## Facts

- The State of Louisiana charged Demond Carey and Bobby Wallace with second-degree murder for the shooting death of Johnny Lee Atkins.
- The state’s theory was that Carey was driving a car with Wallace and Tronde Young as passengers when they encountered Atkins on Willis Street, exchanged words, and Wallace produced a gun and shot Atkins.
- At trial, Young testified that he had not been in the car and had no personal knowledge of the shooting.
- To contradict Young’s trial testimony, the prosecution called Eric Clinton, who testified about Young’s prior out-of-court statements.
- Clinton testified that Young previously said he had been with Carey and Wallace on the night of the shooting and that “something happened” on Willis Street.
- Clinton also testified that Young, in the presence of Carey and Wallace, described details of the incident, including that Wallace fired a shot, that Wallace asked Atkins for money, and that Carey said the shooting occurred because of money and weed.
- During closing argument, the prosecutor urged the jury to accept the substance of Young’s prior statements (as related by Clinton) as proof of guilt.
- The trial court instructed the jury that Clinton’s testimony about Young’s prior statements was admitted only to contradict Young and not as proof that the statements were true.
- The jury found Carey and Wallace guilty of second-degree murder, and the trial court imposed mandatory life sentences at hard labor without benefits.
- On appeal, the Louisiana Court of Appeal, Second Circuit initially reversed, concluding the jury likely used impeachment testimony as substantive evidence in violation of the limiting instruction, and it ordered the defendants discharged.
- The state sought rehearing, arguing that Young’s statements made in the defendants’ presence and not denied by them were admissible as adoptive admissions attributable to Carey and Wallace.

## Issues

1. Whether Young’s statements describing the shooting, made in the presence of Carey and Wallace and not denied by them, were admissible against the defendants as adoptive admissions rather than merely impeachment evidence.
2. Whether, treating those statements as adoptive admissions, the evidence was sufficient to support the second-degree murder convictions.

## Decision

- On rehearing, the Louisiana Court of Appeal, Second Circuit held that Young’s statements made in Carey and Wallace’s presence, coupled with their failure to deny or object, could be considered adoptive admissions by the defendants.
- The court ruled that, as adoptive admissions, the statements were substantive evidence against Carey and Wallace, not limited to impeachment use.
- Applying the sufficiency standard (viewing the evidence in the light most favorable to the prosecution), the court found the evidence sufficient to support both convictions.
- The court withdrew its earlier reversal and affirmed the convictions and life sentences.

## Legal Principles

- A statement made in the presence and hearing of an accused that is incriminating or accusatory, followed by the accused’s failure to deny, contradict, or object when a response would be expected, may be admitted along with the silence as an adoptive admission.
- When a statement qualifies as an admission of a party opponent (including by adoption), it may be used as substantive evidence, not only for credibility impeachment.
- A limiting instruction restricting a prior statement to impeachment does not control the legal characterization of the statement if the statement is otherwise admissible as an admission attributable to the defendant.
- In reviewing sufficiency of the evidence, the court applies the Jackson v. Virginia standard, asking whether any rational juror could find guilt beyond a reasonable doubt when evidence is viewed in the light most favorable to the prosecution.
- Credibility choices are for the jury; a conviction may rest on testimonial evidence if the jury could reasonably credit it.

## Conclusion

State v. Carey holds that when incriminating statements about a crime are made in a defendant’s presence and the defendant does not deny them under circumstances calling for a response, the statements and the silence may be treated as adoptive admissions and used as substantive proof; on rehearing the court applied that rule to Young’s statements as recounted by Clinton and affirmed Carey’s and Wallace’s second-degree murder convictions and mandatory life sentences.


State v. Carey, 628 So. 2d 27 (1993)