State v. Farber

• Decision Date: 20 October 1982
• Docket Number: No. 80-9-30,80-9-30
• Citation: 59 Or.App. 725,652 P.2d 372
• Parties: STATE of Oregon, Respondent, v. Curtis L. FARBER, Appellant. ; CA 19380.
• Court: Oregon Court of Appeals

Page 372

652 P.2d 372

59 Or.App. 725

STATE of Oregon, Respondent, v. Curtis L. FARBER, Appellant.

No. 80-9-30; CA 19380.

Court of Appeals of Oregon,

In Banc.

Oct. 20, 1982.

Reconsideration Denied Dec. 10, 1982.

Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem, for petition.

THORNTON, Judge.

The state petitions for reconsideration of our former opinion in this case. State v. Farber, 56 Or.App. 351, 642 P.2d 668 (1982). We grant the petition and withdraw the former opinion.

In our prior opinion we held that the admission in evidence of certain statements made by an alleged co-conspirator was prejudicial error, and we therefore reversed defendant's conviction and remanded the case for a new trial. We now reverse our ruling on that pivotal issue. In order to make our ruling on reconsideration clear, we find it necessary to repeat significant portions of our former opinion.

Defendant appeals his jury conviction for murder ¹ for his involvement in the shooting death of Harry Foss, Jr. He assigns as error the admission of certain inculpatory statements concerning him made by an alleged co-conspirator. He contends that no conspiracy was established to qualify the hearsay statements under the "co-conspirator rule" and that, alternatively, even if there was a conspiracy established, the admission of the inculpatory statements violated his confrontation rights under Article I, section 11 of the Oregon Constitution ² and the Sixth Amendment of the United States Constitution. ³ Defendant also assigns as error the denial of his motion for acquittal. For the following reasons, we now affirm the defendant's conviction but remand for imposition of a new sentence.

The state's theory at trial was that defendant was dealing in cocaine supplied by the victim. Near the time of his death, Foss "fronted" a large quantity of cocaine ⁴ to defendant for him to sell at a profit and in turn to pay Foss for the cocaine with the proceeds. The drug transaction was aborted when a large portion of the cocaine was stolen from defendant's car. Fearful of the potential repercussions of being unable to pay Foss for the cocaine, defendant arranged with a friend of his, Whitney, to kill Foss.

Defendant stipulated at trial that Foss was shot by Whitney. Defendant admitted that he spoke with Whitney about the stolen cocaine and the problems with Foss, but he denied hiring Whitney to do the killing.

The evidence showed that the killing took place in front of defendant's house in a rural community known as Beavercreek. Whitney and Kevin Freer had moved to the house with defendant one or two days before the shooting, apparently for security reasons. On the day of the shooting, Whitney went to town to purchase some groceries. On his return, defendant left to make a phone call, there being no phone at the Beavercreek residence. Foss arrived while defendant was gone. He asked to see defendant, but Whitney told him that defendant was gone and would not be back until later that evening. Foss then went into the nearby woods to urinate. As Foss returned to his car to leave, Whitney began firing at him. Freer, who was still unloading groceries at the time, turned to see Foss on the ground and Whitney holding the gun. Whitney then fired a number of additional rounds with Freer joining in. Freer testified that he and Whitney had no advance plan to shoot Foss at the Beavercreek residence but that he and Whitney had discussed the possibility of locating Foss in Portland and either scaring him or shooting him.

Defendant returned shortly after the shooting, talked briefly with Whitney and then left. Whitney and Freer covered the body and loaded it into the trunk of Whitney's car. The two spent the next day looking for a place to dispose of the body. They finally decided to place it in an incinerator at a local dairy.

Freer testified that a short time after disposing of the body he and Whitney met defendant at a restaurant in Portland. At that time Whitney told defendant that they had got rid of Foss' body. Defendant responded, "Good, I don't have to worry about that anymore." Freer left the table for a short time, then returned. As they left the restaurant, Freer noticed that Whitney had a large wad of bills, something Freer said Whitney had not possessed before. Defendant denied that this meeting took place, and testified that he was bicycling that day with a friend.

After evidence concerning the above events was admitted, the state moved to allow the admission of hearsay statements of Whitney under the co-conspirator exception to the hearsay rule. Over defendant's objection, the court ruled that a prima facie case of conspiracy had been established and allowed further testimony by Freer and Kerry Fouts, a 23-year-old woman who was living with Whitney and Freer in defendant's rented home.

Freer was called first and testified in relevant part:

"Q. Did Mark talk about how he was going to kill Skip Foss?

"A. Yes, he did.

"Q. What did he say to you?

"A. Well, he threw out an idea of just going right to his front door and using his pistol at the front door or else from a distance with his rifle.

"Q. Now, after you had been at Mark's--the defendant's trailer at Beaver Creek for a period of time and after Skip had been shot and his body placed in the trunk of the Cadillac, I believe you said that the defendant came out right after that?

"A. That's correct.

"Q. Did you talk to Mark later about what he had talked with Skip--with the defendant about?

"A. Yes, I did.

"Q. What did Mark tell you?

"A. He told me that he had told Curt that his man had came up there and that he was taken care of and that Curt had told him he would meet him somewhere in town later in the week. * * *

"Q. Then you got to Carrows [Restaurant] and I believe you already described what happened there. As you were leaving Carrows I believe you also described some money that you saw Mark Whitney take out of his pocket and put into his wallet?

"A. Yes.

"Q. Later after you saw that or any time after you saw that, did you talk with Mark about the money?

"A. Yes, I did.

"Q. What did you and he talk about?

"A. Well, he had told me that he had gotten it from Curt and his debt was all cancelled. * * * "

Fouts was then recalled to supplement her earlier testimony:

"Q. * * * Yes. During these conversations did there come a time when Mark told you what the defendant had told him and what he had told the defendant, what they had talked about with respect to his man, what they were going to do if anything?

"A. Mark had told me and Kevin both that he was--that Curt was going to pay him $14,000 to have his man killed. To knock him off is how he said it.

"Q. And the $14,000 figure came from Mark?

"A. Yes it did. * * *

"Q. * * * Did you and Mark have a conversation?

"A. Yeah, we talked for a long time.

"Q. What did Mark tell you?

"A. He told me everything was a go ahead and that he had got the contract from Curt and that they were going to be real busy. And talked about how they were going to stake out Curt's man and stuff like that. * * * "

Defendant first argues that the state's case against him was in truth one for conspiracy and that he should have been charged as such. Defendant was instead charged with murder for his involvement. Defendant acknowledges the long-standing rule followed by Oregon that the state is not required to charge conspiracy to commit murder, but may instead charge murder. State v. Gardner, 225 Or. 376, 383-85, 358 P.2d 557 (1961); State v. Weitzel, 157 Or. 334, 69 P.2d 958 (1937); State v. Johnston, 143 Or. 395, 22 P.2d 879 (1933). He argues that, when the facts show a conspiracy, the defendant should be charged under the specific conspiracy statute, a Class A Felony, rather than murder, with its mandatory life sentence. ORS 161.485 ⁵ is a grant of authority to the state. It permits, but does not require, the state to include multiple counts charging both substantive and inchoate offenses. Defendant properly was charged with murder.

Defendant next argues that, even if he was properly charged with murder, the statements of Freer and Fouts should not have been admitted, because they constituted inadmissible hearsay. Defendant maintains that there was insufficient proof of a prima facie showing of conspiracy before the statements were allowed.

The long-standing co-conspirator exception to the hearsay rule, codified in former ORS 41.900(6), ⁶ provides:

"Evidence may be given of the following facts:

" * * * * *

"(6) After proof of a conspiracy, the declarations or acts of a conspirator against his co-conspirator relating to the conspiracy."

Conspiracies are by their nature usually secret agreements, and the courts have recognized that they must often be proven through circumstantial evidence establishing an " * * * agreement between the parties to effect or accomplish an unlawful purpose." State v. Ryan, 47 Or. 338, 344, 82 P. 703 (1905); see also State v. Van Nostrand, 2 Or.App. 173, 178, 465 P.2d 909, rev den (1970). Direct proof is often unavailable to show a conspiracy. As the Supreme Court has explained:

"A conspiracy may be proven by showing the declarations, acts and conduct of the conspirators. It is seldom possible to establish a specific understanding by direct agreement between the parties to effect or accomplish an unlawful purpose. Usually, therefore, the evidence must be necessarily circumstantial in character, and will be sufficient, if it leads to the conviction that such a combination in fact existed. Thus, if it be shown that the conspirators were apparently working to the same purpose,--that is, one performing one part and another another,--each tending to the attainment of the same object, so that in the end there was apparent concert of action, whether they were acting in the immediate presence of each other or not, it would afford proof of a conspiracy to effectuate...