State v. Cunningham

• Decision Date: 06 February 2002
• Citation: 40 P.3d 1065,179 Or. App. 359
• Parties: STATE of Oregon, Respondent, v. Bradly Morris CUNNINGHAM, Sr., Appellant.
• Court: Oregon Court of Appeals

40 P.3d 1065

179 Or. App. 359

STATE of Oregon, Respondent, v. Bradly Morris CUNNINGHAM, Sr., Appellant.

C930434CR; A87792

Court of Appeals of Oregon.

Argued and Submitted August 7, 2001.

Decided February 6, 2002.

Kathleen M. Correll, Portland, argued the cause for appellant. With her on the briefs was Michael D. Curtis.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and EDMONDS and WOLLHEIM, Judges.

HASELTON, P.J.

Defendant appeals his conviction for murder. ORS 163.115. On appeal, he raises 32 assignments of error. We conclude that one of defendant's assignments of error, concerning the admission of hearsay evidence, constitutes reversible error. We do not reach defendant's other assignments of error.¹ We reverse and remand.

On appeal from a judgment of conviction, we view the evidence presented at trial in the light most favorable to the state. State v. Charboneau, 323 Or. 38, 40-41, 913 P.2d 308 (1996).² Because the hearsay statements at issue in the dispositive assignment of error are central to the case against defendant, we provide, in particular, a detailed statement of the facts relating to those statements.

The victim, defendant's estranged wife Cheryl Keeton Cunningham, was murdered on September 21, 1986. Defendant and the victim met and married in Seattle in the late 1970s, when she was a law student and he was a banker. After her graduation, she joined a Seattle law firm. Shortly thereafter, defendant became involved in a large real estate development project in Texas and, in the early 1980s, the family moved to Texas. The project encountered difficulties, and the family filed for bankruptcy as a result. The victim subsequently returned to Seattle to work for the same law firm, while defendant remained in Texas. In 1985, the victim transferred to the firm's Portland office, and defendant also moved to Oregon and went to work for a savings and loan association. Defendant and the victim purchased a home in Gresham. However, the marriage was deteriorating, and defendant eventually moved out of the family home.

In February 1986, the victim filed for divorce. The divorce proceeding was scheduled to go to trial in October 1986. In the period between when the victim filed for divorce and her murder, the interactions between the victim and defendant became increasingly acrimonious. Both parties sought custody of their three sons: Tyler, aged six, Travis, aged four, and Spencer, aged two. There were discussions of joint custody arrangements, and the parties agreed to an interim visitation schedule under which defendant would pick up the children on Friday evenings and return them to the victim's home on Sunday evenings.

In the spring of 1986, a psychologist performed a custody evaluation. He observed that defendant made contradictory statements, claiming to be the children's primary parent but also claiming that he worked very long hours at his job and admitting that he had not even lived in the same state with the children for a significant period of time. Defendant also told the psychologist that the victim did not like, and could not handle, the children. Defendant confided that he believed that his mother-in-law, the victim's mother, was planning to poison him and kidnap the children. For her part, the victim told the psychologist that defendant was harsh and inflexible with the children. The psychologist observed that, at a joint meeting with both defendant and the victim, the victim seemed intimidated and did not want to be alone with defendant, while defendant was "aggressive" and "bombastic." The psychologist concluded that the children seemed well-adjusted and happy with their mother and that the victim was the more appropriate custodian of the children because the children's needs were central to her life, whereas defendant had many other pursuits in which he was engaged.

In the summer of 1986, the victim consulted with a bankruptcy attorney with whom she worked because she was concerned that defendant had some assets that had not been disclosed in the couple's pending bankruptcy. The attorney told the victim about penalties that could result from a failure to disclose assets in a bankruptcy proceeding. The victim seemed anxious and fearful of retribution from defendant if she disclosed the assets.

Throughout the period from the divorce filing until the murder, defendant and the victim had numerous disputes about the children. In the spring of 1986, defendant and the victim had a loud fight at the children's preschool during which defendant became quite agitated. They also vehemently disagreed over where their oldest son, Tyler, would attend school in the fall. While the victim wanted to enroll Tyler in a school near her home, defendant resisted—and instructed the preschool not to forward Tyler's records to that school. When school began on September 2, the victim brought a friend with her to the school to try to keep defendant from interfering with the enrollment process. When defendant arrived at the school, he confronted the victim angrily, yelling at her. They never resolved their differences about Tyler's schooling.

On September 16, 1986, depositions were taken in the divorce proceeding. The victim's attorney tried to question defendant about the couple's taxes, which had not been filed for several years, and about the property that the victim believed had not been properly disclosed to the bankruptcy court. Defendant gave evasive answers. After the deposition, defendant was highly upset, telling friends that the victim had lied and that she was not a fit mother. He told one of his friends: "I'll kill Cheryl." Defendant's girlfriend, Hermens, testified that defendant was agitated after the deposition, and that he called the victim and told her that she would pay for lying at the deposition. The victim's brother overheard a telephone conversation between defendant and the victim on the evening of September 16 during which defendant called the victim a "dumb cunt" and stated: "I'll get you."

On September 18, 1986, the divorce court denied defendant's request for a lengthy set-over of the divorce proceeding. The trial was set over only one week.

On Friday, September 19, two days before the victim's death, defendant and Hermens came to the victim's house in the West Slope area of southwest Portland to pick up the children for weekend visitation. Defendant was irritated and accused the victim of having lied. He also told the victim about his suspicions of being poisoned. Later, defendant made a statement to Hermens to the effect that, "when somebody killed one parent but the other parent wasn't convicted of something, being better off for children."

The children spent the weekend at defendant's apartment in the Madison Towers complex in southwest Portland. On Saturday, September 20, defendant took the children to a soccer game in which Tyler was playing. The victim also went to the game. When defendant saw the victim there, he became upset and took the children to the other side of the field because he perceived the victim's presence as an intrusion on his time with the children. The victim, who was also distraught because she couldn't speak with her children, told a friend that defendant did not want her at the game and that he had threatened her.

The victim was murdered some time between 8:00 p.m. and 8:30 p.m. on September 21. Earlier that evening, defendant, Hermens and the children went out for an early dinner because Hermens was scheduled to work that night. After dinner, defendant borrowed Hermens's car, saying that his vehicle was having some problems. He left Hermens at the hospital where she worked at about 6:40 p.m., saying that he had forgotten one of the children's blankets and that he was going back to the apartment before taking the children home to their mother. Defendant told Hermens that he would return to the hospital to visit her after he took the children home.

At 7:11 p.m., the victim made a telephone call from her home to her mother's home in Washington state. The victim told her mother that defendant had called to tell her that he wasn't able to return the children to her at 7:00 as arranged because he was having some gas problems with his vehicle. He would not tell the victim where he was. The victim was "hysterical" when she called her mother and suggested that she might call the police. From the victim's recounting of her conversation with defendant, her mother was under the impression that the children were out somewhere in a broken-down car.

At around 7:30 p.m., the victim also spoke on the telephone with her brother, who lived with her and the children but was away from home that evening. She was upset and crying when she talked to him. She told him that defendant had not brought the children home yet and that he claimed to be having car trouble, which she described as a "typical maneuver."

At 7:59 p.m., the victim again called her mother. At trial, her mother recounted that conversation:

"[S]he said, `Mother, I want you to remember this. I'm going down to the Mobil station by the IGA store, ah, down the hill.' She said, `And I'm going to meet Brad and pick up the children. And I want you to remember this.' She was real stern about it."

The victim's mother called her boyfriend over to the telephone and had the victim repeat the information so that he could hear it as well. Her mother suggested that the victim should not go alone to meet defendant, but the victim replied: "No, I cannot leave the kids in the car any longer. I have to go pick up my kids." The victim told her mother that she would call back when she returned.

During the course of the divorce, the victim regularly made contemporaneous notes of any conversations she had with defendant. After her death, notations in the...