dissenting.
The majority unwisely extends the already expansive hearsay *400exception for co-conspirator’s statements under state law to allow the admission of an out-of-court statement made after the conspiracy-ended. Because Joaquin and David Arevalo had incriminated themselves and their fellow conspirator in the crimes of armed robbery and murder before the disputed letter was written, the conspiracy was over and the letter should have been excluded from evidence as inadmissible hearsay. Given the State’s reliance on the letter to prove Joaquin Arevalo’s guilt, I agree with Justice Thompson’s analysis that its admission was harmful error. Therefore, I also dissent.
This Court has held that a conspiracy ends when one conspirator incriminates the other conspirator in a statement to police.2 The rationale is that the bond between the conspirators is broken and their unity is dissolved once they begin placing blame on one another.3 In this case, Joaquin Arevalo, David Arevalo, and Ernesto Mejia formed a conspiracy to commit an armed robbery that resulted in two murders. Following their arrest, both of the Arevalo brothers admitted their involvement in the armed robbery to police and identified the three participants in that crime. By these admissions, they incriminated themselves and Mejia not only in the planned armed robbery but also in the murders that occurred while they were committing the robbery.4 Thus, their conspiracy ended when they were arrested and confessed to police.
Although the majority concedes that the conspiracy to commit armed robbery ended when the brothers admitted their involvement in that crime, it finds an ongoing conspiracy between the Arevalos to blame Ernesto Mejia solely for the crime of murder. Neither the facts nor the law support the majority’s division of one “ ‘calculated criminal enterprise consisting of conspiratorial armed robbery resulting in murder’ ” into two separate conspiracies.5 Under our state’s criminal law, the fact that one person fires the fatal shot during an armed robbery does not absolve the other armed robbery participants of their culpability for the murder.6 A person who commits a felony may be convicted of felony murder for the homicide that results during the commission of that felony despite a lack of intent to kill,7 and a person who commits an armed robbery may be convicted of malice mur*401der without firing a shot.8 Therefore, when David and Joaquin Arevalo admitted to police that they had committed the armed robbery with Ernesto Mejia, they were incriminating themselves in the two murders that occurred during the armed robbery. Their conspiracy was over because they were no longer concealing either the fact that the crimes had been committed or the identity of the perpetrators of those crimes. As a result, David Arevalo’s subsequent letter was, at best, the inadmissible hearsay declaration of a former conspirator.
Moreover, the only evidence that suggested any conspiracy by Joaquin and David Arevalo to conceal the identity of the actual triggerman was the contested letter itself. This Court has held that the State must make a prima facie showing of a conspiracy from evidence outside the statement it seeks to introduce.9 Thus, even if an effort to conceal the identity of the triggerman were considered an ongoing conspiracy, the State should have been required to prove the conspiracy by evidence other than the contents of the contested letter. To hold otherwise would employ circular reasoning: the letter should be considered exempt from the safeguards of the hearsay rule because it was written as part of a conspiracy proven to have remained intact by nothing more than the letter itself.
Finally, assuming the letter were properly authenticated and shown to fall under the exception for co-conspirators’ statements, the State failed to demonstrate sufficient indicia of reliability to have the letter admitted into evidence over objection.10 Among the factors that bear upon the question of reliability are whether “the circumstances under which the declarant gave the statement suggest that the declarant did not misrepresent the defendant’s involvement in the crime.”* 11 Here, the State had filed a notice of intent to seek the death penalty against David Arevalo, and he was engaged in plea negotiations at the time he was supposed to have written the letter. Because the circumstances under which David Arevalo allegedly wrote the letter suggest that he had reason to downplay his own role and misrepresent his brother’s involvement in the crimes, the letter should have been excluded from evidence as lacking sufficient indicia of reliability.
I am authorized to state that Presiding Justice Sears joins in this dissent.
See Crowder v. State, 237 Ga. 141, 153 (227 SE2d 230) (1976).
Id.
See Martin v. State, 271 Ga. 301 (518 SE2d 898) (1999) (finding sufficient evidence to support murder conviction when defendant admitted participating in armed robbery but implicated co-defendant as the shooter).
See Strong v. State, 232 Ga. 294, 299 (206 SE2d 461) (1974) (quoting Conroy v. State, 231 Ga. 472 (202 SE2d 398) (1973)).
See Huynh v. State, 257 Ga. 375, 377 (359 SE2d 667) (1987) (“ ‘It matters not whether it was the appellant or (his accomplice) who actually fired the gun during the robbery which resulted in [the victim’s] death.’ ”).
See Perkinson v. State, 273 Ga. 814, 816 (546 SE2d 501) (2001).
See Wilson v. State, 271 Ga. 811, 813 (525 SE2d 339) (1999).
Brown v. State, 262 Ga. 223, 225 (416 SE2d 508) (1992).
Copeland v. State, 266 Ga. 664, 665 (469 SE2d 672) (1996).
Id.