State v. Moore , 159 Or. App. 144 ( 1999 )

DE MUNIZ, J.

Defendant appeals his convictions on one count of fourth-degree assault, ORS 163.160, and three counts of recklessly endangering another person. ORS 163.195. The issue on appeal is whether the testimony of a police officer and two other witnesses repeating the hearsay statements made by the victim declarant should have been admitted in evidence. We hold that the testimony should not have been admitted and reverse and remand for a new trial.

Defendant’s convictions stem from an incident on Christmas Day 1996. Defendant was traveling from Tualatin to Gresham in a Ford Explorer to visit his ex-wife. His fiancee, Norine Olea, was driving. Defendant was in the back seat with their daughter and her half-sister. He was not driving because he had been drinking. He was arguing with Olea about his ex-wife. Defendant testified that Olea pulled into a 7-11 parking lot where defendant tried “to grab for the keys.” When Olea tried to prevent him from getting the keys, defendant accidentally hit her in the face with his elbow. He testified that she then jumped out of the vehicle while it was still moving. Defendant then attempted to climb over the seats to stop the vehicle. The vehicle stopped in a landscaped island in or near the parking lot. After the vehicle came to rest, a man pulled defendant from the vehicle. Two men then held defendant on the ground until the police arrived.

According to a state’s witness, Deborah Narro, Olea ran into the 7-11, “crying and shaking,” and said, “He’s taking my kids, and he’s been drinking,” and asked for help. Mr. Narro, who was also in the 7-11, ran out to the vehicle as defendant was getting out. Narro testified that defendant took a swing at him. When Officer Hucke of the Gresham Police Department arrived at the scene, he observed that Narro and another man had defendant pinned on the ground. Hucke believed defendant was intoxicated and placed him in the patrol car. Hucke then interviewed Olea in the store where he observed that she had a large red mark on the side of her eye and was “extremely distraught.”

The rest of Hucke’s testimony, all of it hearsay attributed to Olea, along with the Narros’ hearsay evidence, is the subject of this appeal. The court originally ruled in limine that all of Hucke’s testimony was admissible within the excited utterances exception to the hearsay rule. OEC 803(2). However, at that time, it was apparently not made clear to the court that not all of the statements Hucke was attributing to Olea were made in the immediate aftermath of the incident. Hucke later testified that he had asked Olea only “basically just some preliminary questions” at the 7-11, and that then she asked to go to a private place to feed her baby. Hucke took Olea and the two children to defendant’s ex-wife’s residence where he took her statement. There “[s]he calmed down” and “related in more detail how she had been struck.” At this point, defendant objected, based on the Oregon Evidence Code, and the court conducted a hearing outside the presence of the jury to try to determine what testimony related to statements made at the 7-11 and what testimony related to the subsequent interview. At the conclusion of the hearing, the court allowed Hucke to testify in front of the jury that Olea told him:

“She was driving a car, when she was struck with a Christmas package. And throughout some period of time unknown to me, she was also punched.”

Defendant argues that the trial court erred when it denied his motion in limine to exclude all hearsay statements by the three witnesses, because admission of the statements violated his right to confront witnesses against him, as guaranteed by Article I, section 11, of the Oregon Constitution. We review the issue as a matter of law. State v. Campbell, 299 Or 633, 648, 705 P2d 694 (1985).

Because we do not reach constitutional questions unless they are necessary to decide a case, ordinarily we consider questions under state statutes before reaching the state constitution. State v. Jensen, 313 Or 587, 592, 837 P2d 525 (1992). However, here, we must reach the constitutional issue to decide the admissibility of some of the challenged evidence,¹ and, because the constitutional issue is the same for all of the disputed hearsay statements, we begin with that issue.

Defendant first argues that, even if Olea’s statements otherwise qualified as excited utterances, the admission of those statements without a showing of Olea’s unavailability violated constitutional confrontation protection. That is, although the rule purports to allow the admission of such statements regardless of the declarant’s availability, such admission runs afoul of Article I, section 11, of the Oregon Constitution:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.”

In Campbell, the Oregon Supreme Court considered whether the introduction of hearsay under OEC 803(18a) violated the defendant’s right to confrontation under the Oregon and federal constitutions. In holding that the defendant’s right to “meet the witnesses face to face” had been violated, the court stated that:

“[Bjefore any out-of-court declaration of any available living witness may be offered against a defendant in a criminal trial, the witness must be produced and declared incompetent by the court to satisfy either Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution.” 299 Or at 652 (footnote omitted).

More recently, in State v. Kitzman, 323 Or 589, 920 P2d 134 (1996), the Supreme Court, relying on its own reasoning in Campbell, held that, under OEC 803(18a)(b), hearsay statements cannot be admitted against a criminal defendant unless the declarant is found by the trial court to be unavailable:

“In other words, in a criminal proceeding, if a living witness is not declared incompetent by a trial court, and that witness’ hearsay statements are admitted at trial as evidence against the defendant, the defendant’s rights under Article I, section 11, of the Oregon Constitution, are violated. It follows that, when the state sought to introduce such hearsay statements, the unavailability of the declarant first must be shown, in order to secure the defendant’s rights under Article I, section 11.” Id. at 605 (footnotes omitted).

Defendant points out that, in State v. Jensen, 107 Or App 35, 40, 810 P2d 865 (1991), aff'd in part and rev’d in part 313 Or 587, 837 P2d 525 (1992), we applied the Campbell logic to OEC 803(2) and concluded that, under Article I, section 11, of the Oregon Constitution, excited utterances could not be admitted against a criminal defendant unless the declarant is found to be unavailable by the court. That part of our holding was reversed by the Supreme Court on its determination that the defendant had not properly preserved the issue for appellate review. Here, however, the issue is properly preserved, and defendant argues that the same reasoning that we applied in Jensen applies equally here. We agree.

The state concedes that it did not establish or attempt to establish that Olea was unavailable. However, the state urges us not to extend the Campbell logic to OEC 803(2) on the ground that the language in Campbell closely follows that of a United States Supreme Court opinion, Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980), and that, since that time, the United States Supreme Court has considerably narrowed the scope of Roberts in cases such as United States v. Inadi, 475 US 387, 106 S Ct 1121, 89 L Ed 2d 390 (1986), and White v. Illinois, 502 US 346, 112 S Ct 736, 116 L Ed 2d 848 (1992). In White, the Court distinguished the hearsay statements at issue in Roberts, which involved a Confrontation Clause challenge to admission of a transcript of testimony in a probable cause hearing from excited utterances and statements made for the purpose of medical diagnosis, and concluded that the latter’s spontaneous nature and setting provided a substantial degree of reliability that “cannot be recaptured even by later in-court testimony.” White, 502 US at 356. The Court concluded that there was not a sufficient threat of lost evidentiary value with excited utterances under the Confrontation Clause to require them to be buttressed or replaced by in-court testimony.²

From this, the state argues that it follows that we should narrow our interpretation of the Supreme Court’s holding in Campbell. We reject the state’s reasoning. The Supreme Court did not say in Campbell that, from that point on, Oregon law would mimic the ebb and flow of federal law decisions in the area of hearsay evidence. Rather, the court, in determining a matter of Oregon law, found Roberts to be cogent. Nothing in Campbell supports the extraordinary proposition that the Oregon Supreme Court delegated to the United States Supreme Court the competence to determine matters of Oregon constitutional law. It may be that, on review, the Oregon Supreme Court could find White to be persuasive and, consequently revise Campbell and Kitzman. But unless, or until, the court does so, Campbell, with its incorporation of Roberts’ rationale, and Kitzman, reiterating that reasoning, remain the law of Oregon.

Here, the state made no showing that Olea was unavailable to testify. In State v. Herrera, 286 Or 349, 358, 594 P2d 823 (1979), the Supreme Court held that, if the state wishes to introduce evidence that denies a defendant his constitutional right to confront witnesses, then the state must justify its use. In other words, the burden is on the state here to show that the declarant was unavailable, which it concedes it did not do. The trial court erred in allowing all of Olea’s hearsay statements into evidence because admission of the statements violated defendant’s right to confront witnesses against him, as guaranteed by Article I, section 11, of the Oregon Constitution.

Because defendant’s first assignment of error is dis-positive, we do not address his remaining ones.

Reversed and remanded for new trial.

1 Defendant concedes that Mrs. Narro’s statement at trial that Olea said, “He’s taking my kids, and he’s been drinking,” would be admissible under OEC 803(2) and that Mr. Narro’s hearsay testimony merely repeats that of his wife, so it would be harmless. He also concedes that some of Hucke’s hearsay testimony is probably admissible under the statute but argues that all of his testimony is inadmissible under the confrontation clause of the Oregon and federal constitutions.

2 The state also notes that, in White, 502 US at 353-54, the Court stated:

“In the course of rejecting the Confrontation Clause claim in [Roberts], we used language that might suggest that the Confrontation Clause generally requires that a declarant either be produced at trial or to be found unavailable before his out-of-court statement may be admitted into evidence. However, we think such an expansive reading of the Clause is negated by our subsequent decision in [United States v. Inadi, 475 US 387, 106 S Ct 1121, 89 L Ed 2d 390 (1986)].”