Jurisdictional Statement — Pearson v. Oklahoma
Supreme Court brief1977
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Supreme Court, 1.
FILED
APR20197?
Guihe Supreme Court of the Mini i ‘3 ween.
OcToBEeR TERM, 1976
No. 76-1454
Jack O. PEARSON,
Appellant,
VERSUS
STATE OF OKLAHOMA,
Appellee.
ON APPEAL FROM THE OKLAHOMA COURT OF
CRIMINAL APPEALS
JURISDICTIONAL STATEMENT
STEPHEN JONES
P. O. Box 3339
Enid, Oklahoma 73701
Attorney for Appellant
April, 1977
UTTEeRBacx TYPESETTING Co., S19 W. CALIF., OKLAHOMA City, PH. 238-0030
TABLE OF CONTENTS
Statement
Opinions Below —.__________
ee
Statutes Involved _...
Questions Presented
Statement of the Case _...__. POE ST Se
A. How the Federal Issues Were Presented __.____
B. The Decision Rests on a Federal Ground __.__
REE ES ES ST ne ™
The Questions Are Substantial Phe PL LS NOLL,
A. Electronic Eavesdropping —.______.. sedi italais
B. One-Man Conspiracy —-...
a
Certificate of Service follows Brief.
APPENDIX
Appendix A:
Second Opinion of the Oklahoma Court of Criminal
Appeals in Pearson v. State, filed Nov. 23, 1976
ik ° fn ee ciabidinlaasadiatnina
Appendix B:
First Opinion of the Oklahoma Court of Criminal
Appeals in Pearson v. State, filed Feb. 5, 1976
SE RS ace eect
PAGE
eel
TABLE OF CONTENTS CONTINUED PAGE
Appendix C:
Notice of Appeal to the Supreme Court of the
United States, filed Mar. 7, 1977 C-1
Appendix D:
Order Denying Petition for Rehearing, Denying
Motion to Stay Mandate and Directing Issuance
of Mandate Forthwith === iedhtetlnaied D-1
TABLE OF AUTHORITIES
CASES:
Bakes v. United States, 350 F.Supp. 547 (D.C. II.
1972), aff'd 478 F.2d 1405 11
Bethlehem Steel Company v. New York Board, 330
U.S. 767 (1947) ~ Ane ce ae
Boyd v. United States, 116 US. 616 (1886) . a7 ae
Boykin v. Alabama, 395 U.S. 238 (1969) 19
Bram v. United States, 168 U.S. 532 (1897) _...... 14
Camara v. Municipal Court, 387 U.S. 523 (1963) _. 15
Cameron v. State, Okl. Cr., 465 P.2d 576 (1961) _.8, 9, 21
Carnley v. Cochran, 369 U.S. 506 (1962) 19
Chambers v. Maroney, 399 U.S. 42 (1970) _.... = 15
Chapman v. United States, 365 U.S. 610 (1961) _...__ 20
Charleston Federal Savings and Loan Association v.
Alderson, 324 U.S. 182 (1945) 8
Chimel v. California, 395 U.S. 752 (1969) _.... 15
Coolidge v. New Hampshire, 403 U.S, 443 (1971) _. 115
Feder v. United States, 257 Fed. 694 (2nd Cir.) __. 23
Gebardi v. United States, 287 U.S. 112 (1932) _..... 24
Gillans v. United States, 182 F.2d 962 (D.C. Cir.
ELAS ec ae ee 13
Goldman v. United States, 316 U.S. 129 (1940) _. 12
Griswold v. Connecticut, 381 U.S. 479 (1965) _... ss: 15
Guss v. Utah Labor Board, 353 U.S. 1 (1957) _.... —s-_:110
—iii— ;
AUTHORITIES CONTINUED PAGE
Harris v. United States, 390 U.S. 234 (1971) _...... 15
Hartzel v. United States, 322 U.S. 60 (1944) += 24
Herman v. United States, 289 F.2d 362 (5th Cir.
| RE a Se 25
Hoffa v. United States, 385 U.S. 293 (1966) —......_.. 9, 12
Holmes v. Burr, 486 F.2d 55 (9th Cir. 1973) 20
Illinois Central Railroad eee v. Messina, 240
U.S. 395 (1916) ~ ie 10
Indiana ex rel. Anderson » Vv. ‘Brand, 303 US. 95
DI cincaishchisbsecco-sigidciascnniducleiaipontcabtohipesianiadhinchabetiinihmianenian 10
Katz v. United States, 389 U.S. 347 (1967) 11, 19, 21
La Crosse Telephone Corporation v. Wisconsin
Board, 336 U.S. 18 (1949) - hens icaiinaes:) ae
Lopez v. United States, 373 U. S. 427 (1963) - eae re 9, 12, 20
Louisiana v. N.A.A.C.P., 366 U.S. 293 (1961) 15
Manhattan Life “aasepeasiciansttndl v. Cohen, 234
US. 123 (1914) —........ Pal tle al oa 8
Mapp v. Ohio, 367 U.S. 643 (1961) - eran
McDaniel v. United States, 24 F.2d 303° (5th Cir.
AAAS INRIA oan memes Seana Cm neeD tA 24
McDonald v. United States, 335 U.S. 451 (1948) __. 13
Monroe v. United States, 234 F.2d 49 (D.C. Cir.
Ge hittin =
Morrison v. California, 291 U. Ss. 82 ( 1934) _ ae ie
Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960) __ 13
Olmstead v. United States, 277 U.S. 438 (1928) ___.. 12
On Lee v. United States, 343 U.S. 747 (1952) _....... |—-:112
Osborn v. United States, 385 U.S. 323 (1966)... _-_:112
Pearson v. State of Oklahoma, 556 P.2d 1025 07
Cr. 1976) - a _ 1, 22, 23
People v. Conklin, 522 P.2d 1049 (Calif. 1974) ouiteiisan 22
Rathbun v. United States, 355 U.S. 107 (1957) _ 9,13
Roberts v. United States, 416 F.2d 1216 (5th Cir.
—jy——
AUTHORITIES CONTINUED PAGE
Roe v. Wade, 410 U.S. 113 (1973) 15
Saltlonstall v. Saltlonstall, 276 U.S. 260 (1928) _. 8
Shelton v. Tucker, 364 U.S. 479 (1960) 15
Silverman v. United States, 365 U.S. 505 (1961) __12, 19
Stanley v. Georgia, 394 U.S. 557 (1969) 15
Stoner v. California, 376 U.S. 483 (1964) 20
Terry v. Ohio, 392 U.S. 1 (1968) __ 15
Thompson v. United state, 227 F.2d 671 (5th Cir.
EY insite 24
United States v. Barnett, 505 F.2d 1091 (7th Cir.
Res 14
United States v. Cox, 406 US. 934 (1972) 11
United States v. Jeffers, 342 U.S. 48 (1951) _..__.__. 20
United States v. Mendez, 496 F.2d 128 (5th Cir.
SED ichsacihilins 24
United States v. Postma, 242 F. 2d 488, cert. ‘den’d
354 U.S. 922 (2nd Cir. 1957) _ csasineiieiatliiaian: -> am
United States v. Rabinowitz, 339 U. S. 56 (1950) eae 14
United States v. Schanerman, 150 F.2d 941 (3rd Cir.
| tai
United States v. White, 401 US. 145 (1971). “ll, 13, 19, 21
United States v. Williams, 341 U.S. 58 (1951) _... 23
Watkins v. United States, 354 U.S. 178 (1957) _...._—s-15
Weeks v. United States, 232 U.S. 383 (1914) _.. oo
Winship, In re, 397 U.S. 358 (1970) 000 ti
STATUTES:
Bs oe) | f) | as
£2 8), RR ee 15
Re,
oe Fo SS ee ee 4, 6, 25
i F § |, se
ee Oe 3
—Y=
AUTHORITIES CONTINUED PAGE
CONSTITUTIONAL PROVISIONS:
Constitution of the United States of America,
Amendment Four —— : 4-5, 22
Constitution of the United ‘States of America,
Amendment Fourteen —_ he 5
MISCELLANEOUS:
A. Westin, Privacy and Freedom, at 127 (1967) 11, 18
Greenwalt, “The Consent Problem in Wiretapping
and Eavesdropping: Surreptitious Monitoring
with the Consent of a Participant in a Conversa-
CO 11,18
45 Wash. L. Rev. 785 (1970) a 17
Title III, Omnibus Crime and Safe Streets Act of
In the
Supreme Court of the United States
OctToser TERM, 1976
No.
JacK O. PEARSON,
Appellant,
VERSUS
STATE OF OKLAHOMA,
Appellee.
ON APPEAL FROM THE OKLAHOMA COURT OF
CRIMINAL APPEALS
JURISDICTIONAL STATEMENT
STATEMENT
Appellant, Jack O. Pearson, appeals from the judgment
of the Oklahoma Court of Criminal Appeals, entered on
December 20, 1976 (Appendix A, infra), affirming the judg-
ment of the District Court of Oklahoma County, Oklahoma,
finding him guilty of a violation of 21 Okl. Stat. 1971, § 421
et seq., conspiracy to commit murder, and submits this
statement to show that the Supreme Court of the United
States has jurisdiction of the appeal, and that a substantial
federal question is presented. Should jurisdiction not lie,
we respectfully request that these papers be treated in
accordance with the provisions of 28 U.S.C. § 2103.
aGn
The two opinions filed in the Oklahoma Court of Crimi-
nal Appeals are reproduced below. The first opinion was
filed on February 5, 1976 (Appendix B). That opinion was
withdrawn and a second opinion substituted on November
23, 1976 (Appendix A). The first opinion is reported at 47
Oklahoma Bar Association Journal 410. The second opinion
of the court is reported at 556 P.2d 1025 (Okl. Cr. 1976).
This criminal action was initiated by the State of Okla-
homa in the District Court of Oklahoma County, accusing
Jack O. Pearson of violating 21 Okl. Stat. 1971, § 421, ive.,
conspiracy to commit murder. A jury returned a verdict
of guilty, which was affirmed by the judgment of the Okla-
homa Court of Criminal Appeals, the State’s highest crimi-
nal court, entered on February 5, 1976, opinion withdrawn
and new opinion substituted on November 23, 1976. A peti-
tion for rehearing was denied and the mandate or decree
issued on December 20, 1976 (Appendix D). Notice of ap-
peal was filed on March 7, 1977 (Appendix C, infra). The
jurisdiction of this Court rests upon 28 U.S.C. § 1257(2), in
that the court below in determining the issue expressly held
that 21 Okl. Stat. 1971, § 1757 was consistent with 18 U.S.C.
$ 2511(2) (d), and by implication consistent with the United
States Constitution. We respectfully submit that jurisdic-
tion lies because 21 Okl. Stat. 1971, § 421 and § 1757 as con-
strued and applied by the court below violates the Fourth
and Fourteenth Amendments to the Constitution of the
United States.
=~ =
STATUTES INVOLVED
21 Okl. Stat. 1971, § 1757:
“Any person who maliciously, or without legal au-
thority removes, injures, or obstructs any line of
telephone or telegraph, or any part thereof, or appur-
tenances or apparatus therewith connected, or severs
any wires thereof, or fraudulently or without legal au-
thority, intercepts any message, communication or
conversation in its passage over such wires, or who
fraudulently or without legal authority connects any
telephone or telegraph line or wire, any instrument or
other apparatus capable of being used in intercepting
messages, communication or conversations, is guilty of
a misdemeanor and upon conviction shall be punished
by a fine of not less than $50.00, nor more than $500.00,
or imprisonment in the county jail not exceeding one
year, or by both such fine and imprisonment.”
21 Okl. Stat. 1971, § 1782:
“Any person who shall disclose the contents of any
telegraphic dispatch or telephone message or communi-
cation, or any part thereof, addressed to or which he
knows to be intended for another person without the
permission of such person, except upon the lawful
order of a court, or judge thereof, with intent to cause
injury, damage or disgrace to such other person, or
which does in fact cause injury, damage or disgrace to
such other person, shall be guilty of a misdemeanor,
and upon conviction thereof shall be punished by a
fine of not less than $50.00, nor more than $500.00, or
by imprisonment in the county jail not less than thirty
days or more than one year, or by both such imprison-
ment and fine. Provided, that nothing herein shall
apply to public officers in the discharge of their duties.”
21 Okl. Stat. 1971, § 421:
‘If two or more persons conspire, either: (1) to com-
mit any crime;...
“Except in cases where a different punishment is
prescribed by law, the punishment for conspiracy shall
be a misdemeanor unless the conspiracy be to commit a
feiony.
“Conspiracy to commit a felony shall be a felony and
is punishable by a fine not exceeding $1,000.00 or by
imprisonment in the state penitentiary not exceeding
two (2) years, or by both such fine and imprisonment.”
18 U.S.C. § 2511(2): ~
“(c) It shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire or
oral communication, where such person is a party to
the communication or one of the parties to the com-
munication has given prior consent to such intercep-
tion.
“(d) It shall not be unlawful under this chapter for
a person not acting under color of law to intercept a
wire or oral communication where such .person is a
party to the communication or where one of the parties
to the communication has given prior consent to such
interception unless such communication is intercepted
for the purpose of committing any criminal or tortious
act in violation of the Constitution or laws of the
United States or of any state or for the purpose of
committing any other injurious act.”
Amendment Four to the Constitution of the United States
of America:
“The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
nities
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describ-
ing the place to be searched, and the persons or things
to be seized.”
Amendment Fourteen to the Constitution of the United
States of America:
“Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state
wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
1. Whether 21 Okl. Stat. 1971, § 1757 as construed by
the Oklahoma Court of Criminal Appeals and as applied to
this case is in violation of the Fourth and Fourteenth
Amendments to the Constitution of the United States.
2. Whether 21 Okl. Stat. 1971, § 1757 which prohibits
consensual interception and recording of telephone conver-
sations as evidence in court, Cameron v. State, 365 P.2d 576
(1961), is consistent with 18 U.S.C. § 2511(2)(d) which
expressly permits such consensual recording as evidence.
3. Does 18 U.S.C. § 2511(2)(d) preempt state legisla-
tion in the field of consensual interception and recording
of telephone conversations by police officers secured with-
out prior judicial authorization?
ihe
4. Is the Fourth Amendment prohibition, made appli-
cable to the states through the Fourteenth Amendment,
against unreasonable searches and seizures violated by al-
lowing the introduction of tapes of telephone conversations
made with the consent of one of the participants, who
called the Appellant at the request of police officers, as
independent evidence in the prosecution’s case-in-chief over
the expressed Fourth Amendment objections of the De-
fendant?
5. Is 18 U.S.C. § 2511(2) (d), which answers question
four in the negative, violative of the Fourth and Fourteenth
Amendments to the Constitution of the United States?
6. Is 21 Okl. Stat. 1971, § 421 as construed and applied
by the court below repugnant to the Fourteenth Amend-
ment of the United States Constitution?
STATEMENT OF THE CASE
1. Defendant was charged along with his wife, Linda,
and one George Kriz with conspiracy to commit murder in
the first degree. Defendant was alleged to have solicited
George Kriz to find someone for him to do a “job.” Kriz
reported the conversation to one Don Woodyard who led
Kriz to believe that he was interested. Kriz brought the
matter to the police who then interrogated Woodyard. At
the suggestion of Detective Jack Hill, Don Woodyard called
Defendant at home on the telephone while Hill made a
recording of the conversation. Hill participated in the con-
versation and was introduced to Appellant over the tele-
phone by Woodyard as “Rocco” who could get the “job”
done. Kriz was granted immunity at the trial. The Court
_
of Criminal Appeals found, however, that neither Kriz nor
Woodyard had any intent or agreement with the Defendant
to commit a crime and therefore were not co-conspirators.
Pearson, supra 1031.
“a
2. After the conclusion of the preliminary hearing, the
charge against Linda Pearson was dismissed by the dis-
trict court for insufficient evidence. Notwithstanding the
dismissal for insufficient evidence, the Court of Criminal
Appeals found that she was a co-conspirator. Pearson, supra
1031. No other conspirators were named or unnamed. Thus,
although three persons were charged with conspiracy, one
was dismissed for insufficient evidence, the Court of Crimi-
nal Appeals found no agreement on the part of the second,
and only Appellant was convicted.
A. How the Federal Issues Were Presented
At the trial, the State introduced as part of its case-in-
chief the aforementioned tape recording of the telephone
conversation among Defendant, Don Woodyard and Detec-
tive Jack Hill. The exhibit was objected to by Defendant’s
counsel on several grounds including that there was no
judicial authorization for the interception or recording (Tr.
57),! that this was an invasion of the privacy of Appellant
(Tr. 57), that it was a violation of the Fourth and Four-
teenth Amendments of the Constitution (Tr. 57), and that
its introduction “would be in violation of the constitutional
rights of this Defendant” (Tr. 38). The objections were
overruled in all respects and side two of exhibit three was
1 Tr. refers to trial transcript, a copy of which has been certified to this
Court.
=
admitted into evidence and played for the jury. Thus, the
federal question was raised and overruled at the earliest
possible moment in the trial court. The objections were
preserved in the Motion for New Trial and raised on appeal
in the Petition-in-Error. Even if the federal question had not
been timely raised and renewed (which it was) the decision
below speaks directly and unequivocally to the federal
question. Cf. Saltlonstall v. Saltlonstall, 276 U.S. 260, 267-8
(1928); and Charleston Federal Savings and Loan Associa-
tion v. Alderson, 324 U.S. 182, 185-6 (1945), Manhattan
Life Insurance Company v. Cohen, 234 U.S. 123, 134 (1914).
Following Defendant’s conviction, he was sentenced to
two years in prison which he is presently serving. His con-
viction was appealed to the Oklahoma Court of Criminal
Appeals, the state court of last resort in criminal matters.
On February 5, 1976, the court issued its first opinion (Ap-
pendix B) affirming the conviction and holding that the in-
troduction of the taped conversations was error but harm-
less error. A Petition for Rehearing was filed challenging the
holding of the decision. On November 23, 1976, the court
withdrew its earlier opinion and this time held inter alia,
George Kriz and Don Woodyard were not co-conspirators,
but Linda Pearson was a co-conspirator, the admission of
the recordings was permissible because 21 Okl. Stat. 1971,
$ 1757 did not prohibit its introduction and the statute is
consistent, as interpreted, with the provisions of 18 U.S.C.
§ 2511(2)(d) and therefore implicitly not unconstitutional.
On its face and as applied before, the state statute clearly
prevented the introduction of the recordings. Cameron v.
State, Okl. Cr., 365 P.2d 576 (1961). Relying upon decisions
of this Court (infra) and 18 U.S.C. § 2511(2)(d) the court
-
below found the statute, as applied, consistent with 18
U.S.C. § 2511(2)(d) and not violative of the Fourth and
Fourteenth Amendments. A Petition for Rehearing was
filed as was a Motion to Stay Issuance of the Mandate on
the grounds that 21 Okl. Stat. 1971, § 1757 was in conflict
with 18 U.S.C. § 2511(2) (d). The petition and motion were
denied, the judgment was entered on December 20, 1976,
and the mandate issued the same day.
B. The Decision Rests on a Federal Ground
As we make clear, the decision below is based on a
federal ground. The Oklahoma Court of Criminal Appeals
had previously held that 21 Okl. Stat. 1971, § 1757 precluded
consensual and participant eavesdropping. Cameron Vv.
State, supra. In the instant case, the court ruled “for rea-
sons which are to become apparent, we no longer adhere
to the holding in the Cameron decision,” citing Rathbun v.
United States, 355 U.S. 107 (1957), Lopez v. United States,
373 U.S. 427 (1963) and Hoffa v. United States, 385 U.S. 293
(1966), all Supreme Court decisions involving interpreta-
tions of either federal statutes or the Fourth Amendment.
The immediate following paragraph of the opinion below
states “taken together, these cases establish the principle
that one who voluntarily enters into a conversation with
another takes the risk that such person may memorize, re-
cord or even transmit the conversation.” Thus, the validity
of the introduction of the tapes was established by the court
below on authority of three United States Supreme Court
decisions which are based upon interpretations of the
Fourth Amendment of the Constitution of the United States
and a federal statute.
=
The next paragraph of the opinion below claims that
the state wire-tap law, which it had just emasculated by
reference to this Court’s holding in the three cases above,
“. . . however, must be read in conjunction with the appli-
cable federal law. We must now determine whether such a
tape recording is in violation of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 . . . although
we feel that the act has not preempted the field of electronic
surveillance, it has at the very least set minimal standards
with which all states must comply.” Pearson, supra, at 1034.
The court then found the statutes consistent though ob-
viously they are completely inconsistent by a plain reading
of the text.
The “validity” of a state statute is sustained, for pur-
poses of an appeal to this Court under 28 U.S.C. § 1257(2)
when the state court holds the statute to be consistent with
the Constitution, treaties or laws of the United States.
La Crosse Telephone Corporation v. Wisconsin Board, 336
U.S. 18 (1949); Bethlehem Steel Company v. New York
Board, 330 U.S. 767 (1947); Guss v. Utah Labor Board, 353
US. 1, 5-6 (1957). The fact that the court below thought
it necessary to construe a federal statute indicates that the
construction of such act was material to the court’s ultimate
holding. IUinois Central Railroad Company v. Messina,
240 U.S. 395 (1916); Indiana ex rel. Anderson v. Brand, 303
U.S. 95 (1938).
adie
ARGUMENT
THE QUESTIONS ARE SUBSTANTIAL
A. Electronic Eavesdropping
A majority of this Court has never held that the Fourth
Amendment permits police-directed surreptitious monitor-
ing of telephone conversations with the consent of a partici-
pant in the conversation. See Bakes v. United States, 350
F.Supp. 547 (D.C. Ill. 1972), aff'd 478 F.2d 1405. Nor has
this Court ruled on the constitutionality of Title ITI of the
Omnibus Crime and Safe Streets Act of 1968. See United
States v. Cox, 406 U.S. 934 (1972), or more particularly the
validity, in view of the Fourth Amendment, of Title 18
U.S.C. § 2511(2)(c) and (d). See United States v. White,
401 U.S. 745 at 792 fn 30 (1971) (Mr. Justice Harlan dis-
senting).
The issues presented here are substantial because, with
respect to such consensual monitoring, on which this Court
is divided, four to four, White, supra, “the incidence of the
practice is rather high.” Greenwalt, “The Consent Problem
in Wiretapping and Eavesdropping: Surreptitious Monitor-
ing with the Consent of a Participant in a Conversation.”
63 Col. L. Rev. 190. Such monitoring by the police is done
“tens of thousands of times each year.” A. Westin, Privacy
and Freedom, at 127 (1967).
The questions presented by this appeal were not
answered definitively in United States v. White, supra,
although four members of this Court then sitting felt,
under the circumstances of that case, that participant
consensual eavesdropping was permissible. However, the
plurality opinion went beyond the essential issue in the
—12—
case which was the retroactivity of this Court’s holding in
Katz v. United States, 389 U.S. 347 (1967). On Lee, Rathbun,
Lopez, Hoffa, White and Osborn, are all inapposite to the
instant situation, although all are relevant to evaluation
and determination of the question.
1. In Osborn v. United States, 385 U.S. 323 (1966), a
tape recorded face to face encounter was introduced into
evidence and upheld by this Court because of the precise
particularities surrounding the surveillance procedures.
Osborn, supra, at 330-331. The recording moreover, was
authorized by a federal judge after presentation to him
of the initial facts justifying the investigation.
2. On Lee v. United States, 343 U.S. 747 (1952), in-
volved a subject whose conversations in person were
transmitted electronically to law enforcement agencies off
the premises of his business. The holding was justified on
the basis of Olmstead v. United States, 277 U.S. 438 (1928),
and Goldman v. United States, 316 U.S. 129 (1940). Neither
decision is now valid. See Silverman v. United States, 365
U.S. 505 (1961), and Katz, supra. |
3. Lopez v. United States, 373 U.S. 427 (1963), in-
volved the evidentiary use of a tape recording of a face to
face meeting by defendant made by an Internal Revenue
Agent whom the defendant was trying to bribe. The Court
upheld the introduction of the tape recording into evidence.
Neither a telephone nor an electronic transmitter was in-
volved.
4. Hoffa v. United States, 385 U.S. 293 (1966), involved
the use of secret agents and electronic eavesdropping was
not an issue.
=
5. In United States v. White, 401 U.S. 745 (1971), the
facts revealed White was engaged in illegal narcotics trans-
actions and his conversations with the informer were moni-
tored by a radio transmitter concealed on the informer.
White is a plurality opinion on al) issues except the holding
that Katz was not retroactive. White rests on pre-Katz law.
6. Rathbun v. United States, 355 U.S. 107 (1957), is
not controlling for two reasons. First, no recordings were
made and, secondly, the order granting the petition for cer-
tiorari restricted the court’s consideration to a question of
statutory instruction. 352 U.S. 965.
This case involves monitoring and police recording of
a telephone conversation among Appellant and an informer,
Don Woodyard, and one “Rocco,” at the suggestion of De-
tective Hill. “Rocco” was introduced by Woodyard as a “hit
man” but who was in reality Jack Hill, a detective on the
Midwest City Police Department. The recordings were
introduced by the prosecution in its case-in-chief at the
trial below as independent evidence. The recordings were
not introduced as corroboration but as an event of the
criminal acts. See United States v. Schanerman, 150 F.2d
941 (3rd Cir. 1958); Gillans v. United States, 182 F.2d 962
(D.C. Cir. 1950); Monroe v. United States, 234 F.2d 49 at 55
(D.C. Cir. 1956).
At the threshold we believe that “the procedure of
antecedent justification before a magistrate . . . is central
to the Fourth Amendment.” Ohio ex rel. Eaton v. Price, 364
U.S. 263, 272 (1960), (separate opinion); McDonald v.
United States, 335 U.S. 451, 455-6 (1948). The fact that
the issue presented here is in the context of a criminal case
ative.
should not blind us to the reality that the fundamental
right at stake is the right of all of us to be free from un-
justified government encroachment upon our privacy by
weakening the guarantees of the Fourth Amendment. “The
safeguards of liberty have frequently been forged in con-
troversies involving not very nice people.” United States
v. Rabinowitz, 339 U.S. 56, 69 (1950) (Mr. Justice Frank-
furter dissenting), and “the guilty are almost always the
first to suffer those hardships which are afterwards used as
precedents against the innocent.” United States v. Barnett,
505 F.2d 1091 at 1114-15 (7th Cir. 1975, dissenting Judge,
now Mr. Justice Stevens).
In a case such as this, few would object to a police-
sponsored telephone call which is then police-monitored in
order to apprehend a criminal making a highly incriminat-
ing statement. Yet, it is not just Appellant’s rights which
are threatened. The decision below and the statutes relied
upon violate the Fourth Amendment because they permit,
indeed encourage, the police to use dupes, informers, and
spies to monitor many innocent or non-criminal conversa-
tions in order to catch a criminal or to use a criminal
investigation as a pretext for such monitoring.
The “right to privacy” is a basic constitutional right
recognized by the Fourth Amendment. Mapp v. Ohio, 367
U.S. 643, 656 (1961). The holding of Boyd v. United States,
116 U.S. 616 (1886), is that the Fourth and Fifth Amend-
ments interact to create a comprehensive right of privacy,
of individual freedom that has repeatedly been acknow]-
edged by this Court. See Bram v. United States, 168 U.S.
532, 544 (1897); Weeks v. United States, 232 U.S. 383 (1914).
oiffinn
Privacy and the integrity of the personality have been
recognized by this Court in numerous settings. Roe v. Wade,
410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479
(1965); Louisiana v. N.A.A.C.P., 366 U.S. 293 (1961); Shel-
ton v. Tucker, 364 U.S. 479 (1960); Watkins v. United States,
354 U.S. 178 (1957); Stanley v. Georgia, 394 U.S. 557 (1969).
In considering investigations that impinge on privacy for
alleged violations of the criminal law, typically this Court
has required that for the invasion of privacy to be con-
stitutionally permitted, it must be subject to the warrant
requirement. Camara v. Municipal Court, 387 U.S. 523
(1963); Terry v. Ohio, 392 U.S. 1 (1968); Chimel v. Cali-
fornia, 395 U.S. 752 (1969); Mapp v. Ohio, supra, absent
some exigent circumstances which clearly are not appli-
cable here. Nor are police.neutral and detached for the
purpose of determining whether the degree of probable
cause is sufficient to invade that privacy. Coolidge v. New
Hampshire, 403 U.S. 443 (1971). There are no exigent cir-
cumstances in consensual monitoring and recording that
require a waiver of the warrant. Cf. Chambers v. Maroney,
399 U.S. 42 (1970); Chimel v. California, supra; Terry v.
Ohio, supra; Harris v. United States, 390 U.S. 234 (1971)
and 18 U.S.C. § 2518(7). Indeed, the very facts which would
arouse police suspicion sufficiently for them to persuade
one of the participants to allow the monitoring would al-
most inevitably be sufficient to establish probable cause
for a warrant or order authorizing the eavesdropping.
Unique, then, of the exclusionary rule cases, the warrant
requirement here protects the innocent and not the crimi-
nal. For if there is probable cause to believe a person is
guilty of a crime or that he is planning a crime and that
- =
evidence of that crime may be obtained by intercepting
certain conversations, then there should be little trouble
in securing a warrant to apprehend the guilty. If the con-
versation is, however, innocent, then the necessary sup-
porting facts for the affidavit will be insufficient and the
warrant will not issue and privacy will not be breached.
Yet, not to require a warrant exposes many innocent, inti-
mate and non-criminal conversations to the possibility of
continual interception and monitoring with the only re-
straint upon the police being self-restraint and the necessity
of locating a willing party to the conversation to permit
the monitoring. Such obstacles are hardly difficult to over-
come. The possibility of such a dragnet is incompatible with
a free society and will inhibit free and serious intercourse
by telephone whether social, business or professional. Thus,
conversations between husband and wife, parent and child,
employer and employee, lovers, lawyer and client, psychia-
trist or physician and patient, and priest and parishioner
will all be subject to possible eavesdropping.
The healthy discharge of frustrations and hostilities
through conversation has been recognized by various mem-
bers of this Court, United States v. White, supra, at 763 (Mr.
Justice Douglas dissenting), id. White, at 788 (Mr. Justice
Harlan dissenting), as dependent upon the fact that indi-
viduals believe they will not be held strictly accountable
for what they say or do in private. It is imperative in any
scheme of ordered liberty that the individual members of
society be constitutionally assured that the government will
respect their privacy. Through this autonomy and protec-
tion a person maintains his personal integrity by keeping
inviolate his ultimate secrets.
aifun
“Within the intimacy of small groups and close re-
lationships an individual is able to overcome the isola-
tion of the human condition. Private conversations,
which are often characterized by ‘exaggeration, ob-
scenity, agreeable falsehood, and expressions of anti-
social desires not seriously meant’ also provide a form
of social relief . . . For the essence of intimacy is the
sharing of emotions and information not revealed to
the public or more casual acquaintances. The extent to
which an individual controls or discloses personal in-
formation delineates the degree and the nature of his
interaction with other members of society. Some re-
spect for this control is therefore indispensible to a
healthy society.” Note, “The Applicability of the ‘New’
Fourth Amendment to Investigations by Secret Agents:
a Proposed Delineation of the Emerging Fourth
Amendment Right to Privacy,” 45 Wash. L. Rev. 785,
792-93 (1970) (citations omitted).
Privacy cannot exist at the whim or sufferance of law
enforcement personnel. So long as incriminating statements
made by criminals can be testified to, the added contribution
to law enforcement made by monitoring sanctioned by a
warrant or order outweighs the added invasion of privacy—
if the statements monitored are in fact proof of crime. On
the other hand, if statements of innocent people are moni-
tored—as will be done under the federal law now in
existence—they will be spread more widely than the
speaker’s wish with no compensating social gain. In some
situations they may even be used by officers for private
gain. Plainly, it makes sense to narrow the situations in
which monitoring takes place to those in which law enforce-
ment gain is likely to be great. The familiar constitutional
law technique for accomplishing this is the probable cause
requirement within the context of the court-ordered system.
— =
“It seems doubtful that law enforcement interests would
greatly suffer from the imposition of a probable cause
standard in this area. Frequently, if A will incriminate
himself before B one time, he will be willing to do so
again.” Greenwalt, supra, at 229.
Absent the warrant requirement the specter of elec-
tronic eavesdropping could easily have a profound effect
on the discourse of those people formerly willing to assume
the risk that their listeners might betray their confidential
communications. If individuals can no longer determine
when they are speaking “off the record,” they may lose
their sense of personal security, a fragile composite of
many irrational psychological factors. If this informality
is destroyed, an important release mechanism for relieving
social tensions will cease to function. See generally Westin,
supra, at 32-42.
Privacy aside, it has been argued that a person who
speaks with another takes the risk that his words will be
repeated so therefore electronically recording a conversa-
tion is consistent with this assumption of the risk—all the
more so for the criminal. Alternatively, it has been said
that either party to a conversation may waive its privacy.
The rebuttal to such an argument, however, is that the
individual clearly has an expectation of privacy in his tele-
phone conversation. Human experience tells us that when
we speak to another in private over the telephone our
expectation is that we are heard by his ears and his alone.
Few of us anticipate betrayal by those with whom we
speak via the phone. Certainly, we realize that those to
whom we speak may repeat our conversation. However,
“much offhand exchange is easily forgotten and one may
—19—
count on the obscurity of his remarks, protected by the very
fact of a limited audience and the likelihood that the lis-
tener will either overlook or forget what is said.” White,
supra, at 788. This widely held assumption is defeated by
warrantless recording.
The concept of waiver of an individual’s right has been
strictly interpreted by this Court and generally will not be
presumed from silence. Boykin v. Alabama, 395 U.S. 238,
242 (1969); Carnley v. Cochran, 369 U.S. 506, 516 (1962).
To even speak of a waiver or consent is totally inconsistent
with the internal logic of consensual eavesdropping, for
this Court has recognized that “. . . of course, the very na-
ture of electronic surveillance precludes its use pursuant
to the suspect’s consent.” Katz, supra, at 358. Certainly
Appellant intended privacy’and this was so recognized by
the police detective or else they would not have gone to the
lengths they did to tape the conversation. To imply or find
a constructive waiver or consent indirectly when it would
never have been given directly, is incredulous. Appellant
certainly did not surrender his right of privacy when he
communicated his thoughts to Woodyard. If a person com-
mits his secret thoughts to paper, there is no license for the
police to seize the paper without probable cause and an
antecedent determinaticn by a neutral magistrate. If a per-
son communicates his secret thoughts verbally to another
there is no license for the police to record the words. Silver-
man, supra. Nor can it be seriously argued there was a
waiver. For “the right of privacy would mean little if it
were limited to a person’s solitary thought and so fostered
secretiveness .. . ‘the common law secures each individual
the right of determining, ordinarily, to what extent his
- S
thoughts, sentiments, and emotions shall be communicated
to others . . . and even if he has chosen to give them expres-
sion, generally retains the power to fix the limits of pub-
licity which shall be given them.’ Warren and Brandeis,
‘The Right to Privacy,’ 4 Har. L. Rev. 193 at 198 (1890).”
Lopez at 450 (Mr. Justice Brennan dissenting). Certainly,
Woodyard cannot waive Pearson’s Fourth Amendment
rights any more than a hotel manager can consent to a
search of a guest’s room, Stoner v. California, 376 U.S. 483
(1964); United States v. Jeffers, 342 U.S. 48 (1951); or a
landlord give permission attributable to its tenant to search
the tenant’s quarters, Chapman v. United States, 365 U.S.
610 (1961); and the majority of this Court has never relied
on the so-called assumption of the risk doctrine to validate
intercepted private communication. Holmes v. Burr, 486
F.2d 55 at 71 (9th Cir. 1973) (Judge Hufstedler dissenting).
¢ To argue “that a person ‘assumes the risk’ of electronic
surveillance, although he was rightfully oblivious to the
risk, is to mislabel a newly created rule of law limiting the
scope of the Fourth Amendment.” Holmes, supra, at 72
(Judge Hufstedler dissenting). Arguably, an individual ex-
pects that anything he tells a second or third party may be
repeated in a court of law absent some privilege, but there
is a difference between that and talking to a person using
electronic equipment to monitor and record a conversation.
All of us discuss topics and use expressions with one person
that we would not undertake with another and we would
never broadcast to a crowd. No one talks to a recorder as
he talks to a person. Moreover, the person who knows that
the conversation is recorded can frame the tone of his voice
and his questions to elicit from the other person answers
aiiiicn
that he desires and thus give a distorted quality to the
reliability of the recording.
It has been argued further that a person contemplating
illegal activity assumes some risk that others do not. Among
these risks, it is said, is subjugation to warrantless elec-
tronic monitoring. White, supra at 752. The difficulty, how-
ever, with this argument is that absent the Fourth Amend-
ment requirement, of antecedent justification before a
neutral judge or magistrate, the innocent cannot be sepa-
rated from the guilty without probing everyone’s conversa-
tion or leaving the selection to the unbridled discretion of
government agents. What is left of anyone’s justifiable
reliance on privacy (see Katz, supra at 353) if everyone
must realize he will be free from warrantless electronic
intrusion only so long as someone in the government does
not suspect him of improper conduct or wrongful thinking?
To ask the question is to answer it. The guardian of the
individual’s right to privacy in this country is a neutral
magistrate, not police self-discipline or the willingness of
an informer or dupe to tape record a conversation. We
should never allow electronic surveillance based on ratio-
nale which requires an assumption of guilt, for the assump-
tion of guilt is clearly contrary to the constitutionally
mandated presumption of innocence. Cf. In re Winship,
397 U.S. 358 (1970).
The plain meaning of the Oklahoma Wiretap Law,
supra, is that participant-recorded conversations may not
be introduced as evidence in court, Cameron, supra. The
court below repeals this express language by reliance on a
federal statute which does not preempt the field, as the
—29—
court noted, Pearson, supra, 1034. See also, People v. Conk-
lin, 522 P.2d 1049, 1050, et seq. (Calif. 1974), for a similar
conclusion. The court’s reasoning is non sequitur. Permis-
sive federal legislation which does not preempt the field
does not, by implication, repeal a state statute expressly
forbidding what the federal statute permiis.
Although on its face the statutes do not violate the
Fourth Amendment and are clearly inconsistent with tha
federal statute, the Oklahoma Court has by construction
and application made them consistent with the federal
statute, and by implication with the Fourth Amendment
to the United States Constitution. In so doing, the court
below is in error as it relies upon decisions of this Court
clearly not controlling and distinguishable. Participant
monitoring and recording of telephone conversations and
subsequent introduction of these tapes into evidence vio-
lates the Fourth and Fourteenth Amendments. For that
reason the judgment below must be reversed.
B. One-Man Conspiracy
During the trial by demurrer to the evidence, after
conviction by motion for new trial, and on appeal by assign-
ment of error, the Appellant urged that the proof against
him failed because the State had not proven a conspiracy
in that there was no testimony that the Appellant conspired
with anyone to commit murder. Appellant was originally
charged wtih George Kriz and his wife, Linda Rae Pearson.
George Kriz was dismissed at the preliminary hearing stage
and subsequently granted immunity by the trial court. Not-
withstanding this grant of immunity, however, the Okla-
=~ =
homa Court of Criminal Appeals specifically found that
neither George Kriz nor Don Woodyard were co-conspira-
tors, regardless of any immunity grant because neither ever
had an agreement with Appellant to commit murder. Pear-
son, supra, at 1031. The only other possible co-conspirator
would be Linda Rae Pearson. However, the charges against
Linda Pearson were dismissed following preliminary hear-
ing for insufficient evidence. The Court of Criminal Appeals
attempted to circumvent this fact by holding that Linda
Rae Pearson was a co-conspirator in any event. Pearson,
supra, 1031. Such determination by the Oklahoma Court is
a violation of the Defendant’s Fourteenth Amendment
rights to equal protection of the law and due process. An
individual charged with the crime of conspiracy and against
whom the charges are dismissed for insufficient evidence
cannot later be held to be a co-conspirator for the purpose
of affirming a conviction against the remaining conspirator.
This Court has recognized that “one person obviously
cannot conspire with himself. Morrison v. California, 291
U.S. 82 (1934); Feder v. United States, 257 Fed. 694 (2nd
Cir.).” United States v. Williams, 341 U.S. 58, 86 (1951)
(Mr. Justice Black concurring). Williams also holds that
the acquittal of all co-conspirators means the principal must
also be acquitted.
In Morrison v. California, supra, a conviction for con-
spiracy was reversed because the charge against the co-
conspirator failed because of his lack of guilty knowledge.
Where two are charged with criminal conspiracy and the
conviction of one is reversed because of insufficiency of the
evidence to support it, the conviction of the other defend-
—24—
ant must be reversed. Gebardi v. United States, 287 U.S.
112 (1932). This is likewise true when the charges against
the other person are dismissed for insufficient evidence.
Hartzel v. United States, 322 U.S. 60, fn 3 (1944); Thompson
v. United States, 227 F.2d 671 (5th Cir. 1955); United States
v. Postma, 242 F.2d 488, cert. den’d 354 U.S. 922 (2nd Cir.
1957).
Indeed, mere knowledge, acquiescence or approval
without cooperation or an agreement is not enough to con-
stitute one a party to a conspiracy. McDaniel v. United
States, 24 F.2d 303 (5th Cir. 1928); United States v. Mendez,
496 F.2d 128, 130 (5th Cir. 1974). Likewise, “mere associa-
tion with conspirators is not enough to establish partici-
pation in a conspiracy.” Roberts v. United States, 416 F.2d
1216 (5th Cir. 1969). Accord, United States v. Mendez,
supra. With respect to Linda Pearson and the evidence
below, “there was no showing of active participation on
her part, nor did the evidence tend to show concerted action
for the accomplishment of a common purpose. The evidence
at most shows her association with (her husband) Mendez
and knowledge of his activities. It is therefore insufficient
to establish her as a co-conspirator.” Mendez, supra, at 130.
Notwithstanding the decision below, the Oklahoma
Court of Criminal Appeals cannot find the second party a
co-conspirator for the purpose of affirming the conviction
of the principal when the second party has had the charges
against her dismissed for insufficient evidence. There being
no co-conspirators within the legal meaning and definition
of that term, the Appellant cannot be convicted of conspir-
acy. To convict him of conspiracy in such circumstances
—_ =
violates his most elementary right to due process and a fair
trial since “a conspiracy cannot be committed by a single
individual acting alone.” Herman v. United States, 289 F.2d
362, 368 (5th Cir. 1961).
Although 21 Okl. Stat. 1971, § 421 requires on its face
that there must be an agreement by two or more persons
to constitute the crime of conspiracy, that statute as con-
strued and applied by the court below is repugnant to the
Fourteenth Amendment of the United States Constitution.
The decisions of this Court are clear: (1) a conspiracy
must be an agreement between two or more persons to
commit a crime, (2) if there is no agreement, there is no
conspiracy, and (3) if all other alleged co-conspirators are
acquitted or have the charges dismissed for insufficient
evidence or the convictions reversed, then the judgment
against the remaining conspirator must be vacated. The
Oklahoma Court of Criminal Appeals violates these hold-
ings by its decision in the Pearson case and thus deprives
Appellant of due process of law.
CONCLUSION
The decision below draws into question the validity of
a federal statute and relies upon state statutes, as construed
and applied, that are repugnant to the Constitution of the
United States. The federal questions were raised and spe-
cifically addressed by the court’s decision. The decision does
not rest upon independent non-federal grounds. The ques-
—26—
tions are clearly substantial and the holding is in error.
For these reasons the judgment of the Oklahoma Court of
Criminal Appeals should be reversed.
Respectfully submitted,
STEPHEN JONES
P. O. Box 3339
Enid, Oklahoma 73701
Attorney for Appellant
April, 1977
CERTIFICATE OF SERVICE
I, Stephen Jones, a member of the Bar of the Supreme
Court of the United States and counsel of record for Jack O.
Pearson, Appellant herein, hereby certify that on the _____
gg _— , 1977, pursuant to Rule 33,
Rules of the Supreme Court, I ‘served three copies of the
foregoing Jurisdictional Statement on each of the parties
herein, as follows:
On the State of Oklahoma, Respondent herein, by de-
positing such copies in the United States Post Office, in
Oklahoma City, Oklahoma, with first class postage prepaid,
properly addressed to the post office address of Larry Derry-
berry, Attorney General of the State of Oklahoma, the
above-named Respondent’s counsel of record, at the State
Capitol in Oklahoma City, Oklahoma.
All parties required to be served have been served.
DATED this ns | A
Stephen Jones
Post Office Box 3339
Enid, Oklahoma 73701
Attorney for Appellant
APPENDIX A
FILED
In Court of Criminal Appeals
of the State of Oklahoma
NOV 23 1976
Ross N. LILLARD, JR.
CLERK
IN THE COURT OF CRIMINAL APPEALS OF
THE STATE OF OKLAHOMA
JACK O. PEARSON, )
Appellant, )
-Vs- ) No. F-75-430
)
THE STATE OF OKLAHOMA, )
)
Appellee. )
-OPINION-
BUSSEY, Judge:
Appellant, Jack O. Pearson, hereinafter referred to as
the defendant, was charged, tried and convicted by a jury
in Oklahoma County, for the offense of Conspiracy to Com-
mit Murder in the First Degree, in violation of 21 O.S. 1971,
$ 421, Case No. CRF-74-2921. On the information, George
Kriz and Linda Pearson were also named as co-conspira-
tors. However, George Kriz was granted immunity in ex-
change for his testimony, and the charge against Linda
Pearson was dismissed prior to trial. As a result, the de-
fendant was the sole conspirator tried and convicted. He
was sentenced to a Five Hundred Dollar fine ($500.00),
which was suspended, and a term of two (2) years in the
State Penitentiary. From this judgment and sentence, the
defendant has perfected a timely appeal to this Court.
The State called as its first witness Mr. George Kriz.
Mr. Kriz testified that on August 12, 1974, an individual
A-2
[APPENDIX]
whom he identified as the defendant came to his house and
introduced himself. Mr. Kriz had not met the defendant
prior to that time. The defendant then told Mr. Kriz that
he “needed a job done.” He inquired if he knew anyone who
would do it. Mr. Kriz replied that he knew a “thief who
would steal just about anything.” The defendant then left,
but returned the next day to see if Mr. Kriz had contacted
anyone. Mr. Kriz said no but the defendant might go down
. and talk to Don.”! Mr. Kriz and the defendant then
proceeded to go to Don’s house, where Mr. Kriz introduced
the defendant to Don Woodyard, but did not listen to any
conversation between the two.
Two weeks later, the defendant again visited Mr. Kriz,
complaining that Don “hadn’t done anything he asked him
to do.” Mr. Kriz then testified in the following manner:
“MR. MILDFELT:
“Q. Did he tell you what he asked him to do at that
time?
“MR. KRIZ:
“A. No.
“MR. MILDFELT:
“Q. Okay. Did he ever tell you why he got in con-
tact with you?
“MR. KRIZ:
“A. Well he told me he had a job to do, was all.”
(Tr. 18)
On August 29, 1974, Mr. Kriz was arrested by the Mid-
west City Police. He was taken to the station, where he
spoke by telephone with the defendant. In that conversa-
tion he arranged the meeting between the defendant and
“Rocco,” who in reality was Lieutenant Jack Hill of the
1Don refers to the State’s second witness, Don Woodyard.
A-3
[APPENDIX]
Midwest City Police. Shortly thereafter, the defendant met
with Lieutenant Hill and Mr. Kriz. After a brief conversa-
tion between the defendant and Lieutenant Hill, the de-
fendant was arrested. Mr. Kriz testified that he did not
hear the conversation between the defendant and Lieuten-
ant Hill. Furthermore, he testified that he was granted
immunity for his testimony.
On cross-examination, Mr. Kriz testified that he never
at any time intended to commit a felony.
The State’s second witness was Mr. Don Woodyard.
Mr. Woodyard testified that on August 13, 1974, Mr. George
Kriz brought the defendant over to his home, and intro-
duced him. Mr. Woodyard then testified in the following
manner:
“MR. MILDFELT:
“Q. After you were introduced to Mr. Pearson, did
you have any conversation with him?
“MR. WOODYARD:
“A. Yes. :
“MR. MILDFELT:
“Q. What was the nature of that conversation?
What did he say to you and what did you say to him?
“MR. WOODYARD:
“A. Well, He told me he wanted a job done.
“MR. MILDFELT:
“Q. Did he tell you what that job was?
“MR. WOODYARD:
“A. Yes.
“MR. MILDFELT:
“Q. What did he say it was?
a
A-4
(APPENDIX)
“MR. WOODYARD:
“A. That he wanted somebody bumped off.
“MR. MILDFELT:
“Q. Did you ask him what he meant by that?
“MR. WOODYARD:
“A. Yes.
“MR. MILDFELT:
“Q. What did he say to you?
“MR. WOODYARD:
“A. He said he wanted them killed.” (Tr. 27)
The witness then went on to identify the intended victims
as Mr. and Mrs. Harry Buck, who were the mother-in-law
and stepfather-in-law of the defendant. During his conver-
sation with the defendant, Mr. Woodyard received $50.00
from the defendant as a down payment for the “contract.”
When asked where the defendant got the money Mr. Wood-
yard testified that the defendant walked back to his car,
where his wife was sitting, and returned with $50.00. Mr.
Woodyard then told the defendant he would get in touch
with “Rocco and Stretch” to get the job done. Further tes-
timony revealed however, that Mr. Woodyard did not know
the whereabouts of either Rocco or Stretch, and never made
any attempt at contacting them.
Asked whether he had seen the defendant on any other
subsequent dates, Mr. Woodyard testified that he saw him
on several other occasions. It was during one of those sub-
sequent meetings that the defendant supplied Mr. Wocd-
yard with names and addresses of the intended victims,
including car tag numbers and work habits. Mr. Woodyard
further testified that on each of these occasions, the defend-
ant’s wife was with him, and although she never engaged
in any of the conversation, often times she was within
A-5
[APPENDIX]
hearing distance of the defendant’s and Mr. Woodyard’s
conversations.
On the day of the final meeting between the defendant
and Mr. Woodyard, the defendant was angry at Mr. Wood-
yard for his failure to contact the hit men, Rocco and
Stretch. An altercation arose between the parties resulting
in Mr. Woodyard telling the defendant to get out of the
yard. The defendant left, and the police were called shortly
thereafter.
Mr. Woodyard then went to the Midwest City Police
Station, where he made a statement and attempted to ar-
range a meeting by telephone between the defendant and
Lieutenant Hill, who identified himself as the hit man,
Rocco. The conversation between Mr. Woodyard and the
defendant was recorded by the police, with Mr. Woodyard’s
consent, and subsequently admitted into evidence to cor-
roborate the testimony of the witnesses.2 The attempted
meeting, however, did not take place as a result of this
conversation.
On cross-examination, Mr. Woodyard testified that he
never intended to contact Rocco and Stretch, that he in fact
did not know their whereabouts, and that he never intended
to murder anyone.
The State’s third witness was Lieutenant Jack Hill of
the Midwest City Police Department. Lieutenant Hill testi-
fied that on August 28, 1974, Mr. Woodyard came to the
police station and gave a statement relating the events of
the recent days. A call was then placed to the defendant,
and an attempt was made to arrange a meeting between the
defendant and Lieutenant Hill, who identified himself as
Rocco. This attempt failed, and further attempts were made
on subsequent nights. During one of these conversations
2The record is mute as to the method used in recording this conver-
sation. The defendant's counsel does however, repeatedly refer to the tape
as an “electronic recording.”
oZ~
A-6
[APPENDIX]
with the defendant, Lieutenant Hill testified that the de-
fendant became apprehensive and said “hold on for just a
minute. My wife is talking to me.” (Tr. 49).
Finally, a meeting was arranged between the defendant
and Lieutenant Hill posing as Rocco. At that meeting the
defendant gave Lieutenant Hill a $20.00 bill, and was sub-
sequently arrested.
Lieutenant Hill further testified that all of these con-
versations between Mr. Woodyard, George Kriz, the de-
fendant, and himself, were recorded on tapes. The prosecu-
tion then moved to introduce all of these tapes into evidence
over the defendant’s objection. A conference was held
outside the presence of the jury, and the trial judge admit-
ted only one of the several tapes sought to be introduced.
The jury then heard a taped conversation between the
defendant, Mr. Woodyard, the defendant’s wife, Linda Pear-
son, and Lieutenant Hill. The contents of this taped conver-
sation corroborated the testimony of Lieutenant. Hill and
Don Woodyard.
The State’s next two witnesses were Harry and Ann
Buck, who were the intended victims. Their testimony
essentially provided the background leading up to these
events. It was established that there were bitter feelings
between the defendant and his wife, and Mr. and Mrs.
Buck, as a result of civil proceedings involving the custody
of Linda Pearson’s children from a prior marriage. Mrs.
Buck said that she testified against her daughter in those
proceedings. Mr. Buck’s testimony verified the car tag num-
bers given to Mr. Woodyard by the defendant, which cor-
responded to the car tag numbers of the automobiles he
owned.
The State also called Ella Reale as a witness. She testi-
fied she was a private investigator, who followed the de-
fendant and his wife to 1217 Ferguson, in Midwest City,
on August 13, 1974. She then followed them to 516 Short-
way, then to 421 Bowman, then back to their home, where
Oa ee RS titi came
ee a eee oe od a
Acct relat Me ee
A-7
[APPENDIX}
the defendant and his wife changed cars and returned to
516 Shortway.*
The State then rested. The defense also rested at this
time without calling any witnesses.
We are asked to consider a number of issues on this
appeal. The defendant has set out a number of propositions
in both his original brief and in his brief in support of his
amended petitions for rehearing, all of which in essence
attack the sufficiency of the evidence to sustain the convic-
tion of conspiracy to commit murder. In short, we are asked
to rule that as a matter of law, the evidence as presented by
the State failed to prove the crime of conspiracy, and as
such, the trial court erred in overruling the defendant’s
motion to dismiss, motion for directed verdict, and demur-
rer to the evidence.
The crime of conspiracy has generally been defined as
an agreement between two or more people to perform an
unlawful act, or a lawful act in an unlawful manner. Title
21, Oklahoma Statutes, Section 421 states, in pertinent part,
where two or more persons conspire to commit a felony,
this conspiracy is in itself a felony punishable by a fine not
exceeding One Thousand Dollars or by imprisonment in
the State Penitentiary not exceeding two years or by both
such fine and imprisonment.
The essence of conspiracy therefore, is the unlawful
agreement between two or more persons. Although in many
jurisdictions this agreement is in itself sufficient to consti-
tute the crime, Oklahoma requires an additional element
for the crime of conspiracy. Title 21, Oklahoma Statutes,
Section 423 states that:
“No agreement to commit a felony . . . amounts to a
conspiracy, unless some act besides such agreement be
3I¢ had been developed in the testimony of other witnesses that 1217
Ferguson was the home of George Kriz; 421 Bowman was the residence
of Don Woodyard; and it was not established who lived at 516 Shortway.
A-8
[APPENDIX]
done to effect the object thereof, by one or more of the
parties to such agreement.”
Therefore, to constitute the crime of conspiracy in Okla-
homa, two essential elements are required: an agreement
between two or more people to commit an unlawful act,
and some overt act by one or more of the parties in fur-
therance of this agreement.
The defendant contends in his brief that “at most, this
defendant was convicted of something that is not unlawful,
that is, a one man conspiracy.” With this we disagree. The
crime of conspiracy, by its very nature, is a crime clothed
in secrecy and is very seldom proved by direct evidence.
This Court has held in such cases as Henderson v. State,
Okl.Cr., 385 P.2d 930 (1963) in the Sixteenth Paragraph of
the Syllabus that:
“Existence of conspiracy need not be established by
direct evidence, but proof of circumstances from which
existence of conspiracy may fairly be inferred is suf-
ficient.”
The defendant argues rather persuasively that no
agreement was ever reached between the defendant and
George Kriz, because there is no evidence which shows
George Kriz ever knew what the object of the conspiracy
was, and as such could not agree to commit murder. By his
own testimony, Mr. Kriz stated he merely introduced the
defendant to Don Woodyard, but was never informed as to
the nature of the conversation between Don Woodyard and
the defendant.
The defendant also contends that there was no agree-
ment between himself and Don Woodyard, in that Don
Woodyaru merely feigned acquiescence, but at no time pos-
sessed the requisite criminal intent to go through with the
murders. Mr. Woodyard testified that he notified the police
after the defendant’s repeated solicitations, and that he,
A-9
[APPENDIX]
Woodyard, had no intent to commit the murders himself,
and could not possibly contact Rocco and Stretch because
he had no knowledge of their whereabouts. Nor was Don
Woodyard charged as a co-conspirator, and though this
issue was not argued by the defendant on this appeal, if
the State merely proved the conspiracy between the de-
fendant and Don Woodyard, who was not even named as a
co-conspirator, the problem of a material variance between
allegations and proof would have arisen.
We agree with these contentions of the defendant, that
no agreement was ever reached between the defendant,
Gorge Kriz, and Don Woodyard. However, the defendant
further argues that the “co-defendant Linda Rae Pearson
was dismissed from this case prior to jury trial, and that
there is no trial testimony concerning any agreement, intent
nor conspiracy on her part.” With this we do not agree.
The record reveals that on every single occasion that
the defendant went to discuss the murder of his in-laws
with Don Woodyard, the defendant’s wife, Linda Rae Pear-
son, was present. In regard to the first meeting, where the
defendant paid Don Woodyard $50.00 in earnest money,
Mr. Woodyard testified in the following manner:
“MR. MILDFELT:
“Q. Did he tell you where he got the [$50.00] or
where he was going to get it before he got it?
“MR. WOODYARD:
“A. He just said, just a minute and I will be back
and he walked over to the car.
“MR. MILDFELT:
“Q. Who was in the car?
“MR. WOODYARD:
“A. His wife.” (Tr. 28)
A-10
[APPENDIX]
On another occasion, the defendant handed Don Woodyard
the names and addresses, work habits and car tag numbers
of the intended victims. The intended victims were the
mother and stepfather of Linda Rae Pearson. It was estab-
lished at trial that they had testified against her in child
custody proceedings earlier that year which resulted in
Linda Rae Pearson losing custody of her children by a
prior marriage.
During one of the taped conversations between Don
Woodyard and the defendant, which was admitted into evi-
dence, Linda Rae Pearson took the receiver from her hus-
band, the defendant, and said “Don, why don’t you just
come up with the fifty. and we’ll forget the whole thing.”
The defendant would have us believe that this statement
is strong evidence indicating abandonment of the conspir-
acy, and with this we agree. However, from the same state-
ment, it is reasonable to infer that the defendant and Linda
Rae Pearson had in fact entered into an agreement to
commit murder.
In Hutchman v. State, 61 Okl.Cr. 117, 66 P.2d 99 (1937),
this Court stated:
“The courts of this country have often held that it
is not necessary that a conspiracy be proved by direct
testimony, in fact, conspiracies are seldom susceptible
to such proof. It is often proved by circumstances. We
call attention to the case of Mathews v. State, 19 Okl.
Cr. 153, 198 P. 112, 117 wherein the court says:
“*A conspiracy, leading up to the commission to the
crime charged need not be established by direct evi-
dence, but may and generally must be proved by a
number of independent acts, conditions, and circum-
stances. The very existence of a conspiracy is generally
a matter of inference deduced from certain acts of the
persons accused, done in pursuance of an apparently
criminal or unlawful common purpose.
A-11
[APPENDIX]
“Tt is not necessary to prove that the conspirators
came together and actually agreed to pursue their
purpose by common means, one performing one part
and another another. If one concurs in a conspiracy,
no proof of an agreement to concur is necessary to
make him guilty .. .’”
See, also, Henderson v. State, Okl.Cr., 385 P.2d 930 (1963).
We therefore hold that there was competent evidence
from which the trier of facts could reasonably conclude that
an agreement to commit murder had been entered into
between the defendant and Linda Rae Pearson, and that
this Court will not interfere with the jury’s findings, since
it is the exclusive province of the jury to weigh the evidence
and determine the facts. See, Campbell v. State, Okl.Cr.,
546 P.2d 276 (1976). ;
Having established that, there was competent evidence
from which a jury could reasonably conclude an agreement
had been entered into between the defendant and Linda
Rae Pearson, we now address ourselves to the question of
whether there was an overt act in furtherance of the ob-
jective of the agreement. The defendant contends in his
petition for rehearing, and in his brief in support of his
petition, that under 21 O.S. 1971, § 423:
“.,. there must have been, . . . evidence of an agree-
ment to commit murder and an act must be done in
furtherance of the objective of the agreement to com-
mit murder.” (Emphasis original)
The defendant urges that the payment of the $50.00 by de-
fendant to Don Woodyard, as well as supplying information
concerning the intended victim’s work habits, are not overt
acts in furtherance of the agreement. Rather, such acts are
part and parcel of the agreement itself. We are asked by
the defendant “not to strain logic and reason to reach a
result which does not flow naturally from the proven facts.”
a
A-12
[APPENDIX]
We feel that the defendant’s argument rests on the
erroneous assumption that the agreement to commit mur-
der existed between the defendant and Don Woodyard, and
that the payment of the $50.00 and supplying information
is of necessity a part of the agreement itself and not an
overt act. But we need only point out to the defendant that
the evidence supports a finding that the agreement to com-
mit murder existed between the defendant and Linda Rae
‘Pearson. Therefore, the payment of the $50.00 by the de-
fendant, the supplying of names, addresses, work habits
and car tag numbers of the intended victims were in fact
overt acts in furtherance of the pre-existing agreement to
commit murder between the defendant and Linda Rae
Pearson. See, Wright v. State, Okl.Cr., 535 P.2d 315 (1975).
While unnecessary to the determination of the issues
here presented, we make reference to the case of State v.
Mandel, 78 Ariz. 226, 278 P.2d 413 (1954). That case is,
in almost every respect, factually identical to the case at
bar. The Arizona court therein held that where the defend-
ant hired another party to commit murder, supplied the
money, as well as information concerning the intended
victims whereabouts, these acts by the defendant were suf-
ficient overt acts to constitute the crime of attempted mur-
der. See, also, State v. Gray, 4 Wash. App. 834, 486 P.2d 341
(1971). Whether the hiring of a party to commit murder,
and supplying a would be murderer with money and infor-
mation, are sufficient overt acts by the solicitor to constitute
attempted murder, we do not now decide, but reserve our
answer for a more appropriate case. But in the opinion of
this Court, such acts by the defendant in the instant case
are sufficient overt acts in furtherance of the object of the
conspiracy. Accordingly, we are of the opinion that the
State presented sufficient evidence reasonably tending to
sustain the allegations charged, and that the trial court
properly overruled the defendant’s motion to dismiss, mo-
tion for a directed verdict, and demurrer to the evidence.
A-13
[APPENDIX]
We come now to the defendant’s next assignment of
error. The defendant contends that the introduction of the
taped conversation between the defendant and Don Wood-
yard was inadmissible and highly prejudicial to the defend-
ant. The defendant cites as authority the case of Cameron v.
State, Okl.Cr., 365 P.2d 576 (1961), wherein this Court held
that where one party to a telephone conversation consents
to a recording without the second party’s knowledge or
consent, such a recording may not be used as evidence
against the nonconsenting party. The defendant also cites
21 O.S. 1971, § 1757 which states, in pertinent part:
“Any person who .. . fraudulently or without legal
authority connects to any telephone or telegraph line
or wire any instrument or other apparatus capable of
being used in intercepting messages, communications
or conversations, is guilty of a misdemeanor .. .”
The thrust of the Cameron decision and its interpreta-
tion of 21 O.S. 1971, § 1757, seems to be that neither party
to a conversation may consent to a recording, if such a
recording involves a physical intrusion into the telephone
lines. This Court held in Cameron, supra, that,
“If the evidence had been obtained by listening in
over the receiver of the extension, either [party] could
publish the conversation . . . But neither party under
our statute can tap the telephone lines, for such would
be unauthorized infringement on the company lines
“There can be no legal tap of such facility without
the consent of the person who originates the conversa-
tion, the one who responds to it, and the telephone
company. A legal tap could not be made by any party
in any other way.”
In Williams v. State, Okl.Cr., 507 P.2d 1339 (1973) a
manager of a motel received a call from room number 5
A-14
(APPENDIX)
on the motel office telephone. After answering the phone,
there was no response from the calling party, but the man-
ager heard a “loud disturbance” coming from the room.
He then made a tape recording of these sounds, and this
tape was admitted into evidence. This Court there held that,
“There was no tap on the line or interference with
the normal telephone lines . . . The motel manager .. .
merely recorded that which he, as the proper party to
the telephone line, could hear.”
The Williams case, supra, went on to say that merely
recording a conversation with the consent of one of the
parties by placing a device against the side of the telephone
is not an “intercept” under our statute and is therefore
permissible. The Cameron decision, supra, on the other
hand, holds that if a party to the conversation consents to a
recording, and such recording is effected by the slightest
physical interference with the telephone line, such as a
small splice in the wires, this constitutes an unlawful “inter-
cept” and is impermissible. The purpose of the wire tap
statute, according to Cameron, supra, “. . . was designed,
among other things, to protect not only the privacy of users
and subscribers of telephone service, but the telephone
company facilities against intermeddling mischief makers
and trespassers.”
For reasons which are to become apparent, we no
longer adhere to the holding in the Cameron decision.
In Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161,
2 L.Ed.2d 134 (1957), the United States Supreme Court
held:
“The communication itself is not privileged and one
party may not force the other party to secrecy merely
by using a lelephone . . . either party may record the
conversation and publish it.”
A-15
[APPENDIX)
The Cameron decision itself recognized this principle, when
it stated, “. . . if the evidence had been obtained by listening
in over the receiver of the extension, either [party] could
publish the conversation . . .” See, also, Lopez v. United
States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963);
Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 71 L.Ed.2d
374 (1966).
Taken together, these cases establish the principle that
one who voluntarily enters into a conversation with another
takes the risk that such person may memorize, record, or
even transmit the conversation. Therefore, when Don
Woodyard gave his consent to record the conversation be-
tween himself and the defendant, the conversation was
divested of its private character. Consequently, 21 O.S. 1971,
$ 1757 can offer no protection of privacy to a conversation
no longer deemed to be private.
The State wire tap law, however, must be read in-con-
junction with the applicable federal law. We must now
determine whether such a tape recording is in violation of
Title III of the Omnibus Crime Control & Safe Streets Act
of 1968, 18 U.S.C. §§ 2510-2520. This act by Congress is a
comprehensive statute defining on a uniform basis the cir-
cumstances and conditions under which the interception of
wire and oral communication may be authorized. Although
we feel that the act has not pre-empted the field of elec-
tronic surveillance, it has at the very least set minimal
standards with which all states must comply. The act
clearly states that wherever any wire or oral communica-
tion is intercepted, it may not be used as evidence in any
trial, hearing, or other proceeding in any court of the United
States, any state, or any political subdivision thereof if dis-
closure would be in violation of the act. See, 18 U.S.C.
$ 2515.
Title III, however, sets out a number of exceptions to
the general provision prohibiting unlawful intercepts. Title
18, United States Code Section 2511(2)(d) states:
A-16
[APPENDIX)
“It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a wire
or oral communication where such person is a party to
the communication or where one of the parties to the
communication has given prior consent to such inter-
ception unless such communication is intercepted for
the purpose of committing any criminal or tortious act
in violation of the Constitution or laws of the United
States or of any State or for the purpose of committing
any other injurious act.”
Under the facts and circumstances in the instant case,
we do not feel that the recording was made for the purpose
of committing any unlawful act. On the contrary, it was
made to further the ends of justice, and in aid of legitimate
law enforcement. We therefore conclude that Don Wood-
yard’s consent to the taping of the conversation was proper,
and such recording did not constitute an “unlawful inter-
cept” as prohibited by the federal act. See United States v.
Riccobene, 320 F.Supp. 196 (S.D. Pa. 1970) Affirmed, 451
F.2d 586 (3rd. Cir. 1971); People v. Patrick, 46 Mich. App.
678, 208 N.W.2d 604 (1973).
Nor, do we believe that 21 O.S. 1971, § 1757 should
be interpreted to mean that a telephone recording made
through the use of a suction cup device is not an intercept,
where one made by “splicing wires” is an intercept, and is
therefore prohibited. Where there is consent by either one
or more of the parties to a telephone conversation, distinc-
tions between the methods employed in the taping of the
conversations are inconsequential.
We therefore hold that where one person is a party to
a telephone conversation, such person has the lawful au-
thority to record, or permit another to record, the contents
of the conversation for any legitimate purpose. The laws
pertaining to eavesdropping and the recording of telephone
communications do not apply where one of the parties to
—_—
A-17
[APPENDIX)}
the conversation consents to or directs its overhearing or
recording. People v. Canard, 257 Cal. App.2d 444, 65 Cal.
Rptr. 15 (1967), cert. denied 393 U.S. 912, 89 S.Ct. 231,
21 L.Ed.2d 198. Furthermore, such recordings may be made
by any reasonable means, as long as the methods employed
do not cause serious injury to the telephone lines or inter-
rupt other telephonic communications so as to necessitate
repair by the telephone company. To adhere to the rigid
standards set out in Cameron, supra, i.e. where the consent
of all parties to a conversation is required, including the
telephone company would lead to the anomalous result
whereby the right of privacy in the use of the telephone
has greater sanctity than the right of privacy in the home.
With this we cannot agree, and to the extent that Cameron
v. State, supra, is inconsistent with this opinion, it is hereby
overruled.
Accordingly, the defendant’s second assignment of
error is without merit.
Lastly, defendant contends that the court failed to
adequately instruct the jury by refusing to give certain
instructions and by the giving of others. This assignment
of error is also without merit. A careful reading of the in-
structions given the jury show that taken as a whole, they
set forth the law of the State of Oklahoma regarding con-
spiracy. Defendant’s requested instructions are not sup-
ported by Oklahoma case law. Further, even if support
could be found for defendant’s contentions in Oklahoma
law, it is not necessary that the court instruct the jury in
precisely the language requested by the defendant. It is
enough if the court instructs on the general principle of the
law of the case. See, Trowbridge v. State, Okl.Cr., 502 P.2d
495 (1972), citing with approval Butler v. United States,
197 F.2d 561 (10th Cir. 1952).
For all of the above and foregoing reasons, the judg-
ment and sentence appealed from should be, and is hereby,
AFFIRMED.
A-18
[APPENDIX]
AN APPEAL FROM THE DISTRICT COURT,
OKLAHOMA COUNTY, OKLAHOMA,
HONORABLE CARMON C, HARRIS, JUDGE,
JACK O. PEARSON, appellant, was convicted for the
offense of Conspiracy to Commit Murder in the First De-
gree; was sentenced to Five Hundred Dollar ($500.00) fine,
which was suspended and a term of two (2) years in the
State Penitentiary, and he appeals. Judgment and sentence
AFFIRMED.
PETER K. SCHAFFER,
OKLAHOMA CITY, OKLAHOMA
Attorney for Appellant,
OPINION BY BUSSEY, J.,
BRETT, P. J., AND
BLISS, J., CONCUR.
LARRY DERRYBERRY, ATTORNEY GENERAL,
MICHAEL JACKSON, ASST. ATTY. GEN.,
JOE MARK ELKOURI, LEGAL INTERN,
Attorneys for Appellee.
———
Jb rbeet. UD ON ee wth eer
APPENDIX B
PEARSON v. STATE.
No. F-75-430 February 5, 1976
BUSSEY, J. Appellant, Jack O. Pearson, hereinafter
referred to as defendant, was charged, tried and convicted
by a jury in Oklahoma County for the offense of Conspiracy
to Commit Murder in the First Degree, in violation of 21
O.S. 1971, § 421. He was sentenced to a fine of Five Hundred
($500.00) Dollars, which was suspended, and a term of two
(2) years in the penitentiary. From the judgment and sen-
tence a timely appeal has been perfected to this Court.
The State’s first witness was George Kriz, who testified
that on August 12, 1974, an individual whom he identified
as the defendant, came to his home and introduced himself.
Mr. Kriz testified that he had not met the defendant prior
to that time. Defendant told Mr. Kriz he “needed a job
done” and asked for the witness’ help in locating someone
to do it. Mr. Kriz told defendant that he knew a “thief” who
would “steal just about anything,” and that he would check
with him. The next day defendant returned and the witness
told him he could not locate the first individual, but sug-
gested he contact Don Woodyard. Later that same evening
Kriz introduced defendant to Woodyard, but did not hear
any conversation between them. The witness testified that
the next time he saw the defendant was some two weeks
later. At that time the defendant returned to the home of
Mr. Kriz and complained that Don had not yet done any-
thing.
On August 29, 1974, the witness was arrested by the
Midwest City police. He was taken to the station where he
spoke by telephone with the defendant. In that conversation
the witness arranged for a meeting between defendant and
“Rocco,” who in reality was Lt. Jack Hill of the Midwest
City Police Department. A few minutes after the conversa-
B-2
[APPENDIX]
tion the witness and Lt. Hill went to the Planet Bowl in
Midwest City where the witness introduced the two men
to each other. Following a conversation of a few minutes,
Lt. Hill and Mr. Kriz returned to Kriz’s home, and waited
for the defendant. When defendant arrived, Kriz stepped
back and did not hear the conversation between the defend-
ant and Lt. Hill. He observed the defendant hand something
to Lt. Hill, and then Hill placed the defendant under arrest.
Mr. Kriz also testified that he had been granted im-
munity and the charges against him were dismissed in this
same case. He also testified that during his several trans-
actions with the defendant he had never intended to commit
any crime.
The State’s next witness was Don W. Woodyard, who
testified that in August, 1974, he was introduced to the
defendant by George Kriz. He testified that the defendant
told him he wanted someone “bumped off,” or killed. He
testified that defendant identified these people as his wife’s
mother and stepfather. Woodyard stated that defendant
gave him $50.00, and Woodyard told defendant he would
have to “get a hold of somebody” to do the job. The witness
and the defendant met on several other occasions and each
time the defendant questioned the witness about his prog-
ress. The defendant also supplied the witness with informa-
tion regarding the intended victims. Woodyard testified that
he never did try to contact anyone to do the job, but told
the defendant he would try to get Rocco and Stretch to
do it. Rocco and Stretch were men with whom the witness
was acquainted, but he did not know of instances when
they had held themselves out to be killers for hire. He fur-
ther testified that he never made any attempt to contact
Rocco and Stretch, and in fact, did not know where to
locate them.
Woodyard testified that on August 28th, he and the
defendant quarreled over the fact that nothing had been
done. The witness’ wife called the police, who arrived after
B-3
[APPENDIX]
defendant had left. At that time, the witness related the
events of the recent days. He went to the police station
where he attempted to arrange a meeting between defend-
ant and Lt. Hill, who would pose as Rocco. He was unsuc-
cessful.
On cross-examination, the witness testified that he
never, at any time, intended to participate in a killing, or
to locate Rocco and Stretch.
The State’s next witness was Jack Hill, a detective
with the Midwest City Police Department. He testified that
on August 28, 1974, he interviewed Don Woodyard at the
Midwest City Police Station, and that following that inter-
view he began an investigation. He testified that a call was
made to “Jim” at the number given by defendant! and that
he listened on the extension while Mr. Woodyard talked.
He testified that on each of the two following evenings, calls
were also made on the third evening he talked to “Jim,”
posing as Rocco. Finally, arrangements were made by
George Kriz for Detective Hill to meet defendant. After the
initial meeting at the Planet Bowl, the detective met de-
fendant again, approximately one hour later, at the home
of George Kriz, where defendant gave the detective a
twenty dollar bill and a drawing of the home of the in-
tended victims. At that time the defendant was arrested.
The jury then heard a taped recording of the conver-
sations between the defendant and Don Woodyard and the
telephone conversation between the defendant and Detec-
tive Hill as Rocco.
The State then presented the testimony of Ann Buck,
the defendant’s mother-in-law. She testified that she had
testified against her daughter and the defendant in a cus-
tody hearing regarding her grandchildren.
1 The officer testified at one point that Mr. Woodyard made the call, and
at another point that he made the call himself.
B-4
[APPENDIX]
The next witness was Harry F. Buck, the stepfather
of defendant’s wife. He testified to several conversations
with defendant, all arising from the litigation surrounding
the custody of the children of defendant’s wife. He also
testified that the tag numbers given Don Woodyard cor-
responded, in some respects, to those on cars he owned.
The State’s next witness was Oleta Stewart, the mother
of the defendant. She testified that she was with defendant
on the evening of August 12th, the date he allegedly met
with George Kriz and Don Woodyard. She testified that
she accompanied her son several times but did not know
the names of the individuals he met, nor the addresses.
The next witness for the State was Ella Reale, who
testified she was a private investigator who followed Mr.
and Mrs. Pearson to 1217 Ferguson, in Midwest City, on
August 13, 1974. She then followed them to 516 Shortway,
then to 421 Bowman, then back to their home, where Mr.
and Mrs. Pearson changed cars and returned to 516 Short-
way.”
The State then rested. The defense rested without call-
ing any witnesses.
The defendant first argues that the court erred in over-
ruling his demurrer to the evidence, his motion to dismiss,
and his motion for directed verdict. In his brief, he argues
that he was “convicted of something that is not unlawful,
that is, a one-man conspiracy.” (Appellant’s brief, p. 6).
He bases his argument on two facts, (1) George Kriz did
not testify to an agreement to kill; (2) Don Woodyard testi-
fied he never intended to commit the murders or to commit
a felony.
2 It had been developed in the testimony of other witnesses that 1217
Ferguson was the home of George Kriz; 421 Bowen was the residence
of Don Woodyard; and it was not established who lived at 516 Short-
way.
— _ —
B-5
[APPEND!X}
We find sufficient evidence of a conspiracy to justify
submission of the question to the jury. George Kriz did
testify to an agreement with the defendant to aid him in
finding someone to “do a job,” although the specifics of the
“job” were not spelled out. George Kriz did, in fact, arrange
for defendant to meet Don Woodyard. In spite of Don Wood-
yard’s testimony, the fact remains that Woodyard did accept
money from defendant, he continued to discuss the plan
with defendant for a period of days (in fact, until he was
forced to admit the plan to the police), and give all out-
ward manifestations of entering the conspiracy. From the
time George Kriz agreed to put defendant in touch with
someone to “do a job,” a jury could reasonably find that a
conspiracy existed. By placing defendant in contact with,
Don Woodyard, and by defendant’s payment to Woodyard,
the second element, that of an act toward the end, was
accomplished.
In Hutchman v. State, 61 Okl. Cr. 117, 66 P.2d 99 (1937),
this Court stated:
“The courts of this country have often held that it
is not necessary that a conspiracy be proved by direct
testimony, in fact, conspiracies are seldom susceptible
to such proof. It is often proved by circumstances. We
call attention to the case of Mathews v. State, 19 Okl.
Cr. 153, 198 P. 112, 117 wherein the court says:
“*A conspiracy, leading up to the commission of the
crime charged need not be established by direct evi-
dence, but may and generally must be proved by a
number of independent acts, conditions, and circum-
stances. The very existence of a conspiracy is generally
a matter of inference deduced from certain acts of the
persons accused, done in pursuance of an apparently
crimina! or unlawful common purpose.
“It is not necessary to prove that the conspirators
came together and actually agreed to pursue their pur-
pose by common means, one performing one part and
B-6
[APPENDIX]
another another. If one concurs in a conspiracy, no
proof of an agreement to concur is necessary to make
him guilty... .’”
See, also, Henderson v. State, Okl. Cr., 385 P.2d 930 (1963).
Accordingly, it was not error to submit the case to the
jury based on the evidence presented by the State. Further,
there is sufficient evidence from the testimony of Kriz and
Woodyard for a jury to make a determination of guilt. We
have repeatedly held that where there is conflict in the
evidence, or the evidence is such that different inferences
may be drawn, this Court will not interfere with a jury’s
determination on the grounds of insufficiency to sustain a
conviction where there is competent evidence in the record
from which the jury might reasonably conclude the defend-
ant is guilty. See, for example, Hudson v. State, Okl. Cr.,
399 P.2d 296 (1965); Stanford v. State, 450 P.2d 234 (1969);
Mitchell v. State, Okl. Cr., 467 P.2d 509 (1970). We would
note that defendant presented no other evidence in his be-
half to further contradict the testimony of the State’s
witnesses. Defendant’s first assignment of error is without
merit.
For his second assignment of error, defendant submits
that the tape recording admitted by the court is incom-
petent, irrelevant and prejudicial. In his argument support-
ing this contention he cites authority which goes to the
legality of the method of obtaining the recording. The tape
recording admitted by the court consists of a statement
made at the Midwest City Police Station by Don Woodyard
and of a conversation between Don Woodyard, defendant,
and Detective Hill acting as “Rocco.” There is nothing on
this tape which was not testified to by either Detective Hill
or Don Woodyard.
Defendant relies on Cameron v. State, Okl. Cr., 365
P.2d 576 (1961) for the authority that evidence obtained
by a telephone recording done without the knowledge and
B-7
[APPENDIX]
consent of one party to a conversation could not be admitted
against him. That case contains a full and complete discus-
sion of the Oklahoma statute and law on point, and under
the rule of that case, that portion of the tape recording
which contained the telephone conversation between de-
fendant and the witnesses was inadmissible. However, de-
fendant’s reliance on Cameron as requiring reversal is
misplaced. The Cameron case involved a conviction for per-
jury, which requires the testimony of two witnesses, or
the testimony of one credible witness coupled with other
corroborating evidence. The inadmissible taped conversa-
tion was the corroboration in Cameron, and without it, the
State could not make its case, so reversal was required.
In the case at bar a different situation arises. The taped
conversation adds nothing new to the proof. It is merely
cumulative. While its admission was error, it is not reversi-
ble error. This Court has held on numerous occasions, most
recently in Constabile v. State, Okl. Cr., 513 P.2d 588 (1973),
that admission of evidence which is merely cumulative will
not be held reversible error even though the evidence is
inadmissible. See, also, Copus v. State, 26 Okl. Cr. 366, 224
P. 364 (1924); Allcott v. State, 55 Okl. Cr. 128, 25 P.2d 1112
(1933); Young v. State, Okl. Cr., 373 P.2d 273 (1962). Ac-
cordingly, defendant’s second assignment of error is with-
out merit.
Lastly, defendant contends that the court failed to
adequately instruct the jury by refusing to give certain
instructions and by the giving of others. This assignment of
error is also without merit. A careful reading of the instruc-
tions given the jury show that taken as a whole, they set
forth the law of the State of Oklahoma regarding con-
spiracy. Defendant’s requested instructions are not sup-
ported by Oklahoma case law. Further, even if support
could be found for defendant’s contentions in Oklahoma
law, it is not necessary that the court instruct the jury in
precisely the language requested by defendant. It is enough
B-8
[APPENDIX]
if the court instructs on the general principle of the law of
the case. See Trowbridge v. State, Okl. Cr., 502 P.2d 495
(1972), citing with approval Butler v. United States, 197
F.2d 561 (10th Cir.).
For all of the above and foregoing reasons, the judg-
ment and sentence appealed from is AFFIRMED.
Appeal from District Court, Oklahoma County; Car-
mon C. Harris, Judge.
JACK O. PEARSON was convicted for the offense of
Conspiracy to Commit Murder; was sentenced to two (2)
years imprisonment and a $500.00 fine; and appeals. AF-
FIRMED.
D. C. Thomas, Oklahoma City, attorney for appellant
Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty.
Gen., Joe Mark Elkouri, Legal Intern, attorneys for
appellee.
BRETT, P. J., concurs in results.
BLISS, J., concurs.
APPENDIX C
FILED
In the Court of Criminal Appeals
of the State of Oklahoma
MARCH 7, 1977
Ross N. LILLARD, JR.
CLERK
IN THE COURT OF CRIMINAL APPEALS OF
THE STATE OF OKLAHOMA
JACK O. PEARSON, )
Appellant, )
-VSs- ) No. F-75-430
)
THE STATE OF OKLAHOMA, )
Appellee. )
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that Jack O. Pearson, the Ap-
pellant above named, hereby appeals to the Supreme Court
of the United States from the final judgment of the Court of
Criminal Appeals for the State of Oklahoma, affirming the
judgment of the conviction, said Order entered herein on
December 22, 1976.
This appeal is taken pursuant to 28 U.S.C. §1257(1) (2).
Respectfully submitted,
s/ Stephen Jones
Stephen Jones
Attorney for Appellant
CERTIFICATE OF MAILING
This is to certify that a true and correct copy of the
foregoing Notice of Appeal was mailed to Larry Derry-
berry, Attorney General, State Capitol Building, Oklahoma
C-2
(APPENDIX)
City, Oklahoma, and Andrew Coats, District Attorney.
Oklahoma County Courthouse, Oklahoma City, Oklahoma,
73102, on this 3rd day of March, 1977.
s/ Stephen Jones
Stephen Jones
APPENDIX D
FILED
In Court of Criminal Appeals
of the State of Oklahoma
DEC 20 1976
Ross N. LILLARD, JR.
CLERK
IN THE COURT OF CRIMINAL APPEALS OF
THE STATE OF OKLAHOMA
JACK O. PEARSON, )
Appellant, )
-VS- ) No. F-75-430
)
THE STATE OF OKLAHOMA, )
)
Appellee. )
ORDER DENYING PETITION FOR REHEARING,
DENYING MOTION TO STAY MANDATE AND
DIRECTING ISSUANCE OF MANDATE FORTHWITH
NOW, on this 20th day of December, 1976, the Court
having examined the Petition for Rehearing and Motion to
Stay Mandate filed in the above styled and numbered
cause, and after complete examination of the record finds
that the Petition for Rehearing should be DENIED.
The Court further finds that the Motion to Stay Man-
date should be DENIED, and the Clerk of this Court is
directed to issue the Mandate FORTHWITH.
IT IS SO ORDERED.
WITNESS OUR HANDS, and the Seal of this Court,
this 30th day of December, 1976.
s/ Tom Brett
TOM BRETT, PRESIDING JUDGE
D-2
[APPENDIX]
s/ Hez J. Bussey
HEZ J. BUSSEY, JUDGE
ATTEST:
s/_ Ross N. Lillard, Jr.
CLERK
[Seal]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.