State v. Farber

• Decision Date: 08 March 1982
• Docket Number: No. 80-9-30,80-9-30
• Citation: 642 P.2d 668,56 Or.App. 351
• Parties: STATE of Oregon, Respondent, v. Curtis L. FARBER, Appellant. ; CA 19380. . *
• Court: Oregon Court of Appeals

Page 668

642 P.2d 668

56 Or.App. 351

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

No. 80-9-30; CA 19380.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted July 22, 1981.

Resubmitted In Banc Jan. 6, 1982.

Decided March 8, 1982.

J. Michael Alexander, Salem, argued the cause for appellant. With him on the brief was Brown, Burt, Swanson & Lathen, Salem.

Rudolph S. Westerband, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. VAN HOOMISSEN, Judge.

Defendant appeals his jury conviction for murder. ¹ He contends the trial court erred (1) in admitting the hearsay statements of an alleged co-conspirator and (2) in denying his motion for judgment of acquittal. The dispositive issue is whether the hearsay statements of the alleged co-conspirator were so inherently prejudicial that they should not have been received in evidence, absent an opportunity to cross-examine the declarant.

The state's theory at trial was that defendant was selling cocaine supplied by the victim, Foss. Foss had supplied defendant with a large quantity of cocaine on credit. Defendant's drug sales were aborted when the cocaine and money were stolen from his car. Fearful of the potential repercussions from being unable to pay Foss, defendant hired the alleged co-conspirator, Whitney, to kill Foss. Defendant stipulated that Whitney killed Foss ² and admitted at trial that he had spoken with Whitney about the stolen cocaine and his problem with paying Foss. However, he denied hiring Whitney to kill Foss.

The evidence showed that the killing took place near defendant's house in Beavercreek. Whitney and his accomplice, Freer, had moved to the house with defendant one or two days earlier. On the day of the killing, Whitney went to town to purchase groceries. On his return, defendant left to make a telephone call, there being no phone at the house. Foss arrived while defendant was gone. He asked to see defendant. 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, Whitney began shooting at him. Freer, who was unloading groceries nearby, turned to see Whitney holding a gun and Foss on the ground. Whitney then fired again, and Freer joined in by firing a few shots in the direction of Foss' body. At trial, Freer testified that he and Whitney had no advance plan to shoot Foss at the Beavercreek house, but that they had discussed the possibility of locating Foss in Portland and either scaring or shooting him there.

Shortly after the shooting, defendant returned. He talked briefly with Whitney and then left. Whitney and Freer then 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 and finally dumped it in an incinerator at a Portland area dairy. Freer testified that a short time after disposing of the body, he and Whitney met defendant at a restaurant in Portland and that when Whitney told defendant that they had gotten 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 those events was admitted, the state moved to allow the admission of out-of-court statements allegedly made by Whitney to Freer and to Kerry Fouts, a woman who had been living with Whitney and Freer, under the co-conspirator exception to the hearsay rule. ORS 41.900(6) (repealed effective January 1, 1982, by Oregon Laws 1981, ch. 892, § 98). ³ Defendant objected on the grounds that (1) Whitney's out-of-court statements were hearsay, (2) a prima facie showing of a conspiracy had not been made and therefore the co-conspirator exception to the hearsay rule could not be invoked, and (3) the admission of Whitney's hearsay statements under ORS 41.900(6) violated his confrontation rights guaranteed by the state and federal constitutions. ⁴

The trial court overruled defendant's objection and allowed further testimony by Freer:

"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. He and Mark I believe you said talked and you couldn't hear what they said?

"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 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. * * * "

The trial court also permitted the state to recall Fouts as a witness. She then testified:

"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. * * * "

Whitney's statements were undoubtedly hearsay. But that finding does not end our inquiry. It is well established that some hearsay may be admissible in a criminal case. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); see also State v. Rawls, 252 Or. 556, 451 P.2d 127 (1969); State v. Kendrick, 239 Or. 512, 398 P.2d 471 (1965); State v. Reyes, 209 Or. 595, 308 P.2d 182 (1957). The state contends that this hearsay was admissible under ORS 41.900(6). We must, therefore, determine whether the state laid a proper foundation under ORS 41.900(6), i.e., did the state make a prima facie case of conspiracy before offering Whitney's hearsay statements.

We agree with the trial court that a prima facie showing of defendant's involvement in a conspiracy to kill Foss was made prior to the challenged testimony of Freer and Fouts. Much of the evidence was circumstantial, but the requisite prima facie case was shown. State v. Blackwell, 241 Or. 528, 407 P.2d 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 admissible. ORS 41.900(6); see State v. Davis, 19 Or.App. 446, 449, 528 P.2d 117 (1974); State v. Garrison, 16 Or.App. 588, 603, 519 P.2d 1295 (1974); State v. Capitan, 8 Or.App. 582, 592, 494 P.2d 443 (1972).

Defendant next contends that the admission of Whitney's out-of-court statements violated his confrontation rights. The constitutionality of ORS 41.900(6), as applied in this criminal case, is therefore in issue.

The United States Supreme Court recently considered the relationship between the federal Confrontation Clause and the rule against hearsay in Ohio v. Roberts, supra. In Roberts, while the Supreme Court rejected the contention that all hearsay must be excluded in the face of a confrontation objection, it said:

"The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that 'a primary interest secured by (the clause) is the right of cross-examination.' In short, the Clause envisions 'a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.'

"These means of testing accuracy are so important that the absence of proper confrontation at trial 'calls into question the ultimate "integrity of the fact-finding process. " ' " (Footnotes and citations omitted.) 448 U.S. at 63-64, 100 S.Ct. at 2537-2538. ⁵

Roberts instructs that we must first determine whether it is necessary ⁶ to use the proffered hearsay evidence, and, if so, whether it is "marked with such trustworthiness that 'there is...