State v. Curran

590 P.2d 268, 38 Or. App. 351, 1979 Ore. App. LEXIS 2394
CourtCourt of Appeals of Oregon
DecidedFebruary 6, 1979
DocketNo. 77-03-03718, CA 10101
StatusPublished
Cited by3 cases

This text of 590 P.2d 268 (State v. Curran) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Curran, 590 P.2d 268, 38 Or. App. 351, 1979 Ore. App. LEXIS 2394 (Or. Ct. App. 1979).

Opinions

TANZER, J.

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.

SUFFICIENCY OF CORROBORATION OF ACCOMPLICE TESTIMONY

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’s Testimony

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 [354]*354and 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.

Corroborative Evidence

The controlling statute is ORS 136.440(1), which provides:

"A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.”

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 con viction, and that the corroboration is sufficient if it constitutes [355]*355"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 P2d 420 (1978); State v. Pfeiffer, 25 Or App 45, 540 P2d 174 rev den (1976); State v. Duncan, 248 Or 288, 290, 434 P2d 336 (1967); State v. Caldwell, 241 Or 355, 360-61, 405 P2d 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 P2d 1116 (1958); State v. Rathie, 101 Or 339, 354, 199 P 169 (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:

"A I called Mr. Curran, and I said, 'Tom,’ I says, 'can you have people eliminated?’ He says, 'Just a minute, let me get to another phone.’
"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.’
"Q What did you say next?
"A I said, TJm.’ I couldn’t really — I always thought it was kind of a joke, from what I heard in the past, but I realized that the guy was for real.
"Q Was there any further statement by Mr. Curran regarding the next step—
"A No.
"Q —to comply with your request?
"A No.
"Q When did you next talk to him, if you did, regarding your request?
"A I talked to him — I believe he called the office the following week, Monday or Tuesday, but I am not sure about that.
"Q What was the substance of that conversation?
"A He asked me what was going on, and I told him that the Police Department was taking care of the situation.”

[356]*356From 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:

"Def: Hello.
"L.O.: Hi, Tom?
"Def: Yeah.
"L.O.: This is Linda.
"Def: Hi.
"L.O.: Hi. What the hell is Tucker telling you?
"Def: Naakaaa, don’t worry about it.
"L.O.: Oh, sheee, he gets all shook up and he starts blowing hot air and then he is gonna blow the whole thing up.
"Def: Oh, don’t worry about it. Why don’t you just leave the guy:
"L.O.: Hey, because. There’s more involved in it than, you know, than you know or even Tucker knows.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Farber
642 P.2d 668 (Court of Appeals of Oregon, 1982)
State v. Ritchie
622 P.2d 768 (Court of Appeals of Oregon, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
590 P.2d 268, 38 Or. App. 351, 1979 Ore. App. LEXIS 2394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-curran-orctapp-1979.