State v. Pottle

• Decision Date: 10 June 1983
• Docket Number: No. 20-567B,20-567B
• Citation: 62 Or.App. 545,662 P.2d 351
• Parties: STATE of Oregon, Respondent, v. Craig Steven POTTLE, Appellant. ; CA A22439.
• Court: Oregon Court of Appeals

Page 351

662 P.2d 351

62 Or.App. 545

STATE of Oregon, Respondent, v. Craig Steven POTTLE, Appellant.

No. 20-567B; CA A22439.

Court of Appeals of Oregon In Banc.

Argued and Submitted Oct. 13, 1982.

Resubmitted In Banc Jan. 10, 1983.

Decided April 13, 1983.

Reconsideration Denied June 10, 1983.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Stephen F. Peifer, 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.

GILLETTE, Presiding Judge.

Defendant appeals his conviction for murder, assigning as error five trial court rulings on the admissibility of certain types of evidence, some of which was obtained by electronic surveillance. We reverse and remand for a new trial.

In early December, 1980, Mindi Tucker left her husband, Chris, and moved in with Paula Mannhalter. About a week later, on December 14, Chris Tucker's body was discovered in the bedroom of his Washington County home. He had been stabbed five times. After several days of investigation, suspicion centered on Mindi and on defendant as a possible accomplice: the police suspected that defendant and Mindi had planned Chris' death so that they could split the proceeds of his life insurance policy. When the police attempted to interview Mindi after the murder, they found her evasive about defendant's identity, his whereabouts and the nature of her relationship with him. In order to "separate and define the roles" played by defendant and Mindi in Chris' murder, the Washington County Sheriff's Office, with the assistance of the Washington County District Attorney's office, obtained a court order authorizing a wiretap on the telephone in Paula Mannhalter's apartment. The wiretap was to last for 15 days, and interception was to be limited to Mindi's calls made or received on that telephone, pertaining to Chris' murder and distribution of the proceeds of his insurance policy. The court order authorizing the wiretap issued on December 17, and the wiretap was installed the following day. Despite the limiting language in the order, the officers who executed it were instructed by the district attorney to monitor and tape all incoming and outgoing telephone calls, except those between the apartment's occupants and their lawyers. The district attorney's office obtained two extensions of the wiretap order; the second was to expire on January 30, 1981, but the wiretap terminated on January 16, when the police arrested both defendant and Mindi. In all, 958 telephone calls were monitored and recorded while the wiretap was in operation.

By pretrial motions, defendant sought, inter alia, an order prohibiting the state from introducing "any statements made by any alleged co-conspirator of the defendant" and an order to suppress all evidence obtained by the state through the wiretap. After two omnibus hearings, the trial court ruled that (1) certain of Mindi's statements were admissible as declarations of a co-conspirator and (2) defendant was not entitled to suppression of the tapes of 15 telephone calls that the state intended to introduce, and did introduce, in evidence at his trial. ¹ Defendant was tried by jury and convicted. This appeal followed.

Defendant assigns as error the trial court's ruling denying his motion to suppress evidence obtained through a wiretap. The motion questioned the constitutionality of Oregon's wiretap statute and alleged numerous defects in the state's application for a wiretap order, the order itself and the sheriff's office's execution of the order. We need address only defendant's contention that the evidence should be suppressed because the investigating officers failed to "minimize" the interception, as the statute, ORS 133.724(5), requires. ²

This issue is controlled by State v. Tucker, 62 Or.App. 512, 662 P.2d 345 (decided this date), holding that interception of communications, where minimization would be possible but there is no attempt at minimization, is impermissible under ORS 133.724(5) and requires suppression of all the interceptions. Pp. ---- - ----, 662 P.2d 345. The only distinction between the present case and Tucker lies in the number of intercepted communications at issue: 15 of defendant's; 461 of Tucker's (including the 15 with defendant). Nonetheless, the interceptions--without any attempt to minimize--were equally improper as to both parties. Defendant has standing to seek suppression. See ORS 133.721; 133.735. The trial court should have granted his motion to suppress the 15 intercepted communications. ³

Because this case must be retried, one other alleged error requires discussion. Defendant assigns as error the trial court's ruling that evidence of certain statements made by Mindi was admissible under former ORS 41.900 ⁴ (repealed by Or.Laws 1981, ch. 892, § 98) as evidence of the declarations of a co-conspirator. He argues first that the state failed to satisfy the threshold requirement for admission, i.e., that the prosecution make a prima facie showing of conspiracy. We disagree.

At the omnibus hearing, the state introduced evidence of the following facts: As of December 8, Mindi and defendant were seeing each other socially; defendant threatened that night to hurt or kill Chris if he continued to bother Mindi; Mindi told defendant that "the only good thing about [Chris Tucker] is he has a good-sized life insurance policy and I am the beneficiary"; defendant replied that he would make himself and Mindi rich for half the insurance proceeds; Mindi said that she would "think about it"; Mindi and defendant then conversed privately in her bedroom for approximately five minutes; after the conference, defendant asked their companion, Jim Bennett, what he thought of the insurance scheme; Bennett said he thought that it was insane; defendant asked Mindi if she knew where Chris lived and she replied that she did and that she still had a key to his house; when defendant and Bennett later left Mindi's apartment, defendant again told Bennett that he would "do it * * * for half the insurance money"; defendant and Mindi stayed in contact over the next few days; Chris Tucker was murdered on December 12 or 13; the police found no sign of forced entry into Chris' house.

This court and the Oregon Supreme Court have recognized the difficulties inherent in proving the existence of conspiracies:

"The existence of a conspiracy may be difficult to prove because a conspiracy by its very nature requires secrecy and subturfuge. * * * [I]n many cases, conspiracy can be shown only by circumstantial evidence consisting of the declarations, acts and conduct of the conspirators. * * * " State v. Brom, 8 Or.App. 598, 604, 494 P.2d 434, rev. den. (1972).

See also State v. Ryan, 47 Or. 338, 344, 82 P. 703 (1905). As a result, we have repeatedly found "very slight evidence to be sufficient to permit a jury to find a conspiracy." State v. Parker, 225 Or. 88, 92, 356 P.2d 88 (1960); State v. Van Nostrand, 2 Or.App. 173, 465 P.2d 909 (1970). While the evidence of conspiracy outlined above may not be overwhelming, we believe that it easily satisfies the liberal prima facie requirement of Oregon law.

The second prong of defendant's argument is that, even if the state made a prima facie showing of conspiracy, evidence of Mindi's statements was inadmissible, because the statements did not "further" the conspiracy. In defendant's view, a statement furthers a conspiracy only if it "make[s] it more likely" that the goal of the conspiracy will be achieved.

We decline to apply this strict test to co-conspirator's statements for several reasons. First, the statute providing the authority for admission of co-conspirators declarations requires only that the statements "relate" to the conspiracy. ⁵ Former ORS 41.900. It is true that some of the cases defendant cites recite the rule in its common law formulation: e.g., " '[T]hose declarations only are admissible which are made by a conspirator during the existence of the conspiracy, and in furtherance of it.' " State v. Ryan, supra, 47 Or. at 343, 82 P. 703; see also State v. Weitzel, 157 Or. 334, 343, 69 P.2d 958 (1937). Those cases do not, however, explain what the term "furtherance" means, nor do they provide other guidance to a court attempting to apply the furtherance standard.

Moreover, the Oregon courts, in applying former ORS 41.900, have admitted evidence of co-conspirators' statements without requiring that the statements somehow further the goals of the conspiracy. State v. Farber, 56 Or.App. 351, 642 P.2d 668 (1982); State v. Greenwood, 22 Or.App. 545, 540 P.2d 389 (1975); State v. Davis, 19 Or.App. 446, 528 P.2d 117 (1974); State v. Garrison, 16 Or.App. 588, 519 P.2d 1295 (1974); State v. Chase, 15 Or.App. 369, 515 P.2d 1337 (1973); State v. Brom, supra; State v. Van Nostrand, supra; see also State v. Caseday, 58 Or. 429, 447, 115 P. 287 (1911). ⁶ We therefore agree with the state that, at the time of defendant's trial, the statements of his co-conspirator were admissible so long as they "related to" the conspiracy. ⁷ We now turn to the statements themselves.

1. The state introduced evidence that Mindi had told a friend, Brad Carmen, that her husband had been stabbed in bed and joked that she had to share the insurance money with the person who "bumped Chris off." This statement is a virtual description of the objective of the conspiracy; as such, it meets the "relating to" requirement.

2. An acquaintance of Mindi's, Becky Moser, testified that she had overheard Mindi (i) trying to telephone defendant the morning after Chris' body was discovered; (ii) tell defendant later that morning that she could not talk because there were people in the room; and (iii) tell her mother that she had lost the key to Chris' house. These statements can be viewed as evidence of Mindi's...