Laske v. State

• Decision Date: 15 January 1985
• Docket Number: Nos. F-82-614,F-82-615,s. F-82-614
• Citation: 1985 OK CR 7,694 P.2d 536
• Parties: Gregory Scott LASKE, and William Carl Henn, Appellants, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 536

694 P.2d 536

Gregory Scott LASKE, and William Carl Henn, Appellants, v. STATE of Oklahoma, Appellee.

Nos. F-82-614, F-82-615.

Court of Criminal Appeals of Oklahoma.

Jan. 15, 1985.

Mary E. Bane, Oyler & Bane, Oklahoma City, for appellant Laske.

Mark Barrett, Sp. Counsel, Appellate Public Defender System, Norman, for appellant Henn.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

Appellants were convicted by a jury in the District Court of Oklahoma County, Case No. CRF-81-4562, of Conspiracy to Distribute a Controlled Substance, Marijuana. For Laske, it was After Former Conviction of a Felony. Laske was sentenced to twelve (12) years imprisonment and a $1,500.00 fine. Henn was sentenced to four (4) years imprisonment and a $1,000.00 fine. Since our holding applies to both cases, they are consolidated in this opinion.

In late September or early October, 1981, Oklahoma City Police, through their Crime Stoppers Program, received a tip from Ricky G. Wellington. Based on that tip, an Oklahoma City Police Narcotics Officer contacted Wellington, and Wellington introduced the officer to David Wayne Black. On October 8th, the officer, posing as a buyer, had a series of telephone conversations with Black, during which a deal was struck for Black to sell fifty (50) pounds of marijuana to the officer for $17,500.00.

The state's first witness was the officer, who testified as to his role in the sale, and played the tape recordings of his phone conversations with Black, as well as testifying about the arrests of appellants, Laske and Henn, and Barry Keith Maxon. Appellants and Maxon were in cars parked nearby, allegedly "covering the deal."

At trial, Wellington testified that Black contacted Laske, and the two of them (Black and Laske) procured the marijuana, much of which was already in their possession. Wellington also testified that Henn and Maxon were to assist in the sale; and that the five men had a discussion at Laske's house of how the transfer would be effected.

Though Black was also arrested and named in the information in this case, only Laske, Henn and Maxon were tried. After his arrest, Black was released on bond, and then disappeared. Thus, the main issue in this case revolves around the admissibility of hearsay evidence in the form of the recorded telephone declarations of Black, and testimony from Wellington as to statements made by Black. As this issue is dispositive, we need not reach the appellants' other assignments of error.

Due to the nature of the offense of conspiracy, an exception to the hearsay rule has long been recognized for statements of co-conspirators. That exception was recently codified in the Oklahoma Evidence Code. 12 O.S.1981, § 2801 provides:

4. A statement is not hearsay if:

* * *

b. the statement is offered against a party and is

* * *

(5) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

However, there is an important corollary to that rule.

It is equally well settled that the existence of a conspiracy must first be proved before a declaration of one not on trial is admissible against the defendant; ...

Burns v. State, 72 Okl.Cr. 432, 444, 117 P.2d 155, 160 (1941). See also United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039, 1060 (1974).

This corollary is required because, "Otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence." Glasser v. United States, 315 U.S 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680, 701 (1942).

Certain relevant portions of the Oklahoma Evidence Code, 12 O.S.1981, Ch. 40, have not been construed by this court in relation to the offense of conspiracy. Since the Evidence Code was patterned after the Federal Rules of Evidence with the intent that practice in both state and federal courts be uniform, it is useful to look to federal interpretations. See 12 O.S.A., Ch. 40 (West, 1981) (Comment by Chairman, Subcommittee on Evidence).

Initially, we note that the trial judge is to make the determination of whether the state has presented sufficient independent evidence to prove the conspiracy. 12 O.S.1981, § 2105 states:

A. Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection B of this section.

B. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

This statute (in its federal form) was interpreted in United States v. Andrews, 585 F.2d 961 (10th Cir.1978). "[F]inding a prima facie case is not the same as 'determining' that a conspiracy existed. A higher standard is implicit in the judge's new role." Id. at 966.

A four-step procedure for determining admissibility of hearsay evidence under the new rules was first promulgated in United States v. James, 590 F.2d 575 (5th Cir.1979) and endorsed in United States v. Petersen, 611 F.2d 1313 (10th Cir.1979). The procedure was aptly stated as follows:

1. The judge alone, pursuant to Rule 104(a), Fed....