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FILED: May 25, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ALEXANDER DANIEL KLEIN,
aka Alezander Daniel Klein,

Defendant-Apppellant.

Multnomah County Circuit Court
070331145
A139381

Edward J. Jones, Judge.

Argued and submitted on March 18, 2011.

Andy Simrin argued the cause for appellant. With him on the brief was Andy Simrin PC.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and David B. Thompson, Interim Solicitor General.

Before Wollheim, Presiding Judge, and Brewer, Chief Judge, and Nakamoto, Judge.

BREWER, C. J.

Affirmed.

BREWER, C. J.

Defendant appeals his convictions for murder, conspiracy to commit murder, and two counts of attempted aggravated murder. He argues, first, that body-wire and wiretap evidence admitted at his trial should have been suppressed; second, that an accomplice's testimony was insufficiently corroborated and, therefore, the trial court erred in failing to grant his motion for a judgment of acquittal on each of the charges; and third, that the court erred in excluding testimony that the accomplice had admitted to another person that she had "made this whole thing up to get out of jail." As explained below, we conclude that defendant was not an "aggrieved person" under the statutes governing the interception of oral communications and, thus, the trial court did not err in rejecting his challenge to that evidence. Concerning the accomplice testimony, we agree with the trial court's determination that the state presented sufficient corroborative evidence. Finally, as to the exclusion of the testimony concerning the accomplice's out-of-court statement, we conclude that, although such evidence may be admissible under the evidentiary rule in question, any error in excluding it in this case was not prejudicial. Accordingly, we affirm.

Because defendant was convicted after a jury trial, we state the facts in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007), cert den, 552 US 1113 (2008). We begin with a brief overview before describing the evidence in more detail. Defendant is a member of the Rollin 60s set, and the murder victim, Asia Bell, was an associate of the Hoover set; both sets originated from within the Crips gang, but later became rivals. As explained below, this case arose out of a dispute between the two sets following a dog-fight in which a dog belonging to one of the Hoovers apparently was poisoned by members of the Rollin 60s. The Hoovers retaliated by shooting and killing a member of the Rollin 60s--defendant's half-brother Bingo Gonzales--after which defendant and other members of the Rollin 60s, including Deprince Hale, went to Bell's house where Hale shot and killed Bell. Hale also shot and wounded Bell's husband and a neighbor. The crimes occurred in 2002 but, due to a lack of leads, the investigation went "cold" until 2006. In October 2006, defendant's ex-girlfriend, Sonja Hutchens, contacted the prosecutor's office and revealed certain information about the crimes--in particular, she identified Hale as the shooter--in order to obtain release from a 10-month jail sentence that she was serving. Based on the information that Hutchens supplied, police obtained an order to intercept communications between Hutchens and Hale via a body-wire to be worn by Hutchens. ORS 133.726.

On November 3, 2006, several days before the first intercept order was scheduled to expire, the police applied for a new order to intercept communications between Hutchens and Hale under ORS 133.726. The application described telephone contacts between Hutchens and Hale, and it indicated that the two had agreed to speak again in the future. The application stated that Hutchens had failed a lie detector test, after which she had revealed that defendant had driven her car to the murder scene, and that Hale and three other named gang members had been passengers in that car. The application for the second order again only sought to intercept communications between Hutchens and Hale. That application was approved by Judge Bergstrom.(1) Based on the second order, police intercepted a communication between Hutchens and Hale in which Hale indicated that he had lost respect for defendant and another Rollin 60s gang member. In context, it was apparent that Hale's comment referred to the events that surrounded and preceded the shooting of Bell.

A third application to intercept communications under ORS 133.726 was approved in December 2006, again authorizing the interception of communications between Hutchens and Hale. As a result of information obtained pursuant to that order, as well as other information gathered by the police, a fourth order was sought (and granted) for wiretapping pursuant to ORS 133.724. The fourth order, unlike the previous three, authorized interception of communications of defendant, as well as other people. That order also produced a significant amount of evidence that was admitted at trial.

The state charged defendant and Hale with the murder of Asia Bell and related crimes. As amplified below, the state's case was constructed on the evidence obtained through the interceptions of communications described above, as well as the testimony of Hutchens. The evidence at trial showed that defendant is a member of the Gonzales family, many of whom are members of the Rollin 60s. Rico and Bingo Gonzales were defendant's half-brothers. The victim, Asia Bell, was the daughter of Steve Bell; the Bells, as well as Asia Bell's husband Tyrone James, were associated with the Hoovers. In late October 2002, Steve Bell, who owned a fighting dog named Loco, met with defendant, who owned a fighting dog named Trouble. The meeting occurred at Asia Bell's house, and various members of both sets were present. A dog-fight was arranged, and a significant amount of money was placed in bets. During the fight, Loco, who previously had been undefeated, developed difficulty breathing and stopped fighting. Shortly thereafter, Loco died. Members of the Hoovers believed that members of the Rollin 60s had rubbed poison on Trouble's fur before the fight so that Loco would ingest the poison.

Several weeks after Loco's death, Rico and Bingo Gonzales, together with Hale, were present at or outside of an after-hours club when a car approached. Several people got out, including a member of the Hoovers. Almost immediately thereafter, Bingo Gonzales was shot. There was evidence that someone from the after-hours club returned fire at the shooter. Rico Gonzales and Hale took Bingo Gonzales to the hospital, where he was pronounced dead. Hoover members came to the hospital shortly thereafter and learned that Bingo was dead.

Three days later, on the evening before Bingo Gonzales' funeral, the crimes at issue in this case occurred. Defendant, Hale, and Hutchens, among others, gathered at the house of a Gonzales family member that evening. The people at the house were upset about the killing, and a group left the house and went to a park. While at the park, the group (which included defendant, Hale, and Hutchens) plotted to take revenge against the Hoovers. Defendant, Hale, and three other members of the Rollin 60s (Rico Gonzales, Jerrin Hickman and L'Don Archie) left in Hutchens' car, a gold Mercury Sable; defendant was driving. Hutchens followed in a different vehicle to act as a lookout.

Around 10:00 p.m., Asia Bell, her husband Tyrone James, and a neighbor, Robert Milhouse, were on Bell's porch. Defendant drove up in Hutchens' car, and Hale got out and approached the porch, shooting Bell, James, and Milhouse. Hutchens witnessed the shootings. Hale returned to Hutchens' car, and defendant drove away. Hutchens left the scene in the lookout vehicle. After leaving the scene, Hutchens went to the apartment of a friend, Angela Reeves, where Hale and defendant soon joined her. Hale asked Hutchens to wash his coat in order to remove gunpowder residue from the sleeve. Hutchens obtained permission from Reeves to use her washing machine, and then washed the coat.

Shell casings found at the scene of the crimes were positively identified as having come from the same gun that had returned fire at the shooters at the scene of the Bingo Gonzales murder. Although neighbors were able to provide police with general descriptions of the shooter, the getaway driver, and the car, the police had no solid leads as to who had shot Bell, James, and Milhouse. Thus, no prosecution was pursued until Hutchens came forward and identified Hale as the shooter.

Hutchens' testimony was a centerpiece of the state's case. At trial, Hutchens testified that she had conditionally pleaded guilty to conspiracy to commit the murder and that, if she fulfilled her obligations under her plea agreement with the prosecutor, she would be permitted to withdraw that plea and, instead, plead guilty to the less serious offense of conspiracy to commit first-degree assault. In the course of direct and cross-examination, Hutchens admitted that she had lied in numerous respects when she first talked to the police: She acknowledged that she had minimized her role in the crimes by not revealing that she had acted as a lookout, by not disclosing that her car was used, instead describing a different car, by indicating that Reeves also had been present, and by inaccurately describing the clothes that Hale wore during the shooting. Hutchens testified that she initially had lied to the police about details of the crimes because she was only interested in being released from jail, and she did not want anyone actually to be prosecuted as a result of her disclosures.

As noted, defendant's arguments on appeal focus on Hutchens' cooperation with the police and her testimony at trial. Defendant first argues that the trial court erred in denying his motions to suppress the body-wire evidence described above, as well as the evidence derived from the subsequent wiretapping. Within those challenges, defendant makes several subarguments. For present purposes, we need not describe defendant's subarguments in detail, other than to observe that they are all based on the asserted unlawfulness of the second body-wire order. The state responds to the substance of defendant's arguments, but it also argues that defendant was not an "aggrieved person" entitled to challenge the second body-wire order because he was not a party to the intercepted conversation or a person against whom the order was directed. As explained below, we agree with the state that, with respect to the second body-wire order, defendant was not an "aggrieved person" as that term is used in ORS 133.735.(2) Consequently, we do not reach defendant's arguments on the merits of the trial court's denial of his motion to suppress that evidence.

ORS 133.735 provides in pertinent part that an "aggrieved person" may seek suppression of intercepted communications, and ORS 133.721(1) specifically defines "aggrieved person" for purposes of that statute:

"'Aggrieved person' means a person who was a party to any wire, electronic or oral communication intercepted under ORS 133.724 or 133.726 or a person against whom the interception was directed and who alleges that the interception was unlawful."

Regarding the three body-wire interception orders, defendant was not "a party" to any of the intercepted communications. As noted above, those orders authorized the interception of--and in fact did intercept--communications between Hutchens and Hale. In particular, the orders provided as follows:

"The persons whose oral communications are to be recorded are SONJA ELAINE HUTCHENS and DEPRINCE ROMEY HALE and other unknown subjects who may be present during contacts by SONJA ELAINE HUTCHENS with DEPRINCE ROMEY HALE. This order authorizes only the interception of oral communications to which SONJA ELAINE HUTCHENS is a party, which means oral communication that are made in the immediate presence of DEPRINCE ROMEY HALE and are audible to DEPRINCE ROMEY HALE."

Defendant argues that, even though the orders neither authorized the interception of, nor intercepted, any communication to which he was a party, he nonetheless was "a person against whom the interception was directed" for purposes of ORS 133.721(1).

As we understand it, defendant contends that, because he could have been (but was not) an "unknown subject who may be present" during any authorized interception, he therefore was a "person against whom the interception was directed" for purposes of ORS 133.721(1). We disagree.

The meaning of "aggrieved person" in ORS 133.721(1) is unambiguous. It refers to two categories of persons--those who were a party to a communication that was intercepted, and those against whom the interception was directed. The latter term logically refers to a person who was identified in the order as a person whose oral communications could be intercepted pursuant to the order. If defendant were correct that a person "against whom the interception was directed" was meant to include any person who could have been (but was not) present when a communication was intercepted, the phrase would be rendered meaningless, because it would make every person an "aggrieved person."

Defendant nevertheless remonstrates that, because Oregon's statutes governing the interception of oral communications were based on federal counterparts, we should look to persuasive authority from federal courts and conclude (1) that he would have been aggrieved under federal law and, (2) perforce, that he is aggrieved under the Oregon statutory counterpart. As explained below, we disagree with the premise that defendant would have been "aggrieved" under the federal counterpart to ORS 133.721(1).

Oregon's statutes were enacted "to bring Oregon's wiretap provisions in line with the federal standards in Title III of the 1968 Omnibus Crime Control Act[.]" State v. Pottle, 296 Or 274, 282, 677 P2d 1 (1984). Moreover, as defendant notes, the federal definition of "aggrieved person" is substantially similar to Oregon's definition: "'[A]ggrieved person' means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 USC