State v. Curran
| Decision Date | 06 February 1979 |
| Docket Number | No. 77-03-03718,77-03-03718 |
| Citation | 590 P.2d 268,38 Or.App. 351 |
| Parties | STATE of Oregon, Respondent, v. Thomas Jude CURRAN, Appellant. ; CA 10101. |
| Court | Oregon Court of Appeals |
Wm. H. Poole, Gresham, argued the cause for appellant. With him on the brief was Poole & Bartels, Gresham.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter H. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and TANZER, JJ.
Defendant appeals from his conviction of conspiracy to murder. See ORS 161.450. First he contends that his motion for judgment of acquittal should have been granted because there was insufficient corroboration of accomplice testimony to support a verdict of guilty.
The thrust of the state's case is that the defendant conspired with Linda Olsen to murder her husband, Philip Olsen, and that defendant participated by arranging for the employment by Linda Olsen of a hired killer, Buddy Moore. Linda Olsen testified as to her conspiracy with the defendant. We shall first set out the thrust of her testimony and then examine the corroborating evidence for sufficiency.
Linda Olsen testified that the Olsens own and operate a business for which she is the bookkeeper. Defendant had been employed as their attorney, but the relationship had recently soured because defendant insisted that Olsen pay him a disputed wagering debt.
In February, 1977, Philip Olsen beat Linda Olsen, breaking her jaw, after she learned of an affair he had with his receptionist. Her husband's mechanic, with whom she was having an affair, suggested that the defendant might help her find someone to have her husband beaten or killed. When she called the defendant to ask for "a phone number," she assumed that the defendant would think she wanted it so that she could have something done to her husband's receptionist and the receptionist's husband. Philip Olsen had earlier asked defendant to put him in touch with a killer for that purpose. Defendant gave her Buddy Moore's name and telephone number and told her not to call him immediately because defendant wished to talk to him first. Thereafter defendant called Linda Olsen and told her that he had talked to Buddy Moore and advised him that he should do whatever Linda Olsen wanted him to do. She then called Moore and they later met. Moore told her that when he had gone to see the defendant, defendant's first question was "is it her old man?" Moore added "Tom Curran isn't as dumb as you think he is." Moore and Linda Olsen then discussed the murder of Philip Olsen, for which Moore was to receive $5,000, half of it in advance.
Thereafter, Linda Olsen, having taken a self-development course, had a change of heart. She and her husband contacted the sheriff's office which commenced an investigation. She agreed to make telephone calls to Moore, Tucker and the defendant in order to permit the police to overhear and tape the conversations. She also arranged a meeting with Moore which the police were able to observe.
It is clear that the testimony of Linda Olsen, if believed, is sufficient to establish that she, the defendant and Buddy Moore conspired to murder Philip Olsen. Stated otherwise, the testimony is sufficient to establish that she, Moore and the defendant were accomplices. ORS 136.440(2), 161.155(2)(a) and (b). Next we consider whether her accomplice testimony was sufficiently corroborated.
The controlling statute is ORS 136.440(1), which provides:
This statute has been repeatedly construed and applied to mean that the corroborating evidence may be circumstantial in nature, that the corroboration need not be adequate by itself to support a conviction, and that the corroboration is sufficient if it constitutes "some evidence, however slight, tending to connect the defendant to the commission of the offense." State v. Schoen, 34 Or.App. 105, 110-11, 578 P.2d 420, 423 (1978); State v. Pfeiffer, 25 Or.App. 45, 540 P.2d 174 Rev. den. (1976); State v. Duncan, 248 Or. 288, 290, 434 P.2d 336 (1967); State v. Caldwell, 241 Or. 355, 360-61, 405 P.2d 847 (1965). In particular, convictions have been upheld based upon accomplice testimony corroborated by statements of the defendant. State v. Howard, 214 Or. 611, 617, 331 P.2d 1116 (1958); State v. Rathie, 101 Or. 339, 354, 199 P. 169, 200 P. 790 (1921). We now set out the corroborative testimony and evaluate it in light of the statutory standard and case law.
Philip Olsen testified that shortly before the events described above, he suspected two employees of breaking into his business and setting it afire. Because he was unable to get action from the fire marshal, he turned to defendant. He testified:
He went to another phone, and he picked it up, and he says, 'What was that, again?' And I told him. He says, 'No problem.'
From this testimony of Philip Olsen, the jury was entitled to infer that the defendant was willing and able to arrange for a killer.
The next piece of corroborative evidence is a tape recorded telephone call. After Linda Olsen went to the police, they tape recorded her telephone conversation with defendant:
From this conversation, the jury could infer that defendant knew that Linda Olsen was soon to meet with Buddy Moore and that he, defendant, willingly vouched for Buddy Moore's reliability. From the comments about a divorce, the jury could infer the defendant's knowledge that Philip Olsen was the intended subject of the arrangements between Linda Olsen and Buddy Moore and, further that the action to be arranged was something more effective than legal restraint.
The third piece of corroborative evidence resulted from a meeting between Linda Olsen and Buddy Moore on the evening of the telephone call. Linda Olsen took a room at the Portland Motor Hotel and called Buddy Moore, arranging to meet him in the bar. The meeting was observed by detectives who testified. At the meeting, Moore motioned to two men, gave them the key to Linda Olsen's room, and told them to "check it out." Linda Olsen gave Moore, pursuant to their earlier conversations, a photograph of Mr. Olsen, a written description of him and his automobile, and a down payment of $1,250, all of which was recovered from Moore's person when he was later arrested. Meanwhile, the two men who were with Moore were apprehended by the police in the course of searching Linda Olsen's room. They were armed with pistols.
Although the evidence of the transaction between Linda Olsen and Buddy Moore did not contain an express agreement to kill for monetary consideration, the facts are sufficient circumstantial evidence to allow the inference and that the man obtained by defendant was ready, willing and able to kill for hire.
Finally, the police questioned defendant later that evening. He acknowledged that he was well acquainted with the Olsens, Tucker and Moore as clients.
In sum, the accomplice, Linda Olsen, testified that she planned to murder her husband and that the defendant aided and abetted her by procuring for her a killer for hire. From evidence other than her...
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...617 (1965); State v. Parker, 225 Or. 88, 91-92, 356 P.2d 88 (1960); State v. Ryan, 47 Or. 338, 344, 82 P. 703 (1905); State v. Curran, 38 Or.App. 351, 590 P.2d 268, rev. den., 286 Or. 303 (1979). Therefore, the testimony concerning the out-of-court statements of Whitney was statutorily admi......
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