State v. Campbell, s. CC

CourtSupreme Court of Oregon
Citation705 P.2d 694,299 Or. 633
Docket NumberNos. CC,s. CC
PartiesSTATE of Oregon, Respondent on review, v. Robin Keith CAMPBELL, Petitioner on review. 10-81-02891; 10-81-02892/CA A26455/SC S30758.
Decision Date20 August 1985

Page 694

705 P.2d 694
299 Or. 633
STATE of Oregon, Respondent on review,
v.
Robin Keith CAMPBELL, Petitioner on review.
Nos. CC 10-81-02891; 10-81-02892/CA A26455/SC S30758.
Supreme Court of Oregon,
In Banc.
Argued and Submitted March 7, 1985.
Reassigned Aug. 14, 1985.
Decided Aug. 20, 1985.

Page 695

[299 Or. 634A] David E. Groom, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Salem, Public Defender.

Virginia Linder, Asst. Sol. Gen., Salem, argued the cause for respondent on review. With her on the brief was Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Marc D. Blackman, Portland, filed a brief amicus curiae on behalf of the ACLU Foundation of Oregon, Inc. With him on the brief was Ransom, Blackman & Simson, Portland.

Michael C. Sullivan, Madras, Michael D. Schrunk, Portland, and Dianne L. Middle, Salem, filed a brief amicus curiae on behalf of the Oregon Dist. Attys. Ass'n.

Stephen J. Williams, Deputy Public Defender, Salem, filed a brief amicus curiae on behalf of the Oregon Criminal Defense Lawyers Ass'n.

[299 Or. 635] JONES, Justice.

This is a review of a criminal conviction. The issue is whether hearsay testimony by the mother of a three-year-old declarant who is the alleged victim of sexual abuse is admissible in evidence. We hold that under the facts of this case part of the testimony

Page 696

was admissible and part not if the defendant's confrontation rights are satisfied.

Defendant was convicted after a non-jury trial of two counts of Sodomy in the First Degree 1 based upon a written confession of the defendant and the testimony of the mother of the victim relating to the court the child's statements made later in the same day that the abuse allegedly occurred.

The mother testified that defendant was the babysitter for her children on March 20, 1981. Defendant and the witness's (the mother's) daughter were alone from 8:30 a.m. until noon. At that time, the witness's son returned from school. Defendant and the two children were alone until 4:10 p.m., at which time the mother returned home from work. At approximately 5 p.m., after defendant had left, mother and daughter had a conversation which mother related to the court:

"A. I asked [my daughter] 'Well, what did you do today?' * * * 'Did you have fun today' or--that type of prequestion. And she said, 'Robin [defendant's first name] takes my clothes off every day.'

"Q. All right.

"A. And when I got my breath I said, 'Well, that's a silly [299 Or. 636] thing to do.' And I says, 'Why does he do that?' And she says--oh, no. No. She says, 'He swings me around and stuff.' and I said, 'Oh!'

"And then she dropped her head a little bit and 'He licks my tee-tee.' " 2

This testimony was admitted under OEC 803(24), the residual exception to the hearsay rule, over objection by defendant. The defendant's taped confession had been previously received. The relevant portions of the defendant's confession are as follows:

"[Police Officer]: Okay, will you make a voluntary statement regarding the incidents?

"[Defendant]: Yes.

" * * *

"[Police Officer]: Okay. Would you tell me where this occurred at.

"[Defendant]: In the recliner chair in the front room.

"[Police Officer]: Okay, do you know the address? Of the house?

"[Defendant]: 650 River Road.

"[Police Officer]: Okay, and can you tell me in your own words what your capacity at that house was at the time?

" * * *

"[Defendant]: Babysitting.

" * * *

"[Police Officer]: Okay. Can you tell me in your own words on Monday, March 2nd, what occurred and at approximately what time.

"[Defendant]: Well about 11:00 a.m., Bethany got on my lap and, uh, she says, 'I have a tee-tee' as she refers to it and she pulled down her pants and said 'see' and then I said, 'Let me see' and then, uh, pulled her pants off of her and....

" * * *

"[Defendant]: And then I, uh, proceeded to lick her tee-tee.

[299 Or. 637] "[Police Officer]: Okay. Which, okay now you are referring to her vaginal area?

"[Defendant]: As she calls it.

" * * *

"[Police Officer]: Okay, explain to me how you did that.

Page 697

"[Defendant]: Well, I had my hands around her waist and I pulled her up to my face.

"[Police Officer]: Okay. Okay, for approximately how long did you do that to her?

"[Defendant]: Approximately two or three minutes.

"[Police Officer]: Okay. Then to Monday, March the 9th, would you explain that to me?

"[Defendant]: Well, the same as the other time and all, all of them happened at eleven o'clock in the morning and we was watching TV at the time.

" * * *

"[Defendant]: And then I grabbed her by the waist and pulled her up to my face.

"[Police Officer]: Okay and what did you do at that point?

"[Defendant]: Licked her vaginal area.

"[Police Officer]: Okay, for approximately how long?

"[Defendant]: For two to three minutes.

"[Police Officer]: Okay. Referring to Monday, March 16th, will you explain that one to me please?

"[Defendant]: Okay. She got onto my lap again, and uh, she uh, said the same thing as she did before, 'I've got a tee-tee, how come you haven't', and she pulled down her pants and said, 'See, what I have' and I said 'let me see' and then I pulled her pants off of her and her panties and pulled her to my face and proceeded to lick her tee-tee.

"[Police Officer]: For approximately how long?

"[Defendant]: Two to three minutes.

"[Police Officer]: Okay. Okay, Friday, March the 20th, would you explain that one for me?

"[Defendant]: Okay, it was, uh, uh, the same thing. She got up on my lap again and she said, 'I've got a tee-tee, how come you haven't got one', she pulled down her pants real quick and pulls them back up and says, 'See' and I pulled it [299 Or. 638] down and says, 'Let me see' and grabbed her by the waist and proceeded to lick her vaginal area."

The Court of Appeals, 68 Or.App. 53, 680 P.2d 21, affirmed without opinion.

The mother's testimony in this case was hearsay because it was "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." OEC 801(3). Thus the testimony was not admissible unless it qualified as one of the exceptions to the hearsay rule set forth in OEC 803 or 804.

The trial judge admitted the testimony under OEC 803(24), which provides:

"The following are not excluded by [OEC 802], even though the declarant is available as a witness:

* * *

* * *

(24)(a) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(A) The statement is relevant;

(B) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(C) The general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence.

(b) A statement may not be admitted under this subsection unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that such statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it."

The Legislative Commentary to OEC 803(24) clarifies the purpose and scope of the residual hearsay exception in Oregon.

Page 698

It approves the holding in Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir.1961), admitting a copy of a local newspaper published over 50 years earlier containing an unsigned article describing a fire in the Dallas County Courthouse while it was under construction. The article was trustworthy because it was inconceivable that [299 Or. 639] a small town journalist would report a fire in the local courthouse if none in fact had occurred. The commentary disapproves the holding in Timber Access Ind. v. U.S. Plywood, 263 Or. 509, 503 P.2d 482 (1972), admitting a statement of the deceased purchasing agent of defendant that it was the agent's intention to purchase logs unconditionally from plaintiff. In Timber Access, this court deemed the statement trustworthy because the declarant was in a position to know the facts and ordinarily would not make a statement against his interest unless it was truthful. 263 Or. at 519-20, 503 P.2d 482.

The Legislative Commentary to OEC 803(24) states:

"Because exceptional cases like Dallas County may arise in the future, the Legislative Assembly adopted this residual hearsay exception in Rule 803 and a similar one in Rule 804[ (3)(f) ]. 3 It intends that these provisions be used very rarely, and only in situations where application of the hearsay rule and its other exceptions would result in injustice. These rules are not a broad grant of authority to trial judges to admit hearsay statements."

The passage above reserved to the legislature the authority to fashion new exceptions to the hearsay rule and expressly circumscribed the authority of the judicial system to create categories of hearsay which will be admissible under the residual exception. The authority of trial courts is limited to admitting hearsay very rarely in exceptional cases where the particular circumstances of the declarant and the out-of-court statement are demonstrably trustworthy. 4

[299 Or. 640] Although the parties and amici cite substantial authority to allow or disallow this type of testimony in child sex abuse cases under the residual sections of the code, counsel miss the main reason this testimony cannot be admissible under the

Page 699

residual hearsay exception. That reason is that the legislature made a conscious decision to restrict unexcited hearsay declarations of sexual...

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