On review from the Court of Appeals.*fn* CC No. 10-84-08136; CA No. A35041.
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.
Terry Ann Leggert, Assistant Attorney General, Salem, argued the cause for respondent on review. With her were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Defendant appealed his conviction for aggravated murder to the Court of Appeals, assigning as error the trial court's denial of his motion to suppress certain recorded telephone conversations between defendant and others and the recorded out-of-court statements of a co-conspirator, David Wilson. The Court of Appeals affirmed defendant's conviction. State v. Lissy, 85 Or App 484, 737 P2d 617 (1987). We affirm the decision of the Court of Appeals.
Defendant relies upon two points for reversal:
"[I.] Telephone calls are wire communication. The obtaining of wire communications must be through orders that confirm [ sic ] to ORS 133.724. As this was not done in the present case, the telephone conversations should be suppressed.
"[II.] The police obtained evidence through electronic surveillance orders pursuant to ORS 133.726. Any evidence obtained by this route should be suppressed as ORS 133.726 is unconstitutional by being less restrictive than the federal standards imposed by Title III of the Omnibus Crime Control and Safe Street [ sic ] Act of 1968."
We take the facts from the Court of Appeals' opinion and defendant's brief. Defendant's wife, Kathryn Martini-Lissy, was found dead in room 305 at the Valley River Inn in Eugene on June 6, 1984. She had been strangled to death during the previous evening. There was evidence that she had been raped.
As the investigation of the murder proceeded, police suspicion began to focus on defendant. Prior to the murder, defendant frequently hired prostitutes and told one of them, Molly Griggs, that he wanted a woman strangled and raped. Later, Griggs read a newspaper account of the killing and immediately suspected defendant. She called 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 he was involved in the murder and attempted to get money from him to allow her to leave town.
Another prostitute, Tina LaPlante, who had been selling sex to defendant on a regular basis, reported to the police, after consulting her attorney, that defendant told her he wanted a woman raped and murdered and offered her $500 if she could find a hit man. LaPlante agreed to look around for a killer for hire. LaPlante met David Wilson at a drug party. Wilson told her that he was willing to do the job. She arranged a meeting between defendant and Wilson. After that initial meeting, defendant told LaPlante that Wilson agreed to commit the murder for $5,000. On June 5, 1984, Wilson entered the victim's room at the Valley River Inn in Eugene, gagged her, raped her and then strangled her to death.
LaPlante was subpoenaed to testify before the grand jury. She retained an attorney and was granted immunity for her cooperation. She agreed to engage defendant and Wilson in conversations, and to allow the police to tape phone calls with defendant and give her a "wire up" for a face-to-face recorded conversation with Wilson. Defendant does not contest the voluntariness of LaPlante's consent to make the calls. She told the police that defendant had offered Wilson an additional $25,000 if he would admit to everything and say that defendant had nothing to do with it. The additional money was to come from the insurance proceeds.
On October 8, 1984, LaPlante placed a telephone call to defendant at his parent's home on the coast. The conversation was tape-recorded by the police with the consent of LaPlante. LaPlante and defendant discussed the plans to pay Wilson for taking the "fall." Defendant described how Wilson would get the $25,000 plus interest. LaPlante arranged a meeting with Wilson in Portland on October 11, 1984. During that meeting she was equipped with a "body wire," and the police were stationed in the vicinity. The police had obtained a court order from a circuit court judge for recording the conversation regarding the murder. Wilson and LaPlante discussed details of the crime. Wilson indicated he had taken the victim's necklace, credit cards, checks, etc. from the room. He described what the victim had said to him, prior to the murder. He described in graphic detail how he had murdered the victim. They discussed the arrangements for payment, and the story Wilson was to give the police to protect defendant. LaPlante agreed to arrange a meeting between Wilson and defendant to go over the details.
Wilson was arrested shortly after this conversation. LaPlante agreed to call defendant on the 12th of October. This call was also tape-recorded. She informed defendant that Wilson had been arrested. Defendant advised LaPlante to "hang tough 'cause there's always a chance in court of beating it."
Shortly thereafter, defendant was arrested. David Wilson was called during the Motion in Limine hearing, with counsel, and through his counsel asserted his Fifth Amendment right not to testify in defendant's trial.
Defendant's motion to suppress the recorded conversations between defendant and Griggs, defendant and LaPlante, and Wilson and LaPlante was denied by the trial judge, 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.
Defendant contended on appeal to the Court of Appeals 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 contended 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. In his petition for review to this court, defendant abandons his objections under the Oregon Evidence Code*fn1 and asserts two grounds for reversal set out above.
Defendant argues that the police's recording of his conversations with Griggs and LaPlante and between LaPlante and Wilson violates Oregon statutory wiretap law.
The first question we address is whether the legislature intended ORS 133.724*fn2 and 165.540(1)(a)*fn3 to allow the
police to record telephone conversations when one party consents to the recording. Read alone, ORS 165.540(1)(a) clearly exempts as a criminal offense that which would be illegal under chapter 165. Because defendant does not contest that both Griggs and LaPlante gave consent and were participants in the taped communications, the only question before this court is whether ORS 165.540(1)(a) exempts from the restrictions of chapter 133 recorded telephone conversations where one party consents to the police's recording of the communication.
The legislature enacted statutes that set forth the procedure for obtaining court orders for conducting wiretaps under ORS chapter 133, while the exemption (with consent of one party) for taping telephone conversations is found in chapter 165. Thus, the legislature created an exception from criminal sanction under chapter 165 to acts which are otherwise illegal under that chapter, but did not enact an exception, other than by warrant, for interceptions under chapter 133.
These statutes can be read as unrelated to each other or to conflict if it is assumed that, because ORS 133.724 makes no mention of consent and makes no mention of ORS 165.540, the provisions of ORS 133.724 are to exist independent of the provisions in chapter 165. That is, there is a conflict if chapter 165 merely provides criminal sanctions and exceptions from sanctions, leaving ORS 133.724 otherwise efficacious. Simply stated, the ...