State v. Cornell

• Citation: 842 P.2d 394,314 Or. 673
• Parties: STATE of Oregon, Respondent on Review, v. Donald Edward CORNELL, Petitioner on Review. CC 85-1107; CA A49478; SC S38725.
• Decision Date: 25 November 1992
• Court: Supreme Court of Oregon

Page 394

842 P.2d 394

314 Or. 673

STATE of Oregon, Respondent on Review, v. Donald Edward CORNELL, Petitioner on Review.

CC 85-1107; CA A49478; SC S38725.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 8, 1992.

Decided Nov. 25, 1992.

[314 Or. 174-A] Laura Graser, Portland, argued the cause and filed the petition for petitioner on review.

Michael Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

UNIS, Justice.

Defendant appeals from convictions on two counts of felony murder for the homicide of John Ruffner, allegedly committed during the course of robbing him and burglarizing his residence. ORS 163.115. Defendant was originally indicted with Mark Allen Pinnell in October 1985 for one count of aggravated murder and two counts of felony murder. In January 1988, defendant and Pinnell were indicted on five counts of aggravated murder. ¹ Defendant's motion for a separate trial was allowed in March 1988. ² In that trial, defendant was acquitted of aggravated murder and convicted on both counts of felony murder, which were merged for purposes of sentencing. The Court of Appeals affirmed the judgment of the trial court. State v. Cornell, 109 Or.App. 396, 820 P.2d 11 (1991). We allowed review to consider defendant's challenge of the introduction of We take the following statement of facts from the Court of Appeals' opinion:

evidence of statements of a coconspirator under OEC 801(4)(b)(E).

"Defendant and Pinnell got the victim's name and phone number from the Swing N Sway magazine, where people advertise for sexual contacts. They drove to the victim's residence in a car borrowed from Dixie Timmons, Pinnell's ex-wife. They were accompanied by a woman named Velma Varzali. She stayed in the car when defendant and Pinnell went into the victim's residence. Several hours later the two men returned to the car and loaded it with personal property taken from the residence. Later that same day, defendant wrote checks on the victim's account and used his credit cards.

"The next day, the victim's body was discovered on the bathroom floor of his apartment. His feet and hands were tied behind his back with an electric appliance cord and there was a cord around his neck. Evidence at trial described this type of restraint as 'hog-tying.' The victim died of asphyxiation, because of the cord around his neck and the wad of toilet paper stuffed in his mouth. [The victim had been struck on the right side of his head, which caused a tear of his ear.] The apartment had been ransacked and several items of property taken, including the victim's wallet and checkbook.

"When defendant and Pinnell were arrested a few days later at Timmons' house, defendant had the victim's checkbook and credit cards and was wearing two rings taken from the victim. The police also seized several items of the victim's property that were at Timmons' house.

"During trial, the state introduced evidence that defendant and Pinnell had assaulted and robbed Randy Brown about 10 days before they killed Ruffner. The state's theory for admission of the evidence was that the facts of the Brown assault were so similar to the Ruffner homicide that it was relevant to identify the two men as the perpetrators of that killing." Id. at 398-99, 820 P.2d 11.

The trial court, over defendant's objection, allowed the state to introduce, through the testimony of other witnesses, eleven statements made by Pinnell. ³ The Court of Appeals held that the trial court did not err in admitting the statements as statements of a coconspirator under OEC 801(4)(b)(E). State v. Cornell, supra, 109 Or.App. at 401, 820 P.2d 11. The Court of Appeals also held that the admission of the coconspirator statements did not violate defendant's confrontation rights under either Article I, section 11, of the Oregon Constitution or the Sixth Amendment to the United States Constitution. Id. at 402, 820 P.2d 11. We affirm.

When "offered against a party," OEC 801(4)(b)(E) treats as "not hearsay" ⁴ "[a] statement by a coconspirator of a party during and in furtherance of the conspiracy." ⁵ OEC 801(4)(b)(E) requires that the party seeking to introduce a statement by a coconspirator must establish, as foundational requirements: (1) that there was a In the present case, the statements at issue--Pinnell's statements--were offered by the state against a party (defendant). Thus, in order to admit Pinnell's statements under OEC 801(4)(b)(E), the trial court was required to find by a preponderance of the evidence (1) that there was a conspiracy with respect to the Ruffner and Brown crimes and that both defendant and the declarant (Pinnell) were members of that conspiracy, (2) that Pinnell's statements were made "during the course" of the conspiracy, and (3) that Pinnell's statements were made "in furtherance of the conspiracy". The trial court found that the foundational requirements were met and admitted Pinnell's statements under OEC 801(4)(b)(E).

                conspiracy in which both the accused and the declarant 6 were members;  (2) that the declarant made his or her statement "during the course" of the conspiracy;  and (3) that the statement was made "in furtherance of the conspiracy."   Whether the foundational requirements are met is a preliminary question of fact to be determined by the trial court under OEC 104(1), 7 and each requirement is to be established by a preponderance of the evidence.  See State v. Carlson, 311 Or. 201, 209, 808 P.2d 1002 (1991) (admissibility of statements of a party-opponent is to be resolved by trial court under OEC 104(1)). 8
                

On review, we determine whether there was sufficient evidence to support the trial court's finding, by a preponderance of the evidence, that the preliminary foundational requirements were met. State v. Carlson, supra, 311 Or. at 214, 808 P.2d 1002. In making this determination, "[w]e view the record consistent with the trial court's ruling * * *, accepting reasonable inferences and reasonable credibility choices that the trial judge could have made." Id.

EXISTENCE OF CONSPIRACY AND MEMBERSHIP REQUIREMENT

The substantive law defines a conspiracy. ORS 161.450(1) states that a criminal conspiracy exists if, "with the intent that conduct constituting a crime punishable as a felony or a Class A misdemeanor be performed, [a] person agrees with one or more [other] persons to engage in or cause the performance of such conduct." Although the substantive law defines a criminal conspiracy, the Oregon Evidence Code states the evidentiary principles concerning the admissibility of coconspirator statements. A person need not be charged with or found guilty of criminal conspiracy or of the underlying crime in order to be a coconspirator under OEC 801(4)(b)(E). ⁹ See State v. Gardner, 225 Or. 376, 384, 358 P.2d 557 (1961) (prior to adoption of evidence code, admissibility of statements of coconspirators did not depend on including conspiracy in indictment); 2 McCormick on Evidence 168, § 259 (4th ed 1992) (citing federal cases) ("[t]he existence of a conspiracy in fact is sufficient to support admissibility, and a conspiracy count in the indictment is not required and the declarant need not be charged"). Because there usually is no formal agreement to begin a conspiracy, the very existence of a conspiracy usually must be inferred from the facts surrounding the statements. 4 Weinstein & Berger, Weinstein's Evidence 801-335, p 801(d)(2)(E) (1992). See State v. Farber Based on the facts in the record, summarized above, and accepting reasonable inferences and reasonable credibility choices that the trial judge could have made, we conclude that there was sufficient evidence to support the trial judge's finding, by a preponderance of the evidence, that a conspiracy existed with respect to the Ruffner and Brown crimes and that defendant and Pinnell were members of that conspiracy.

295 Or. 199, 206 n. 9, 666 P.2d 821 (1983) ("the evidence to establish a conspiracy is generally circumstantial"); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (quoting United States v. Manton, 107 F.2d 834, 839 (2d Cir.1939)) (under federal rules, "[p]articipation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a 'development and a collocation of circumstances' ").

"DURING THE COURSE" OF THE CONSPIRACY REQUIREMENT

For the purpose of applying the coconspirator exemption in OEC 801(4)(b)(E), the duration of a conspiracy is not limited by the commission of the elements of the underlying crime. Conduct before or after the commission of the elements of the underlying crime are part of a conspiracy, if the conduct is either in planning, preparing for, or committing the crime, or in eluding detection for, disposing of, or protecting the fruits of the crime. ¹⁰ Here, the alleged conspiracy included robbing the victims. At a minimum, a conspiracy to rob continues until the articles stolen are removed from the scene of the crime and are disposed of in some manner. See State v. Gardner, supra, 225 Or. at 384, 358 P.2d 557 (so stating under former conspiracy statute).

In this case, the challenged statements by Pinnell were made before or shortly after one of the robberies and before the stolen articles had been disposed of. There was sufficient evidence to support the trial judge's finding, by a preponderance of the evidence, that Pinnell's statements were made "during the course" of the conspiracy.

"IN FURTHERANCE OF THE CONSPIRACY" REQUIREMENT

Pinnell's statements must also have been made "in furtherance of the conspiracy." This requirement goes beyond the temporal requirement that the statement be made "during the course" of the conspiracy and focuses on whether the statement was intended in some way to advance the objectives of the conspiracy. A statement in furtherance of a conspiracy must have been meant to advance the objectives of the conspiracy in some...