THE PEOPLE, Plaintiff and Respondent, v. WARREN O. SALING, Defendant and Appellant.
Crim. No. 15222
In Bank.
Sept. 5, 1972.
7 Cal.3d 844
Michael Korn, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and William V. Ballough, Deputy Attorney General, for Plaintiff and Respondent.
WRIGHT, C. J.—Defendant Warren O. Saling was charged jointly with Sean J. Murphy by indictment for conspiracy to commit first degree murder (
Defendant contends, inter alia, that (1) statements made by one of his coconspirators three days after the charged murder and (2) recordings of conversations between other coconspirators made almost three and one-half weeks subsequent to the charged murder were erroneously and prejudicially received at trial. The errors are predicated on defendant‘s contention that the extrajudicial statements constituted inadmissible hearsay which did not come within the coconspirators exception. (
On August 22, 1969 at approximately 10 p.m., William Mulhearn was traveling through Lopez Canyon in Los Angeles County and was “waved down” by Sean J. Murphy.3 Murphy told him that his wife, who was lying near the Murphy automobile, had been hurt. He asked Mulhearn to call the police. When Deputy Sheriff Barrett Fitzgerald arrived at Lopez Canyon a few hours later to investigate the incident he found the dead body of Catherine Murphy, a pool of blood behind a nearby bush and drag marks
Later on the morning of August 23 Murphy related to Fitzgerald that he and his wife had been driving through Lopez Canyon after failing to locate a house trailer which, according to Murphy, was for sale. They were stopped by a man who claimed that his vehicle was out of gas. Murphy agreed to drive him and his friend to a service station. After traveling only a short distance Murphy was told, “This is a stickup,” and was ordered to drive off the road and stop the car. The Murphys were instructed to get out of their automobile. Shortly thereafter, Murphy continued, he was hit on the head and rendered unconscious and his wife apparently received five fatal stab wounds. When he regained consciousness he heard his wife moaning, and he dragged her from behind a bush to the point where she was later seen by Mulhearn and Fitzgerald.
Sometime after August 29, 1969, Jerry Carnes was arrested for conspiracy in the homicide of Catherine Murphy. Following his release from custody, apparently for the purpose of assisting investigating officers, Carnes allowed Fitzgerald to affix an induction coil to his telephone and to record a conversation between him and Murphy on September 18. The following day Carnes’ brother, Richard, authorized Deputy Sheriff William Allen to conceal a transmitting device in Richard‘s clothing and to record a conversation between him, his brother and Murphy. Both recordings contain incriminating statements which seriously implicate defendant in a conspiracy entered into upon Murphy‘s solicitation to kill the victim.
Jerry Carnes was granted immunity from prosecution and testified that sometime in the latter part of July 1969 Murphy telephoned him and asked whether he wanted to make some money by “roughing up” a person who owed Murphy money. Carnes replied that he did not do that type of thing but would ask among the people he knew. He eventually went to the home of defendant whom he also knew as “Dusty” and defendant agreed to do the job. About two hours later Carnes brought Murphy to defendant‘s house to discuss the amount of payment and how the plan was to be carried out. Carnes testified that he did not pay close attention to the conversation but remembered that $300 or $500 was to be paid in advance. Murphy later disclosed the plan to Carnes. Murphy was to drive the victim into Big Tujunga Canyon and, on the way out, pretend to have a flat tire. He would stop the car on the side of the pavement and arrange to have the victim remove the lug nuts from the wheel nearest the center of the road while Murphy removed a spare tire from the trunk. Defendant would then drive by and “clip” the victim while “he” was loosening the lug nuts. Carnes
On the evening of the homicide Carnes went to Big Tujunga Canyon about 7:30 p.m. and parked at a predesignated spot. Approximately 45 minutes later he saw Murphy drive into the canyon with a woman in the car. Carnes stayed there for a short time while Murphy, waiting for defendant, drove back and forth. Defendant did not appear. Carnes left the canyon about 8:30 p.m. and shortly thereafter recognized defendant and Robert “Pokey” Jurgenson driving toward the canyon in an automobile.4 They stopped their cars and talked briefly. Defendant said that he was late because the police had detained him and indicated that he would contact Murphy later. Nothing more was said concerning the plan. Carnes left and thereafter did not see defendant. Mrs. Murphy was killed that evening.5
Carnes learned of the victim‘s death three days after the homicide and visited defendant at his home. Jurgenson, who was also present when Carnes arrived, stepped outside to talk with Carnes. In response to Carnes’ statement that he thought there was only supposed to have been a “rough up,” Jurgenson replied that the plan was again discussed after their initial meeting and he and defendant discovered for the first time that the victim was to be Murphy‘s wife. Jurgenson also said that after he and defendant saw Carnes near Big Tujunga Canyon they drove to Lopez Canyon. They flagged down Murphy‘s car in the canyon and informed him that their car was out of gas. Murphy agreed to drive them to a service station. After a short distance had been traveled they told Murphy that he was being robbed and instructed him to drive down the road, pull over and get out of the car. Jurgenson continued, stating that Murphy and his wife left the car and were forced off to the side of the road. Murphy was then hit on the back of the head and his wife was stabbed “two or three times.” Defendant was present during a portion of this conversation and, while he was there, told Carnes to “keep his mouth shut.”6
Jerry Carnes’ account of the foregoing events is corroborated in a number of significant respects. A witness testified that Carnes came to her home about seven days prior to the murder and told her that Murphy was looking for him to arrange for “roughing up” someone, but that Carnes “did not want any part of it.” It also appears that defendant‘s common law wife complained to Deputy Sheriff Fitzgerald that it was “too bad [Carnes] had to get away with his part in this deal.” Richard Carnes testified that he was acquainted with Jurgenson and defendant—and knew the latter as “Dusty“—and that at least on one occasion had seen his brother, defendant and Murphy together. On a different occasion he overheard “something about getting somebody roughed up.” Richard further testified that after the homicide Murphy called the cycle shop where Richard was an employee and told him that he had some money for Jerry and defendant. Richard arranged to accept, and in fact did accept, $700 for them. He later gave $200 of the money to Jerry and the remaining $500 to defendant. There was also testimony by a babysitter in defendant‘s household that she had overheard defendant discuss with his common law wife a payoff of $300 which defendant was to have received from someone. The babysitter further testified that defendant and Jurgenson asked her to provide an alibi for them for the night of the homicide.
Additionally, defendant was connected with a particular maroon Pontiac automobile which, according to a criminalist, was at the scene of the homicide. The vehicle was loaned to defendant by a former used car dealer about the middle of August 1969. A neighbor of Jurgenson testified that he had seen the vehicle at the Jurgenson home on a few occasions and had seen defendant come out of Jurgenson‘s house at least once. The car was returned to the driveway at the owner‘s residence on the night of the killing. The criminalist testified that a tire track near the scene of the murder had many characteristics similar to a tire on the particular maroon Pontiac.
There was, finally, testimony which tended to establish that Murphy was motivated to bring about his wife‘s death because he would receive proceeds from various insurance policies which he had arranged to be placed on her life. On November 1, 1968, applications were purportedly made by the Murphys for insurance policies on their respective lives. In January 1969 a $13,815 policy was issued on the life of Mrs. Murphy with Mr. Murphy as the primary beneficiary. A policy insuring the life of Mr. Murphy was also issued but was returned to the company in February 1969 after
On November 8, 1968, a $10,000 policy with a double indemnity clause was issued by a second company on the life of Mrs. Murphy. Mr. Murphy was named as the primary beneficiary. The same company, on July 17, 1963, had also issued a $5,000 family policy with double indemnity provisions to the Murphys (Catherine Murphy‘s single indemnity being $1,250). A third company carried the Murphy‘s automobile insurance obtained in October 1967 which provided for a $15,000 indemnity in the event either insured was killed by a hit-and-run driver.
Admissibility of the Conversation Between Jerry Carnes and Robert “Pokey” Jurgenson
Defendant first contends that the trial court prejudicially erred in allowing Jerry Carnes to relate the conversation he had with Jurgenson outside defendant‘s house three days after the homicide. He argues that the statements were hearsay (
It has long been the law in this state that a conspirator‘s statements are admissible against his coconspirator only when made during the conspiracy and in furtherance thereof. (
Clearly the money offered by Murphy for killing his wife motivated defendant and Jerry Carnes to participate in the plan, and the transfer of the money was one of its main objectives as far as defendant and Carnes were concerned. Since payment to either defendant or Carnes had not yet occurred by the time of the conversation between Carnes and Jurgenson only three days after the murder, Jurgenson‘s statements to Carnes were admissible as being made during the conspiracy.8
Admissibility of the Recordings Made on September 18 and 19
Defendant‘s next assignment of claimed prejudicial error concerns the trial court‘s admission of the hearsay recordings made on September 18 and 19, almost three and one-half weeks after the murder. He contends that the recordings did not fall within the ambit of the coconspirators exception to the hearsay rule since they neither were made during nor in furtherance of the conspiracy. We agree.
The statements contained in the recordings were clearly made not only after Catherine Murphy had been killed but also after payment had been made to defendant and Jerry Carnes. It does not appear that the statements were otherwise made during any activity in pursuance of any significant objective of the conspiracy. That the statements in the recordings concerned the method by which detection and punishment were to be avoided is of no moment. In Krulewitch v. United States, supra, 336 U.S. 440, the Supreme Court rejected, as a further breach of the general rule against the admission of hearsay evidence, the government‘s argument that “even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective.” (Id. at p. 443 [93 L.Ed. at p. 794].) Mr. Justice Jackson, concurring in the judgment, explained the illogic of the government‘s position: “I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. [¶] It is difficult to see any logical limit to the ‘implied conspiracy,’ either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen
The People make an alternative argument—one with which the trial court agreed—that the recorded conversations were admissible as being made during a conspiracy to collect the proceeds of the insurance policies on the life of Catherine Murphy. The People contend that since such a conspiracy did not end until the insurance proceeds were paid, the statements made by a coconspirator prior to that time were admissible.
Before evidence of the acts and declarations of an alleged coconspirator is admissible against the other conspirators prima facie evidence of the conspiracy must be proved. (
Holding that the hearsay recordings were erroneously admitted as not falling within any exception to the hearsay rule does not necessarily warrant reversal. It must also be evident that “‘after an examination of the entire cause, including the evidence,’ . . . it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) As stated above, we have read the entire record, including the transcripts of the recordings. Although the competent evidence of defendant‘s guilt is substantial, it is not compelling. Jerry Carnes testified that defendant conspired to “rough up” a victim who might have been Catherine Murphy. Defendant was seen in the general vicinity of the crime with Jurgenson who later stated that he and defendant had killed the victim in a manner consistent with the physical evidence of her death. Defendant was also connected with the killing by evidence that placed his automobile at the scene of the crime; that Murphy transferred money to him; and that he attempted to arrange for an alibi at the time of the killing.
The recordings, on the other hand, are extremely damaging to defendant. They compel the inference, particularly when considered with the competent evidence, that Murphy initiated a conspiracy involving Robert “Pokey” Jurgenson, Jerry Carnes and defendant (the latter two being paid for their participation) to murder Murphy‘s wife and that she was killed as a result of that conspiracy. The recorded discussions generally relate to the progress the investigating officers were making and the manner in which Murphy and the Carnes brothers should conduct themselves in order to frustrate the investigation. Great concern is expressed that defendant and Jurgenson might “sing” and what strategy Murphy and the Carnes brothers should adopt in such event. Comment is made that defendant had agreed to “take the rap without involving anybody else” in the event “anything went wrong” and that defendant was “pretty scared.” Again great concern is expressed when it appeared that defendant had returned from some undesignated
The foregoing and other incriminating remarks were related under circumstances which would necessarily persuade a trier of fact of their truth. In addition, the recordings contained other remarks of an inflammatory nature from which it could be concluded that defendant was a dope addict and under the influence of heroin at the time of the killing and that he had on some earlier occasion driven his vehicle over the body of a police officer.
It appears, then, that the effect of receiving the transcripts of the recordings and thus allowing the trier of fact to consider them together with the competent evidence of defendant‘s guilt adduced at trial destroyed the force of defendant‘s testimony that he was innocent and compelled the conclusion of guilt.11
We conclude that on our examination of the whole cause it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error of receiving the recordings.
The judgment is reversed.
McComb, J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
SULLIVAN, J.—I concur in the judgment and I join in the majority opinion, except that portion dealing with the admissibility of the conversation between the coconspirator Jerry Carnes and Robert “Pokey” Jur-
Elsewhere in the opinion,1 the majority properly recognize that a coconspirator‘s hearsay statement, to be admissible against his fellow conspirator, must be made “during any activity in pursuance of any significant objective of the conspiracy.” (Ante, p. 853.) Their holding as to the admissibility of the Carnes-Jurgenson conversation cannot be reconciled with their own correct statement of the law. To reach this result the majority look beyond the charged conspiracy to commit murder and imply an uncharged conspiracy to receive payment for the criminal act. Thus they extend the hearsay exception in a manner which, in following Krulewitch v. United States (1949) 336 U.S. 440 [93 L.Ed. 790, 69 S.Ct. 716], they themselves condemn.
With all respect to my colleagues, I am afraid that they confuse motive with objective. The objective of the conspiracy entered into by Murphy, Carnes and defendant was to murder Murphy‘s wife. Whatever may have been Murphy‘s motive for sowing the seeds of the conspiracy, Carnes and defendant joined the scheme for its financial fruits. The different motives of all participants were satisfied by accomplishment of the murder: Murphy was rid of his wife, and defendant and Carnes were entitled to the payoff. No further acts were contemplated by the conspirators, and none were necessary to the completion of the conspiracy‘s objective. Nor did any common purpose (except perhaps avoidance of detection and punishment) continue to unite the interests of the participants. In fact, Murphy‘s interests after the murder were somewhat in conflict with those of the hired killers, because he was now financially indebted to them, albeit for an obligation which no court would enforce. To infer from this state of affairs that one of the objectives of the conspiracy was Murphy‘s payment to the others strains credulity. Although it is indisputable that money motivated some of its participants, the financial benefit to the hired killers was not part of the “common design of the conspiracy.” (People v. Suter (1941) 43 Cal.App.2d 444, 458 [111 P.2d 23].)
Besides confusing the motives of the conspirators with the objective of the conspiracy, the majority‘s holding would perpetuate the life of a conspiracy beyond rational limits. If, for example, Murphy had given his confederates a promissory note rather than cash, would the conspiracy
Even if we assume for the sake of argument that the Carnes-Jurgenson conversation did occur during the pendency of the conspiracy to murder Mrs. Murphy, it did not further the objective of that conspiracy, as required by
In the instant case the objective of the conspiracy was the murder of Mrs. Murphy. Assuming arguendo that payment for the murder was also an objective, the Carnes-Jurgenson conversation, to be admissible, had to be in furtherance of the receipt of payment, as the murder was at that time fait accompli. But the conversation consists solely of Jurgenson‘s statements informing Carnes how the murder had been carried out and, after joining the others, defendant‘s admonition to Carnes to “keep [his] mouth shut.” Nothing that transpired, it is evident, would have aided these conspirators in furthering the objective of receiving payment for their crime.
The decisional law in California dealing with the evidentiary problem before us provides on the whole for a rational termination of conspiracies. Where evidence has been held admissible, the duration of the conspiracy has extended beyond the substantive crime only to encompass activity directly related thereto (e.g., People v. Rodley (1900) 131 Cal. 240, 254
In People v. Brown (1955) 131 Cal.App.2d 643 [281 P.2d 319], cited by the People, I have found the only reference to payment for participation in a crime. In that case a conspiracy to murder Mrs. Brown was held to continue after an unsuccessful attempt on her life, because the evidence showed that the objective of the conspirators to murder her had not been abandoned. The court first correctly stated that a conspiracy “‘may, for various purposes, extend in point of time beyond the actual commission of the substantive crime, providing there is some evidence showing that subsequent activities of the conspirators were a part of their scheme or plan.‘” (Fns. omitted.) (Id. at p. 656, citing 11 Cal.Jur.2d 223.) Then, as examples of this proposition, the court gave “division of the loot and payment for participation in the crime (People v. Ross [supra] 46 Cal.App.2d 385, 395-396 . . .) and acts contemplating escaping punishment (People v. Tinnin [1934] 136 Cal.App. 301, 306 . . .).” (People v. Brown, supra, 131 Cal.App.2d 643, 656-657.) No case was offered to illustrate the example of payment for participation in crime. Notwithstanding the placement of the citation, the Ross case illustrates only the “division of the loot” example. Nor does the reference to 11 Cal.Jur.2d 223 yield any such cases. Therefore I consider the Brown dictum to be meaningless as support for the conclusion asserted by the People and adopted by the majority.
In opposition to the foregoing cases are those in which the courts have refused to extend the duration of the conspiracy, finding that its objective had either been accomplished or frustrated (People v. Dilwood (1892) 94 Cal. 89, 91; People v. Irwin (1888) 77 Cal. 494, 505; Callan v. Superior Court (1962) 204 Cal.App.2d 652, 664-665 [22 Cal.Rptr. 508]). As the majority note, this determination is generally a question for the trier of fact (People v. Smith (1966) 63 Cal.2d 779, 794, cert. den. (1967) 388 U.S. 913 [18 L.Ed.2d 1353, 87 S.Ct. 2119], rehg. den., 389 U.S. 893 [19 L.Ed.2d 211, 88 S.Ct. 13]). But the formula applied by all the cases requires that there be an objective of the conspiracy yet to be accomplished for the conspiracy to continue beyond the commission of the substantive crime. Where the purpose of a conspiracy is theft, the division of the proceeds among the conspirators is logically an integral part of the conspiracy‘s goal; where the object is murder, on the other hand, accomplishment of that goal generally satisfies the conspiracy‘s objective, even though the motives of some of the murderers remain unfulfilled.
In sum, I believe that the majority draw an irrational line by considering that the conspiracy continues for the purpose of
I am of the opinion that the statements of Carnes and Jurgenson are not admissible on retrial.2
Notes
On the subject of this exception to the hearsay rule, see generally McCormick on Evidence (1954) page 521; 4 Wigmore, Evidence (3d ed. 1940) section 1079; Levie, Hearsay and Conspiracy (1954) 52 Mich.L.Rev. 1159; Note, Developments in the Law—Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 984-989; Comment, The Hearsay Exception for Co-Conspirators’ Declarations (1958) 25 U.Chi.L.Rev. 530. See also Model Code of Evidence (1942) rule 508; Uniform Rules of Evidence (1953) rule 63(9).