# State v. Clegg

> Court of Appeals of Oregon · June 30, 1999 · 161 Or. App. 201

URL: https://www.frixlaw.com/law-library/cases/9793116

## Case

- **Full name:** STATE OF OREGON, Respondent, v. GROVER C. CLEGG, JR., Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** June 30, 1999
- **Citations:** 161 Or. App. 201; 984 P.2d 332; 1999 Ore. App. LEXIS 1151
- **Precedential status:** Published
- **Opinion:** Dissent by Wollheim
- **Judges:** Deits, Edmonds, Landau, Haselton, Armstrong, Wollheim, Brewer
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by State v. Clegg, 332 Or. 432 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9793116

## Opinion text

WOLLHEIM, J.,
dissenting.
The majority correctly concludes that hearsay evidence offered through witness Kendra Hughes was improperly admitted, because it was offered for the truth of the matter asserted and does not fall within any exception to the hearsay rule. 161 Or App at 209-10. However, the majority errs in declaring that this evidentiary error was not prejudicial.
*212 Hughes testified that the murder victim told her immediately before the murder that defendant had called the victim and asked the victim not to go to the bank with a coworker that morning. The victim therefore remained at work where the gunmen found and shot her. The state used Hughes’s testimony to establish that defendant participated in the murder by arranging for the victim to be in the location where the gunmen killed her. Hughes’s hearsay evidence was the centerpiece of the state’s case against defendant.
Although evidentiary error is not presumed to be prejudicial, OEC 103(1), the erroneous admission of this evidence undoubtedly prejudiced defendant. An appellate court may conclude that an evidentiary error is harmless only if there is substantial and convincing evidence of guilt, and if there is “little if any likelihood that the error affected the verdict.” State v. Carr, 302 Or 20, 27 , 725 P2d 1287 (1986). There is a great likelihood that the erroneously admitted evidence affected the verdict in this case, because it was the only evidence that defendant actively participated in the plot to murder the victim. While the other evidence on which the majority relies as evidence of defendant’s guilt certainly was probative — i.e., defendant telling people that he wanted the victim dead, defendant looking at a gun with his brother, Randall, and another individual, who might have been one of the gunmen, and defendant showing an unseemly interest in life insurance proceeds immediately after the murder — that evidence was nowhere nearly as strong as the inadmissible hearsay evidence that defendant arranged for the victim to be at the murder location when the gunmen arrived.
The evidence that defendant said he wanted the victim dead and that he asked her about life insurance proceeds immediately after the murder may tell us something about defendant’s motives. However, motive is not an element of any of the offenses at issue here. The evidence that defendant and his brother were seen looking at a gun with Matthews, who was implicated as one of the gunmen but whose guilt was never established, is suggestive. However, no evidence established that the gun that defendant looked at with his brother and Matthews was the murder weapon, which was never found. This evidence, while probative, comes nowhere *213 near close to being as damning as the hearsay evidence by Hughes regarding the contents of the telephone call.
Perhaps the most disturbing portion of the majority’s harmless error analysis, though, is its statement that “[tjhere was absolutely no indication that Randall did — or had any reason to — plan the murder of defendant’s wife, independently of defendant’s own expressed intention to bring about her death.” 161 Or App at 210-11. Randall has been found guilty of the murder and his conviction has been affirmed. As recounted in the majority’s opinion, evidence established that Randall hired one of the gunmen, Steward, and both Randall and Steward have been convicted. It is sheer speculation, however, to say that defendant must have committed the murder as well simply because no evidence showed that Randall had a motive to commit the murder that did not relate to his brother. The majority endorses a “guilt by association” theory here; because defendant did not establish that he was not cooperating with his brother in accomplishing the murder, the majority will assume otherwise. Such an assumption reverses the burden of proof in a criminal case and is entirely unwarranted.
I am not suggesting that the state did not have a strong case against defendant. I agree with the majority that there was a fair amount of circumstantial evidence of defendant’s guilt. However, there remains the question whether there was “little if any likelihood that the error [in admitting the hearsay evidence] affected the verdict.” Carr, 302 Or at 27 . Although the state sought admission of the evidence on the ground that it was not offered for the truth of the matter asserted, but to show state of mind, its arguments to the jury suggested that the substance of this hearsay evidence established defendant’s guilt. In closing, the prosecutor made the following remarks:
“Ms. Hughes testified that she recalls speaking with [the victim] when she came back that morning from her visit to one of the satellite offices. And she asked [the victim] what she was so happy about. And she said, ‘My husband loves me.’
“And she had talked about the fact that Gladys Waters, who also testified, told her that Gladys had offered to take *214 her to the bank that morning. And [defendant’s] response to [the victim] was, ‘No, no, no. Don’t go.’
“Ask yourselves why under the evidence do you think [defendant] didn’t want her to leave her [sic] that day. And think about the prior attempts on [the victim’s] life that you’ve heard about. [Defendant] wanted to make sure she was there. [Defendant] told her, ‘Don’t go. I’ll come and pick you up.’ And it’s because he wanted her there.”
Given the very strength of the inadmissible evidence that the jury was asked to consider and given the state’s suggestions to the jury on how to use that evidence, I cannot say that there is “little if any likelihood that the error affected the verdict.” Carr, 302 Or at 27 . On this record, the only inference that can be drawn is that the jury considered exactly what the state wanted it to consider — that the hearsay evidence established that defendant arranged for the victim to be at the location when the gunmen arrived. Such consideration was improper because, as the majority correctly notes, such use of that evidence is not permitted under the evidence code. However, the jury’s consideration of that improperly admitted evidence did, most likely, affect the jury’s verdict in this case. The majority errs in concluding otherwise.
I respectfully dissent.
Landau and Armstrong, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793116. Public record. Not legal advice.