People v. Saling

¶1I 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*857genson. I dissent from the holding that such conversation, which took place three days after the homicide, was admissible as falling within the coconspirator exception to the hearsay rule (Evid. Code, § 1223; see ante, p. 851, fn. 7).

¶2Elsewhere in the opinion,1 the majority properly recognize that a co-conspirator’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.)i 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.

¶3With all respect to my colleagues,. I am afraid that they confuse motive with objective. The objective of the conspiracy entered into1 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].)

¶4Besides 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 ca!sh, would the conspiracy *858continue until the note was paid? If Murphy defaulted on his promise to pay, would the conspiracy continue endlessly? According to the logic of the majority, and contrary to both established law and the hard realities of life, a conspiracy might last forever. An uncharged implied conspiracy to conceal a crime has properly been held to extend the duration of a conspiracy impermissibly beyond legitimate limits (Grunewald v. United States (1957) 353 U.S. 391, 404-405 [1 L.Ed.2d 931, 943-944, 77 S.Ct. 963]; Krulewitch V. United States, supra, 336 U.S. 440, 456 [93 L.Ed. 790, 800-801] (Jackson, J., concurring)). So too, in the case at bench, does the majority’s implied uncharged conspiracy to receive payment extend the duration of the conspiracy beyond legally recognized bounds.

¶5Even if we assume for the sake of argument that the Cames-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 Evidence Code section 1223, subdivision (a). The “furtherance” requirement did not expressly appear in Code of Civil Procedure section 1870, subdivision 6, the predecessor to Evidence Code section 1223, but was an additional limitation upon the hearsay exception included in the new statute (People v. Brawley (1969) 1 Cal.3d 277, 287 [82 Cal.Rptr. 161, 461 P.2d 361], cert. den. sub nom. Baker v. California (1971) 400 U.S. 993 [27 L.Ed.2d 441, 91 S.Ct. 462]). Although it may be argued that the “furtherance” requirement is superfluous in light of the pendency requirement (Levie, Hearsay and Conspiracy (1954) 52 Mich.L.Rev. 1159, 1173), nevertheless we may infer from the above change a legislative intent to narrow rather than to broaden the scope of this exception to the hearsay rule.

¶6In 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 Cames-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.

¶7The 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*859[63 P. 351], cert. den. (1901) 183 U.S. 694 [46 L.Ed. 393, 22 S.Ct. 934], conspiracy to fabricate a will and loot estate; People v. Ross (1941) 46 Cal.App.2d 385, 396 [116 P.2d 81], conspiracy to commit grand theft and divide the proceeds).

¶8In 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 Rosscase 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 Browndictum to be meaningless as support for the conclusion asserted by the People and adopted by the majority.

¶9In 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 [29 P. 420]; People v. Irwin (1888) 77 Cal. 494, 505 [20 P. 56]; 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 [48 Cal.Rptr. 382, 409 P.2d 222], 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 seme of the murderers remain unfulfilled.

¶10*860Two reasons, among others, have been advanced to support the cocomspirator exception to the hearsay rule. One assumes that during the attempt to reach a common goal and in furtherance of it the conspirators’ acts and declarations are reliable enough to be competent evidence against each other in a criminal prosecution (Note, Developments in the Law—Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 985, fn. 488). The other rationale asserts that conspirators are each other’s agents; when acting for divergent goals, however, the agency relationship cannot be assumed (id. at pp. 988-989; Levie, supra, 52 Mich.L.Rev. 1159, 1164-1165). Extending the conspiracy in the instant case until one conspirator pays the others for their participation defeats both justifications for the hearsay exception and opens the door to a flood of evidence the reliability of which is at most dubious. Neither the majority nor the People cite, nor has my independent research disclosed, any reported California decision so extending a conspiracy.

¶11In sum, I believe that the majority draw an irrational fine by considering that the conspiracy continues for the purpose of Evidence Code section 1223 until fulfillment of the promise which concededly induced some of the participants to enter into the conspiracy, but which was not its common goal. The rationale behind the United States Supreme Court’s decision in Krulewitch v. United States, supra, 336 U.S. 440, which the majority embrace in dealing with the recordings sought to be admitted, applies equally to the conversation. It is the objective of the conspiracy as an entity, not the individual motives of its members, which defines its temporal limits.

¶12I am of the opinion that the statements of Carnes and Jurgenson are not admissible on retrial.2