dissenting.
The majority accepts defendant’s argument that the hearsay testimony concerning defendant’s alleged admissions and the admissions of his coconspirator (Whitney) inculpating defendant were “so inherently prejudicial that they should not have been received in evidence.” I disagree. For reasons which follow I believe the trial judge did not err in receiving the challenged testimony.
It seems to me that the majority has in effect nullified a key provision of the Oregon conspiracy statute applicable at that time, former ORS 41.900(6) (repealed effective January 1, 1982). Additionally, the majority is usurping the function of the jury in this case.
Former ORS 41.900(6) provided:
“Evidence may be given of the following facts:
* * * *
“After proof of a conspiracy, the declaration or act of a conspirator against his co-conspirator, and relating to the conspiracy.
<<* * * *
*367In my view the challenged testimony comes squarely within the terms of the above provision.1 State v. Keller, 143 Or 589, 21 P2d 807 (1933); State v. Garrison, 16 Or App 588, 602, 519 P2d 1295 (1974).
The incriminating statements involved in Garrison were quite similar to those in the case at bar. In Garrison, defendant and another young man named Deaver strangled the victim and made off with his valuables. There was testimony that after the murder, and during the course of the conspiracy, Deaver gave the victim’s watch arid belt to a neighbor in his apartment building to conceal; that Deaver told the neighbor that he and the defendant had taken the victim out in the country and strangled him. Deaver repeated this statement to another neighbor later in the evening while they were going downtown with the stolen watch in an effort to raise bail money for defendant. Deaver did not testify. We held that Deaver’s statements incriminating defendant were admissible under ORS 41.900(6) and numerous other authorities cited in that opinion, although not made in defendant’s presence.
The majority rests its opinion primarily on the federal and state Confrontation Clauses. The United States Supreme Court recently considered the relationship between the federal Confrontation Clause and the rule against hearsay in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980). I cannot agree with the majority’s application of the Roberts rule. Roberts sets out a two-step analysis. First, the necessity of the hearsay declaration must be assessed, second, the reliability or trustworthiness of the declarations must be examined. In the case at hand, the necessity factor was satisfied. The hearsay declarant, Whitney, was unavailable because of his intended Fifth Amendment assertion. As such, the use of the hearsay declarations of Whitney concerning what defendant *368told him in private, was necessary from an evidentiary point of view. Thus, the record adequately demonstrates the necessity of the statements.2
The second factor of Roberts, namely reliability or trustworthiness also has been satisfied. Whitney had personal knowledge of the identity and role of participants in the conspiracy. Whitney was present at the shooting itself and was present during the conversations with defendant. Whitney’s declarations to Freer and Fouts were made either immediately or shortly after each conversation with defendant. Defendant’s assertion that Whitney’s ability to recollect was impaired by Whitney’s use of cocaine during the critical times ignores the fact that defendant himself testified that he had private conversations with Whitney during this period. Defendant confided in few other persons concerning the lost cocaine and tried to maintain secrecy. Would defendant have confided in someone he felt was so high on drugs that he could not function properly? Obviously not. Furthermore, Whitney’s declarations made to different persons at different times were consistent. There is no apparent reason for Whitney to lie about his agreement with defendant. Indeed, his statements to Freer and Fouts concerning his involvement in a conspiracy with defendant were plainly against his penal interest — a universally recognized indicia of reliability.
The statements made by Whitney cited in the majority opinion were not made in some “bargaining process” with the police. The statements made to Fouts were in fact made prior to the killing of Foss. They were not made in an after-the-fact effort to lay blame on another. Additionally, while the credibility of accomplices who testify or provide information to police ought to be viewed with distrust, ORS 17.250(4), the same does not apply to statements made by an accomplice to his friends. Here, Whitney’s statements were not made in court or to the police in an effort to mitigate the consequences of his acts. Whatever reasons one might have for lying to police or a jury do not apply to the statements made by Whitney.
*369The majority finds strange the state’s theory that defendant would pay $14,000 to kill Foss when he owed Foss only about $20,000. Perhaps that is strange, but it was for the jury to decide. Indeed, defense counsel stressed this apparent incongruity in his argument to the jury.
The two in-court witnesses, -Freer and Fouts, who testified concerning Whitney’s statements were subject to cross-examination. Whether they were telling the truth or accurately recalling the conversations with Whitney was a question for the jury.
Unlike in many criminal trials, in the present case defendant took the stand and gave his own version of the affair, including his dealings with Whitney. He denied his involvement in a conspiracy and his alleged conversations with Whitney. The jury apparently chose not to believe him.
In the end, the primary concern of our inquiry must be to determine whether the unavailability of Whitney deprived the jury of a satisfactory basis for evaluating the truth of Whitney’s declarations. In the present case, I find that the challenged declarations by coconspirator Whitney relating to the conspiracy possess more than sufficient “indicia of reliability” to satisfy constitutional requirements.
Finally, the majority, it seems to me, ignores or disregards the fact that the trial judge carefully instructed the jury concerning the cautions to be observed in considering testimony regarding defendant’s admissions. The text of that instruction is set out in the margin.3 In addition, *370defendant took the stand and had full opportunity to deny and/or explain the challenged testimony.
In the final analysis the weight to be given the challenged testimony is peculiarly a question for the jury under proper instructions. The majority’s reasons for overturning the verdict really boil down to a jury-type argument to demonstrate why the challenged testimony was untrustworthy. In my judgment an appellate court usurps the function of the jury when it sets aside a verdict in a case of this type on the ground put forward in the majority opinion.
I would affirm.
Richardson, J., joins in this dissenting opinion.The parallel provision of the new Oregon Evidence Code, Rule 801, (4)(b)(E), provides as follows:
“Admission by party-opponent. The statement is offered against a party and is:
*****
“A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”
The record is silent as to any misconduct on the part of the prosecutor in the introduction of the hearsay statement. See State v. Herrera, 286 Or 349, 594 P2d 823 (1979).
The court instructed the jury:
“Testimony regarding oral statements of the defendant are to be viewed with caution, for the defendant may have been misinformed or may not have clearly expressed the meaning, or the witness may have misunderstood him, or it may be that the witness who testifies to the statements, by intentionally or inadvertently altering a few of the expressions really used, gives an effect to the statement completely at variance with what the defendant actually did say. On the other hand, if you can say from the evidence that the alleged statements were clearly and understandingly made by the defendant, that they are precisely identified, and that the language is correctly remembered and accurately reported by the witness, you are authorized to consider such statements for what you deem them to be worth against the defendant making them. But in reaching such a result you must, for the reasons given, proceed with caution.”