State v. McCain

28 P.3d 641 (2001) 175 Or. App. 274

STATE of Oregon, Respondent,
v.
Janis Ellen McCAIN, Appellant.

94CR-0190TM; A85562

Court of Appeals of Oregon.

Submitted on Remand May 11, 2001. Decided July 5, 2001.

Sally L. Avera, Public Defender, and James N. Varner, Deputy Public Defender, for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Jonathan H. Fussner, Assistant Attorney General, for respondent.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.

PER CURIAM

This case is before us on remand from the Supreme Court for reconsideration in light of its decision in State v. Fleetwood, 331 Or. 511, 16 P.3d 503 (2000). Defendant was convicted of conspiracy to commit possession of a controlled substance. Over defendant's objection, the trial court admitted into evidence audio recordings of face-to-face and telephone conversations involving defendant, defendant's boyfriend and codefendant, a police informant, and police detectives who were working undercover as cocaine dealers. The trial court's ruling admitting the recordings, which had not been authorized by court order, was error. Id. at 529-30, 16 P.3d 503.

The state asserts that the error was harmless, because the detectives who participated in the conversations testified to the same effect at trial. Defendant's defense was that she was not involved in a conspiracy to purchase cocaine. We cannot say that the trial court's error in admitting 12 audio tapes, which were played to the jury throughout the trial and during closing arguments, had little if any likelihood of affecting the verdict. State v. Carr, 302 Or. 20, 27, 725 P.2d 1287 (1986).

Reversed and remanded.