State v. Farber
| Citation | 666 P.2d 821,295 Or. 199 |
| Parties | STATE of Oregon, Respondent on Review, v. Curtis L. FARBER, Petitioner on Review. TC 80-9-30, CA 19380, SC 29091. . * |
| Decision Date | 29 June 1983 |
| Court | Supreme Court of Oregon |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Rudolph S. Westerband, Asst. Atty. Gen., Salem, filed the brief for respondent on review.
John S. Ransom, Portland, filed an Amicus Curiae brief for ACLU Foundation of Oregon, Inc. With him on the brief was Ransom, Blackman & Simson, Portland.
Defendant appeals his jury conviction for murder. He contends that the trial court erred in admitting statements made by his alleged coconspirator. The claim of error involves questions of the nature of the hearsay testimony, the sufficiency of the evidence establishing the alleged conspiracy and defendant's federal constitutional right of confrontation. The Court of Appeals initially reversed defendant's conviction, but on reconsideration, affirmed the conviction and remanded for resentencing. 1 State v. Farber, 59 Or.App. 725, 652 P.2d 372 (1982). We also affirm his conviction.
The state's basic theory of the case is that defendant Curtis Farber owed money to his drug supplier, Harry Foss, Jr. Because someone stole defendant's supply of drugs, he was unable to pay his debt to Foss, so he hired Whitney to kill Foss.
At trial defendant admitted that early in May of 1980 he decided to make some money by selling cocaine. He bought 11 ounces of cocaine from the murder victim, Foss. He agreed to pay $1,950 per ounce for a total price of $21,450. Foss "fronted" these drugs to Farber, which meant that Farber could wait to pay Foss for the drugs until after the drugs were all sold. Defendant planned to sell the cocaine in smaller quantities for profit. He disposed of four ounces of the cocaine. On June 17, 1980, someone stole the remaining seven ounces of cocaine from his car.
Although Farber did not know it, three of his tenants were responsible for the theft. Mark Whitney lived in a house owned by Farber. A young woman named Kerry Fouts and a young man named Kevin Freer lived with him in the house. Farber evidently told Whitney that he expected to get some cocaine from his supplier soon. Whitney was going to help Farber sell some of the cocaine for a share of the profit. Whitney guessed that Farber had the drugs in his car on June 17, 1980, and arranged with Fouts and Freer that the three of them would steal the cocaine, which they did. After the theft, they sold some of the cocaine and consumed the rest.
Following this theft, Farber came to his tenant and friend Whitney and told him the drugs had been stolen. Farber speculated with Whitney about who might have been responsible for it. Whitney, of course, did not admit that he or his friends were the actual thieves. He suggested to Farber that the supplier might be responsible for the theft. Farber was concerned with the $22,000 debt he owed to the supplier Foss, and the fact that most of the drugs had been stolen. There was testimony that in the past Foss told people that he had "Mafia" connections and could have people "strong-armed" if they did not pay their drug debts. Whitney evidently encouraged Farber to believe that Foss had to be "taken care of." Fouts testified that she heard A few days after the theft, Kerry Fouts told a friend that she, Freer and Whitney stole the cocaine. When Whitney heard about this, he threatened Fouts with violence and she moved out of the shared house. Within a few days, Whitney and Freer also moved out. They lived in several different places during the next days. They remained in contact with Farber, who was still concerned about the debt he owed Foss. According to testimony, Farber decided to hire Whitney to "stop" Foss. This was understood to mean either scare him off so he would not demand money from Farber or kill him if this was necessary.
Farber say he either had to pay Foss or have him killed. She also said she heard a discussion about how much Whitney would receive for killing Foss.
Neither Whitney nor Freer had ever seen Foss or heard his name. Farber only referred to him as "the man" or the supplier. Farber described Foss and the car he drove and gave Whitney his home address. They discussed a possible stake-out.
On June 25, 1980, Whitney and Freer moved to a mobile home owned by Farber. The two halves of the mobile home had not been fastened together yet and Farber was concerned about security. Farber was at the site off and on.
On the morning of June 27, 1980, Whitney and Freer were at the mobile home. Shortly after Farber left, a man arrived at the trailer site. Both the man and the car he was driving matched the descriptions that Farber had given them. The man, Foss, got out of his car and asked where Farber was. Whitney shot him several times when he was returning to his car. Freer also shot in Foss' direction.
After this shooting, Whitney and Freer put Foss' body in the trunk of their car. They drove around looking for a place to dispose of Foss' body. On June 29, 1980, they finally got rid of the body in an incinerator at a local dairy. Whitney called Farber and arranged a meeting at a restaurant that same day. Immediately after the meeting with Farber, Freer saw that Whitney had some cash, which he estimated at between $500 and $1,000, which Whitney did not have before the meeting.
Freer pleaded guilty to conspiracy to commit murder and testified at Farber's trial. Whitney pleaded not guilty to a charge of murder. Defendant's counsel told this trial court that Whitney's counsel said Whitney would claim his privilege against self-incrimination and would not testify at Farber's trial. 2
Farber was charged with murder in violation of ORS 163.115(1). 3 At his trial, he stipulated that Foss was shot and killed by Whitney at the place and time and in the manner that the state claimed. Farber further admitted that he told Whitney about his problems with the stolen cocaine and the debt he owed his supplier, but he denied hiring Whitney to kill Foss. He testified he was on a bicycle ride all day on June 29, and thus could not have met Whitney and paid him off.
Because of the testimony by Freer and Fouts, the state contended that it had established that a conspiracy existed and moved the court to allow the admission of hearsay statements made by Whitney under (Footnote omitted.) (Testimony of Mr. Freer, Tr at 919-924, 930-932).
Defendant's claim of error is based solely on the admission of this evidence. He contends that the trial court should have excluded this evidence on three different bases: (1) the nature of the hearsay testimony; (2) there had been insufficient evidence to establish a conspiracy; and (3) the admission of this evidence was a violation of defendant's constitutional right of confrontation.
The early history of the admission of a coconspirator's statement in view of the rule against the admission of hearsay is unclear, although this exception to the hearsay rule was cited as early as 1794 in the English trial of Thomas Hardy. Trial of Thomas Hardy, 24 How St Tr 200, 451-453, 473-477 (1794). The first mention in a United States Supreme Court case was United States v. Gooding, 25 U.S. (12 Wheat.) 460, 467-468, 6 L.Ed. 693 (1827). The exception has been codified in Oregon law since 1862. Act of October 11, 1862, § 696(6).
This exception has been justified on three different grounds: 1) these statements were made by the defendant's agent, and thus should be considered statements of the Defendant's first objection is evidently that ORS 41.900(6) only makes statements admissible as coconspirator's statements if they are "statements having a more significant bases [sic] for reliability." He summarizes some cases that he contends support his proposition that even under this statute only incriminating statements or statements directly relating to the declarant's own actions or observations are admissible. We do not read either the statute nor the cases so narrowly. The above testimony is the sort made admissible under former ORS 41.900(6).
principal; 6 2) these statements tend to be inculpatory, and thus are likely to be...To continue reading
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