BUTTLER, P. J.
Defendant appeals his conviction for aggravated murder, assigning error to the trial court’s denial of his motion to suppress certain recorded conversations between him and others and the recorded statements of a co-conspirator (Wilson), and to the admission of the same statements of Wilson as admissions against penal interest. We affirm.
Defendant’s wife, Kathryn Martini-Lissy, was found dead in a room at the Valley River Inn in Eugene on June 6, 1984. She had been strangled during the previous evening. Her body had several small abrasions, and there was evidence that she had engaged in, or was forced to engage in, sexual intercourse. Her room showed no sign that her murderer had used force to gain entry. Her wallet was missing and there was no money in the room.
As the investigation of the murder proceeded, police suspicion began to focus on defendant. At trial, several persons testified that defendant had approached them and asked if they could help him find a “hit man.” Molly Griggs testified that defendant had told her that he wanted a woman strangled and raped. Later, she read a newspaper account of the killing and immediately suspected defendant. She contacted the police and agreed to help them in their investigation. At the request of the police, she made three telephone calls to defendant, which were recorded by the police with her consent. In those calls, Griggs told defendant that she suspected that he was involved in the murder and attempted to get money from him for the purpose of leaving town. Ultimately, defendant gave her money.
Tina LaPlante testified that defendant told her that he wanted a woman raped and murdered and offered her $500 if she could find a hit man. LaPlante contacted Dave Wilson, who told her that he was willing to do the job. She arranged a meeting between the two men. Defendant told LaPlante that Wilson would commit the murder. After the murder, LaPlante agreed to help the police in return for immunity from prosecution. She made two telephone calls to defendant, which the police recorded with her consent. On October 8,1984, she and defendant discussed the grand jury inquiry into the murder, as well as a scheme whereby Wilson would take all of the blame for the murder in exchange for $25,000, which was to come
from a life insurance policy on the victim under which defendant was the beneficiary. On October 12, the police recorded another telephone conversation between LaPlante and defendant, during which they discussed Wilson’s arrest and expressed the hope that Wilson would take full blame for the murder.
On October 11, before Wilson’s arrest, LaPlante agreed to carry a concealed microphone and to engage Wilson in conversation regarding the murder. During that conversation, Wilson asked her to arrange a meeting with defendant so that they could go over the details of their plan to have Wilson take the blame for the murder. He also described the murder to her in graphic detail.
Defendant’s motion to suppress the recorded conversations between defendant and Griggs, defendant and LaPlante and Wilson and LaPlante was denied, and the recordings were introduced in evidence at trial and played to the jury. Both Griggs and LaPlante testified for the state and described the circumstances of the conversations. Wilson invoked his right against self-incrimination and did not testify. Defendant contends on appeal that all of the recorded conversations should have been suppressed, because the telephone calls had been recorded without a court order and the recording of the conversation between LaPlante and Wilson was not properly authorized; he also contends that the admission of Wilson’s statements contained in the recording of his conversation with LaPlante was not permissible under the Oregon Evidence Code and that their admission violated his right to confront the witnesses against him.
Defendant first argues that police recording of his conversations with Griggs and LaPlante and between LaPlante and Wilson violate ORS 133.724, a part of the state wiretap statutory scheme that is based on the federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act, 18 USC §§ 2510 to 2520.
See State v. Pottle,
296 Or 274, 677 P2d 1 (1984);
State v. Tucker,
62 Or App 512, 518, 662 P2d 345,
rev den
295 Or 618 (1983). The state statute regulates the “interception of wire or oral communications.” ORS 133.724(1). “ ‘Intercept’ means the aural acquisition, by listening or recording, of the contents of any wire or oral communication * * ORS 133.721(4). “Oral communication” means
“any oral communication, other than a wire communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” ORS 133.721(6).
On its face, ORS 133.724 and its accompanying definitions, ORS 133.721, do not exempt situations where one party to a conversation consents to its being recorded. The federal statute does contain such an exemption. 18 USC 2511(2)(c). Defendant does not contend that the federal statute is unconstitutional. Neither does he challenge the constitutionality of the state statutory scheme if it is interpreted to include the same exemption for obtaining communications or conversations when one of the participants consents. The Oregon Supreme Court has held that there is no “interception” under ORS 133.724 when the recording is made by a party to the conversation.
State v. Underwood,
293 Or 389, 392, 648 P2d 847 (1982). Defendant, however, contends that
Underwood
does not control here, because a participant did not record the conversations personally. The ultimate question is whether the legislature intended to forbid the recording of conversations by a non-participant with the consent of one of the participants, unless authorized by a court order.
The history of Oregon’s statutory regulation of electronic surveillance indicates that it did not. The legislature first protected telecommunications from unrestrained surveillance in 1955. Or Laws 1955, ch 675 (later codified as ORS 165.540 and ORS 141.710 to ORS 141.740; in 1973, ORS 141.720
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BUTTLER, P. J.
Defendant appeals his conviction for aggravated murder, assigning error to the trial court’s denial of his motion to suppress certain recorded conversations between him and others and the recorded statements of a co-conspirator (Wilson), and to the admission of the same statements of Wilson as admissions against penal interest. We affirm.
Defendant’s wife, Kathryn Martini-Lissy, was found dead in a room at the Valley River Inn in Eugene on June 6, 1984. She had been strangled during the previous evening. Her body had several small abrasions, and there was evidence that she had engaged in, or was forced to engage in, sexual intercourse. Her room showed no sign that her murderer had used force to gain entry. Her wallet was missing and there was no money in the room.
As the investigation of the murder proceeded, police suspicion began to focus on defendant. At trial, several persons testified that defendant had approached them and asked if they could help him find a “hit man.” Molly Griggs testified that defendant had told her that he wanted a woman strangled and raped. Later, she read a newspaper account of the killing and immediately suspected defendant. She contacted the police and agreed to help them in their investigation. At the request of the police, she made three telephone calls to defendant, which were recorded by the police with her consent. In those calls, Griggs told defendant that she suspected that he was involved in the murder and attempted to get money from him for the purpose of leaving town. Ultimately, defendant gave her money.
Tina LaPlante testified that defendant told her that he wanted a woman raped and murdered and offered her $500 if she could find a hit man. LaPlante contacted Dave Wilson, who told her that he was willing to do the job. She arranged a meeting between the two men. Defendant told LaPlante that Wilson would commit the murder. After the murder, LaPlante agreed to help the police in return for immunity from prosecution. She made two telephone calls to defendant, which the police recorded with her consent. On October 8,1984, she and defendant discussed the grand jury inquiry into the murder, as well as a scheme whereby Wilson would take all of the blame for the murder in exchange for $25,000, which was to come
from a life insurance policy on the victim under which defendant was the beneficiary. On October 12, the police recorded another telephone conversation between LaPlante and defendant, during which they discussed Wilson’s arrest and expressed the hope that Wilson would take full blame for the murder.
On October 11, before Wilson’s arrest, LaPlante agreed to carry a concealed microphone and to engage Wilson in conversation regarding the murder. During that conversation, Wilson asked her to arrange a meeting with defendant so that they could go over the details of their plan to have Wilson take the blame for the murder. He also described the murder to her in graphic detail.
Defendant’s motion to suppress the recorded conversations between defendant and Griggs, defendant and LaPlante and Wilson and LaPlante was denied, and the recordings were introduced in evidence at trial and played to the jury. Both Griggs and LaPlante testified for the state and described the circumstances of the conversations. Wilson invoked his right against self-incrimination and did not testify. Defendant contends on appeal that all of the recorded conversations should have been suppressed, because the telephone calls had been recorded without a court order and the recording of the conversation between LaPlante and Wilson was not properly authorized; he also contends that the admission of Wilson’s statements contained in the recording of his conversation with LaPlante was not permissible under the Oregon Evidence Code and that their admission violated his right to confront the witnesses against him.
Defendant first argues that police recording of his conversations with Griggs and LaPlante and between LaPlante and Wilson violate ORS 133.724, a part of the state wiretap statutory scheme that is based on the federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act, 18 USC §§ 2510 to 2520.
See State v. Pottle,
296 Or 274, 677 P2d 1 (1984);
State v. Tucker,
62 Or App 512, 518, 662 P2d 345,
rev den
295 Or 618 (1983). The state statute regulates the “interception of wire or oral communications.” ORS 133.724(1). “ ‘Intercept’ means the aural acquisition, by listening or recording, of the contents of any wire or oral communication * * ORS 133.721(4). “Oral communication” means
“any oral communication, other than a wire communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” ORS 133.721(6).
On its face, ORS 133.724 and its accompanying definitions, ORS 133.721, do not exempt situations where one party to a conversation consents to its being recorded. The federal statute does contain such an exemption. 18 USC 2511(2)(c). Defendant does not contend that the federal statute is unconstitutional. Neither does he challenge the constitutionality of the state statutory scheme if it is interpreted to include the same exemption for obtaining communications or conversations when one of the participants consents. The Oregon Supreme Court has held that there is no “interception” under ORS 133.724 when the recording is made by a party to the conversation.
State v. Underwood,
293 Or 389, 392, 648 P2d 847 (1982). Defendant, however, contends that
Underwood
does not control here, because a participant did not record the conversations personally. The ultimate question is whether the legislature intended to forbid the recording of conversations by a non-participant with the consent of one of the participants, unless authorized by a court order.
The history of Oregon’s statutory regulation of electronic surveillance indicates that it did not. The legislature first protected telecommunications from unrestrained surveillance in 1955. Or Laws 1955, ch 675 (later codified as ORS 165.540 and ORS 141.710 to ORS 141.740; in 1973, ORS 141.720 to ORS 141.740 were renumbered as ORS 133.723 to ORS 133.727, the predecessors of the current statutory scheme). The original act prohibited the obtaining of any part of a communication without a court order pursuant to section 3 of the act, with certain exceptions, and provided criminal penalties for a violation. One exception was for a non-participant who obtains the contents of a telecommunication when “consent is given by at least one participant.” Or Laws 1955, ch 675, § 2(a) (later codified as ORS 165.540(1)(a)). A violation of that section was punishable by fine and imprisonment.
In 1979, the legislature revised the statutory scheme by enacting Or Laws 1979, ch 716, § 15(2) of which
{former
ORS 133.992(2)) provided:
“Except as provided in section 4 of this 1979 Act or as
provided in paragraph (a) of subsection (2) of ORS 165.540, any person who wilfully intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept any wire or oral communication where such person is not a party to the communication and where none of the parties to the communication has given prior consent to the interception, is guilty of a Class C felony.”
Under that law, it is reasonably clear that recording any wire or oral communication with the consent of one of the participants did not violate the act. During the same session, ORS 165.540 was amended in some respects, Or Laws 1979, ch 744, § 9, but subsection 1(a) remained unchanged. As a result, there was a duplication of that provision: ORS 133.992(2) and ORS 165.540(1)(a). In 1983, ORS 133.992 was amended, Or Laws 1983, ch 824, § 2, by deleting subsection 2 quoted above. ORS 165.540(1) (a) was left alone, but Oregon Laws 1983, chapter 824, section 3, containing almost identical language to that deleted from ORS 133.992 and to that which was left intact in ORS 165.540(1) (a) was enacted. Section 3 is codified as ORS 165.543, with a note that the legislature did not specify where it belonged in ORS. From a reading of Oregon Laws 1983, chapter 824, it appears to us that it was intended to be a part of ORS chapter 133.
Although it is not completely clear, we conclude that the legislature did not intend ORS 133.724 to prohibit the police from recording a telephone conversation when one participant has consented, which is consistent with the federal act. Defendant’s motion to suppress the recorded telephone conversations was properly denied.
Defendant also contends that the statements of Wilson that were made in his conversation with LaPlante and recorded by her should have been suppressed, because the court order allowing the recording of that conversation was obtained under ORS 133.726.
That statute requires a court
order “for the obtaining of any conversation * * * under ORS 165.540(5)(a) * * It is not clear how a “conversation” under that statute differs from an “oral communication” under ORS
133.724,
which imposes more stringent requirements on the obtaining of a court order and more conditions that must be a
part of the order.
See
notes 1 and 2,
supra.
Defendant’s argument is that the order should have complied with the requirements of ORS 133.724 in order to comply with the federal law. Even if he is correct in that contention, the federal law does
not require a court order when one of the participants consents, and ORS 165.540(5) (a) provides a more limited exception, applicable here, to the requirement for a court order:
“The prohibitions in paragraph (c) of subsection (1) of this section do not apply to a law enforcement officer who uses a listening or recording device, machine or apparatus pursuant to a court order issued under ORS 133.726 to obtain a conversation between the officer or someone under direct supervision of the officer and a person whom the officer has reasonable cause to believe has committed, or is engaged in committing, a felony, so long as any officer who records a conversation does not intentionally fail to record and preserve the conversation in its entirety. However, the court order shall not be necessary under this paragraph if exigent circumstances make it unreasonable to obtain the order.”
Furthermore, we have concluded that ORS 133.724 does not prohibit the obtaining of a conversation when one of the participant’s consents. Accordingly, the taped conversation between LaPlante and Wilson was not suppressible for the reasons argued by defendant.
Defendant also argues that, even if the taped conversation between LaPlante and Wilson was not suppressible, the statements that he made during that conversation were inadmissible, because they are hearsay (Wilson was not available for trial), and are not admissible under any exception to the hearsay rule; further, he contends that he was denied his right of confrontation by their admission in evidence.
The trial court ruled that part of Wilson’s statements to LaPlante were admissible under OEC 801(4)(b)(E)
as a coconspirator’s statement in furtherance of the conspiracy, and that the other parts were admissible under OEC 804(3) (c)
as statements against interest.
Because we conclude that all of the relevant statements in the conversation are admissible as statements against penal interest, we do not address whether the statements are also admissible under OEC 801(4)(b)(E).
Although Oregon did not recognize a statement against penal interest as an exception to the hearsay rule until the adoption of the evidence code in 1981, the Legislative Commentary to OEC 804(3)(c) makes it clear that Wilson’s statements to LaPlante fall within the rule:
“A statement admitting guilt and implicating another person, made while in custody, may well spring from a desire to curry favor with the authorities and hence fail to qualify as being against the declarant’s interest * * *. On the other hand, the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying.”
Wilson was unavailable to testify, because he had invoked his right against self-incrimination. OEC 804(1)(a). The entire conversation is replete with Wilson’s admissions of criminal involvement: a detailed description of how he murdered the victim, the attempt to avoid detection, the method by which defendant was to pay him for taking the blame and a planned meeting between him and defendant.
A reasonable person would not have made those statements, unless they were true. On its face, 804(3) (c) does not require corroborating evidence for statements that inculpate the accused, although
it specifically requires corroboration for exculpatory statements. Because sufficient corroborating evidence exists in this case, we need not decide whether they would be necessary when the evidence is offered to inculpate the accused.
Although Wilson’s statements are admissible under 804(3) (c), we also must consider whether defendant’s rights of confrontation under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution have been violated.
In interpreting Article I, section 11, independently of the Sixth Amendment, the Oregon Supreme Court has adopted the reasoning of the United States Supreme Court in examining confrontation issues.
State v. Campbell,
299 Or 633, 648, 705 P2d 694 (1985). The United States Supreme Court examined the relationship between the exceptions to the rule against hearsay and the Confrontation Clause in
Ohio v. Roberts,
448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980). It established a two-part test for determining whether the admission of an out-of-court statement by a witness who does not testify at trial violates the defendant’s right of confrontation. First, the declarant must be unavailable; second, the out-of-court statements must have “adequate indicia of reliability.”
Ohio v. Roberts, supra,
448 US at 66;
State v. Campbell, supra,
299 Or at 648. When Wilson asserted his right against self-incrimination, he became unavailable for defendant’s trial,
State v. Farber,
295 Or 199, 209, 666 P2d 821,
appeal dismissed
464 US 987 (1983); therefore, the first test is satisfied.
With respect to the second test, when the statement falls within a firmly rooted hearsay exception, reliability may be inferred. If the statement does not fall within such an exception, the evidence will be excluded, unless there are “particularized guarantees of trustworthiness.”
State v. Farber, supra,
295 Or at 208. We conclude that Wilson’s statements contained adequate guarantees of trustworthiness. In making that determination, we examine the circumstances
surrounding the statements. The fact that they were preserved on tape corroborated that they were actually made. They were made when Wilson was not in custody. He thought that he was speaking to one who was, or at least had been, an accomplice. Physical evidence, including the autopsy report, corroborated Wilson’s description of the murder. Defendant’s telephone conversations with LaPlante corroborated the statements regarding the plan for Wilson to assume full blame for the murder in return for the payment of money. All of the statements damaging to defendant were against Wilson’s penal interest and were accompanied by circumstances that guarantee trustworthiness. We hold that Wilson’s statements to LaPlante were admissible under OEC 804(3)(c).
Affirmed.