State v. Cornell
Decision Date | 08 January 1992 |
Citation | 109 Or.App. 396,820 P.2d 11 |
Parties | STATE of Oregon, Respondent, v. Donald Edward CORNELL, Appellant. 85-1107; CA A49478. |
Court | Oregon Court of Appeals |
Laura Graser, Portland, argued the cause and filed the brief for appellant.
Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., Ann Kelley, Asst. Atty. Gen., and Timothy A. Sylwester, Asst. Atty. Gen., Salem.
Before RICHARDSON, P.J., JOSEPH, C.J., * and DEITS, J.
Defendant appeals his convictions on two counts of felony murder for the death of John Ruffner, ORS 163.115. One count was for homicide during the course of the robbery of the victim and one for homicide in the course of burglarizing the victim's residence. 1 He was jointly indicted with Pinnell but there were separate trials. See State v. Cornell/Pinnell, 304 Or. 27, 741 P.2d 501 (1987). Pinnell was convicted of aggravated murder and sentenced to death. His convictions were affirmed, but the death sentence was vacated. State v. Pinnell, 311 Or. 98, 806 P.2d 110 (1991). Defendant seeks reversal of his convictions on several grounds or modification of the minimum sentence. We affirm.
The facts of the homicide are set out in some detail in State v. Pinnell, supra, and we refer the reader to that case for a more complete fact statement. 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 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. The state also offered evidence of a robbery of Anthony Johnson as relevant to identify defendant as the murderer of Ruffner.
Defendant makes 13 assignments of error. The first four challenge the admission of 11 separate statements made by Pinnell and related at trial by various witnesses. The statements related either to the Ruffner murder or the Brown robbery. Pinnell declined to testify on constitutional grounds and was unavailable as a witness. OEC 804(1).
The state contended that the statements were admissible under OEC 801(4)(b)(E) as statements of a co-conspirator or as statements against Pinnell's penal interest. OEC 804(3)(c). Defendant's argument is in three parts. He argues that the statements were not admissible under the co-conspirator exception, because (1) the state did not establish that there were conspiracies involving him to kill Ruffner or to rob Brown; (2) if there were conspiracies, the statements were not made in furtherance of either one of them; and (3) if properly admitted under OEC 801(4)(b)(E), their admission violated defendant's confrontation rights under the state and federal constitutions.
OEC 801(4)(b)(E) provides:
In order for the statements attributed to a co-conspirator to be admitted under OEC 801(4)(b)(E), the state must show a conspiracy involving the defendant by a preponderance of the evidence. State v. O'Brien, 96 Or.App. 498, 774 P.2d 1109, rev. den. 308 Or. 466, 781 P.2d 1214 (1989). Whether that showing has been made is a preliminary question for the court under OEC 104. In making that determination, the court may consider statements of the co-conspirator together with other evidence. State v. O'Brien, supra. Without further detailing it, we conclude that there was evidence to support the trial court's ruling that defendant conspired with Pinnell to rob Brown and, later, to rob Ruffner.
Once the state has established a prima facie case that the conspiracy exists, statements of a co-conspirator made "during the course and in furtherance of" the conspiracy are admissible under OEC 801(4)(b)(E). A conspiracy continues until its objective has been achieved or abandoned, State v. Davis, 19 Or.App. 446, 528 P.2d 117 (1974), and, in case of a conspiracy to rob, until the stolen property has been disposed of. State v. Gardner, 225 Or. 376, 358 P.2d 557 (1961). Because defendant and Pinnell were arrested before they had disposed of all the property taken from Brown and Ruffner, the conspiracies continued, at least up to the time of their arrests. Consequently, all the statements of Pinnell offered by the state were made during the course of the conspiracies.
Defendant challenges 11 separate statements of Pinnell that were admitted under the co-conspirator rule. He contends, inter alia, that none of the statements was made in furtherance of the conspiracy to which they allegedly related.
There are no Oregon cases explaining the phrase "in furtherance of" in OEC 801(4)(b)(E). 2 The rule is derived from Federal Rules of Evidence 801(d)(2)(E), State v. O'Brien supra, and we may look to federal cases applying the federal rule as interpretive guides.
Out of court statements attributed to a co-conspirator, including those about past events, are in furtherance of the conspiracy if they are intended to promote the conspiratorial objective. U.S. v. Munson, 819 F.2d 337 (1st Cir.1987); U.S. v. Reyes, 798 F.2d 380 (10th Cir.1986). A statement need not have furthered the conspiracy in fact if it could reasonably be interpreted as made for that purpose. U.S. v. Schmit, 881 F.2d 608 (9th Cir.1989); U.S. v. Wolf, 839 F.2d 1387 (10th Cir.), cert. den. 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988). Statements between conspirators that bolster confidence and maintain mutual trust are in furtherance of the conspiracy, as are statements that inform co-conspirators of the status of the planned activity and disposition of the proceeds of the crime. U.S. v. Traitz, 871 F.2d 368 (3rd Cir.), cert. den. 493 U.S. 821, 110 S.Ct. 78, 107 L.Ed.2d 44 (1989); United States v. Ammar, 714 F.2d 238 (3rd Cir.), cert. den. 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); see also U.S. v. Yarbrough, 852 F.2d 1522 (9th Cir.), cert. den. 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988); U.S. v. Tarantino, 846 F.2d 1384, 269 U.S.App.D.C. 398 (D.C.Cir.), cert. den. 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988). We have examined each of the statements that defendant challenges and conclude that each was made in furtherance of either the conspiracy to rob Brown or to rob and kill Ruffner.
Defendant's final challenge to the statements of Pinnell is that their admission violates his confrontation rights under the Sixth Amendment to the United States Constitution or Article I, section 11, of the Oregon Constitution.
In State v. Campbell, 299 Or. 633, 705 P.2d 694 (1985), the court used a two-part test, adopted from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to determine if admission of hearsay satisfied the federal Confrontation Clause. First, the declarant must be unavailable to testify and, second, the out-of-court statement must have "adequate indicia of reliability." The reliability of the statement can be inferred, without more, in a case where the evidence falls within a firmly rooted hearsay exception. The same test is applicable under the state Confrontation Clause. State v. Moen, 309 Or. 45, 786 P.2d 111 (1990).
The trial court found that Pinnell was unavailable because he asserted his constitutional right not to testify. Defendant does not challenge that finding. See OEC 804.
In State v. Moen, supra, the court noted that whether a hearsay exception is "firmly rooted" does not turn on how long the rule has been accepted but rather how solidly it is grounded on considerations of reliability. Long use and acceptance of the exception weigh in favor of finding that it is firmly rooted. The exception, codified in OEC 801(4)(b)(E), appeared in Oregon statutes as early as 1862, Act of October 11 1862, § 696(6), and has been part of Oregon's jurisprudence since that time. See State v. Farber, 295 Or. 199, 666 P.2d 821 (1983); State v. Hinkle, 33 Or. 93, 54 P. 155 (1898).
The primary consideration regarding reliability of the evidence admitted under the rule is the rationale for the exception to the exclusion of hearsay. The co-conspirators' exception has been justified on the basis that the statements were made by the defendant's agent and should therefore be considered...
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