminary questions

concerning admissibility, the Court is not bound by the rules

of evidence, thus, authorizing consideration of hearsay. The

Bourjaily court rejected a per se rule barring the consideration

of coconspirator statements during preliminary fact finding

and stated that such a rule was not required. Like the

statements in Bourjaily, the coconspirator statements in the

tape-recorded statements here were verified by other events

that transpired in the meetings that culminated with the arrest

of Panos, Branigan, and Melissa for conspiracy to commit

murder. Furthermore, the Bourjaily court reiterated the

jurisprudence that if the statements are admissible under the

federal rule of evidence, Rule 801(d)(2)(E), there is no

constitutional problem.

In this issue, petitioner wants the Court to eliminvte a

hearsay exception that covers statements that by their very

nature are not testimonial. Crawford said that these particular

hearsay exceptions were not testimonial evidence and not

subject to the Sixth Amendment Confrontation Clause.

Petitioner is asking this Court to back out on its holding in

Crawford and redefine statements by co-conspirators.

Petitioner also continues to return to the First Circuit’s

statement that said, “From our review of this record, we find

19

that the contested statement in the instant case was a

coconspirator’s statement with the referential ‘indicia of

reliability.’ Thus, its admission into evidence was not a

violation of the confrontation clause.” Petitioner wants this

Court to grant the writ because of the First Circuit’s reference

to “indicia of reliability.” The statement was acknowledged

by the First Circuit as a coconspirator statement that is firmly

rooted as a hearsay exception. The additional comments by

the First Circuit that refer to the “indicia of reliability” do

not affect the character of the coconspirator’s statements

themselves. Because this opinion was written prior to the

decision in Crawford, the Court, in an abundance of caution,

referred to the reliability test in Ohio v. Roberts. Nonetheless,

the character of the statement is not changed by the comments

of the First Circuit Court of Appeal. This issue does not

provide the Court a reason to grant this writ.

20

CONCLUSION

It is not necessary for the Court to grant this petition for

writ of certiorari, nor is the alternative, plenary review,

necessary. The Louisiana Court of Appeal for the First Circuit

opinion more than adequately covers the issues raised by this

writ and its opinion, even in light of Crawford, can be

maintained under constitutional scrutiny.

Respectfully submitted,

HONORABLE WALTER P. REED Dorotuy A. PENDERGAST*

22" JDC District Attorney Special Appeals Counsel

701 N. Columbia Street da fC

Covington, LA 70433 District Attorney’s Office

(985) 809-8384 4524 Wilson Drive

Metairie, LA 70003

(504) 885-3503

(504) 258-7334

* Counsel of Record

Attorneys for Respondent