State v. Davey, 111774

Denise Davey was convicted of attempted first-degree murder and conspiracy for arranging or participating in an attack on her husband; three assailants (her daughter Nicole, Nicole’s boyfriend Adam, and Adam’s sister Whitney) attacked the husband and were arrested.
At trial Nicole and Adam invoked the Fifth Amendment and did not testify; the State introduced their out-of-court statements via Whitney’s testimony, text messages, and recorded jail calls.
Defense objected that these out-of-court statements were inadmissible hearsay and argued they did not fall within the coconspirator exception and that the defense lacked cross-examination opportunity.
The trial court admitted the statements under the coconspirator exception in K.S.A. 2016 Supp. 60-460(i)(2); the Court of Appeals affirmed in an unpublished opinion.
Before the Kansas Supreme Court the sole issue was whether the coconspirator hearsay exception may be applied when the hearsay is offered through a coconspirator rather than a nonconspirator third party.
The Supreme Court affirmed, holding that the statute’s language controls and disapproving the prior judicially created requirement that the testifying witness be a third party (non-coconspirator).

Issue	Plaintiff's Argument (State)	Defendant's Argument (Davey)	Held
Applicability of coconspirator hearsay exception when offered through a coconspirator	Statute permits admission if statement by coconspirator is relevant and made during conspiracy; no third-party requirement	Hearsay inadmissible because the exception requires the statement be introduced by a third party not participating in the conspiracy	Court held the statute requires only: (1) statement by a coconspirator, (2) made during the conspiracy, and (3) relevant to the plan; the third-party rule is disapproved and exception may be applied through a coconspirator
Whether the out-of-court statements met the statutory requirements	Evidence supports conspiracy, timing, and relevance; admissible	Statements not in furtherance or outside conspiracy; defendant lacked cross-examination opportunity	Court found substantial competent evidence satisfied the three statutory elements and affirmed admission
Preservation of objection to admission method	State argued Davey changed her objection on appeal (failure to preserve)	Davey argued trial objections preserved the issue	Court of Appeals did not address preservation; Supreme Court noted State did not cross-petition on that point and proceeded on merits
Whether prior judicial requirements beyond statutory text remain valid	—	Argued Bird’s third-party requirement should apply	Court disapproved Bird’s third-party requirement, aligning with statutory text and prior decisions like Sharp

State v. Bird, 238 Kan. 160 (1985) (established a multi-part coconspirator test including a third-party requirement)
State v. Sharp, 289 Kan. 72 (2009) (disapproved portions of Bird inconsistent with statutory language)
State v. Jackson, 280 Kan. 16 (2005) (admitted coconspirator statements via another coconspirator; court has been inconsistent with Bird)
State v. Betancourt, 301 Kan. 282 (2015) (affirmed admission of coconspirator out-of-court statements through testimony of another coconspirator)
State v. Roberts, 223 Kan. 49 (1977) (early case articulating court-made limitations later questioned)
State v. Moody, 223 Kan. 699 (1978) (discussed application of K.S.A. 60-460(i) in conspiracy contexts)
State v. Bryant, 272 Kan. 1204 (2002) (criticized use of res gestae and other outdated doctrines)