State v. Cecconi, 012121 ORCA, A164297

Docket Nº:A164297, A164298, A164299
Opinion Judge:EGAN, C. J.
Party Name:STATE OF OREGON, Plaintiff-Respondent, v. CHRISTOPHER A. CECCONI, aka Christopher Angelo Cecconi, Defendant-Appellant.
Attorney:Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General,...
Judge Panel:Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
Case Date:January 21, 2021
Court:Court of Appeals of Oregon

308 Or.App. 534

STATE OF OREGON, Plaintiff-Respondent,

v.

CHRISTOPHER A. CECCONI, aka Christopher Angelo Cecconi, Defendant-Appellant.

A164297, A164298, A164299

Court of Appeals of Oregon

January 21, 2021

Submitted February 12, 2019

Multnomah County Circuit Court 15CR19090, 15CR54291, 16CR47326; Jerry B. Hodson, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, fled the brief for respondent.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

[308 Or.App. 535]

[308 Or.App. 536] EGAN, C. J.

Defendant was charged with felony assault in the fourth degree-constituting domestic violence, ORS 163.160(3) and ORS 132.586; assault in the fourth degree, ORS 163.160; harassment, ORS 166.065; and criminal mischief in the second degree, ORS 164.354, in association with an alleged attack on J, the mother of his child. Defendant entered a conditional guilty plea to those charges after the trial court ruled that the state would be allowed to introduce hearsay evidence (consisting of J's testimony relating to a probation violation hearing) under OEC 804(3)(a), the former testimony exception to the rule against hearsay, and OEC 804(3)(g), the forfeiture-by-wrongdoing exception. After defendant entered that guilty plea, the court revoked his probation in two other cases based, in part, on the new criminal convictions. Defendant appeals both the judgment of convictions (16CR47326) and the probation revocation judgments in the other two cases (15CR19090 and 15CR54291).[1] We conclude that the court erred in deeming the hearsay evidence as admissible because the state did not establish that J was "unavailable," as required by both OEC 804(3)(a) and OEC 804(3)(g). Accordingly, we reverse and remand Case No. 16CR47326 so that defendant may have the opportunity to withdraw his plea, if he so chooses. As to defendant's probation revocation judgments, we reverse and remand Case No. 15CR54291 and affirm Case No. 15CR19090.

The underlying facts are undisputed, except where otherwise noted. The events that gave rise to defendant's new convictions occurred on July 31, 2016. Prior to that date, defendant had been convicted of previous crimes against J, and he was on probation for those convictions.[2] [308 Or.App. 537] Defendant, who had recently been released from jail, agreed to meet J in a parking lot to give her money for their son's birthday party. J went with two friends and was waiting for defendant in the backseat of the vehicle when-before she realized that defendant had arrived-defendant opened the door and started hitting and kicking her. J could not escape the attack because there were items that prevented her from reaching the door on the other side of the backseat. Defendant hit J "[a]nywhere he could pretty much punch." Defendant stopped attacking J, and then turned his attention towards her friends sitting in the front seat. At that point, J got out of the car and began calling for help.

J ran to a passing car and asked the driver to call the police. Defendant, who had chased after J, began hitting the driver of the passing vehicle and tried to take the driver's phone. Finally, another passerby intervened and restrained defendant on the ground until the police arrived. As a consequence of defendant's actions, J suffered a black eye and a "busted" lip, and she had to miss work for three days.

Defendant was arrested the same day and was indicted on August 8, 2016. His trial was initially scheduled for September 20. About two weeks before that scheduled trial date, the trial court held a probation violation hearing to consider an allegation that defendant had violated a no-contact order that was associated with one of his two previous convictions for crimes against J. J appeared at the probation violation hearing and testified under oath to the events that occurred on July 31.

At defendant's request, trial was rescheduled for November 28. On November 23, the state and defendant, with his defense attorney, appeared at "trial call." The state, believing that J was not going to appear for trial, affirmed that it was ready to proceed for trial, and requested the court to hear a pretrial motion regarding hearsay evidence that it sought to admit. The court held a hearing on the state's motion on November 28-the same day set for trial.

[308 Or.App. 538] The state called several witnesses in support of its position that J's hearsay statements were admissible. The state's first witness was a victim advocate, who had worked with J in relation to defendant's case. The victim advocate stated that she had had several conversations with J, and noted that J was hesitant to testify because she "felt like she had already testified at the [probation violation] hearing" and that she was "nervous about the amount of time that [defendant] might have to serve." J had also told the victim advocate that she "felt as though [the state] had already had a case that had gone through, and [the attack] had still happened again." That is, even though J "had the no-contact order" against defendant, that "had not stopped him from contacting her."

Further, on two separate occasions, J had told the victim advocate that she was not going to testify at defendant's trial. The state offered to provide transportation and childcare to J, which did not alleviate her unwillingness to appear. By the end of October, J had stopped answering her phone. Nevertheless, the victim advocate continued to call and leave voicemails for J to ensure that she knew when the trial was to occur.

The state also provided testimony from a subpoena clerk along with records supporting the efforts made by the subpoena clerk to secure J's testimony for trial. Prior to the first trial date that had been set for September 20, the state had used an investigator in an attempt to contact and serve J with a subpoena to require her appearance at trial. On five different occasions-August 2 and 31 and September 1, 2, and 6-an investigator went to J's house to serve her, but she did not answer the door. On August 2, the investigator left a subpoena on her front door. On September 6, the investigator personally served J with a subpoena to appear at the date initially set for trial-September 20. However, as noted above, defendant requested, and was granted, a continuance. After the trial was set over to November 28, the state attempted to personally serve J again on October 4 and 5. On both of those dates, an investigator surveilled J's house for 30 minutes but was unable to make contact with her. On October 6, J was personally served. Additionally, a copy of J's subpoena was mailed via "certified return-receipt [308 Or.App. 539] request" to J notifying her of the trial date, which was received, signed, and returned by J's mother. However, at the time the state received the certified return receipt on November 10, the state believed that it was from J.

Finally, the state offered evidence of recordings of over 20 jail calls between defendant and J and played three of those calls for the court. The first two calls occurred on August 2. In a portion of the first call between defendant and J, defendant stated what he planned on doing to J the next time he saw her: "[DEFENDANT]: ***. Well, it don't matter, nigger. Period. You already know why, because (indiscernible) dumb shit. But I'll do it again, too. I don't give a fuck.

"[J]: Are you serious?

"[DEFENDANT]: (Indiscernible) if you don't want that to happen to you, then don't-then, leave me alone, because if-because any of my bitches want to act out of line, they're getting slapped, fucked, taken that head, whatever. It don't matter.

"[J]: So if you see me again, you're going to do it again?

" [DEFENDANT]: I don't-If I seen you right now this second, I would do it again, yeah.

"[J]: Do you not listen to how crazy you sound?

"[DEFENDANT]: And I'll probably-by the time whenever I get out, whether-I don't know, months, years, whatever, probably by the time I get out and after I hear about everything you been doing, I probably would do it again, so, yeah. You probably should just leave me alone. Probably do it way worse, too, somewhere where no's going to stop nothing, somewhere where we're in close, somewhere where I'm going to whoop your ass. Bad."

In the second call, defendant worked to convince J to not testify by telling her that, if she did not testify, it is likely that he would be released. The conversation went, in part: "[DEFENDANT]: Are you going to court?

"[J]: Probably.

"[DEFENDANT]: Why?

[308 Or.App. 540] "[J]: Why would I not?

"[DEFENDANT]: All right, then, maybe just don't talk to me, bro. I'm not going to talk to you no more-

* * * *

"[DEFENDANT]: Don't matter. I have the right- that's law, I have the right to face my accuser, nigger. If my accuser don't come, it's the law that I don't go to jail. If I shoot someone in the face, and there's 50 witnesses and the person I shot in the face don't come, I don't come-it's just harder to drop. Niggers get shot all the time-

* * * *

"[J]: If I don't press charges you get to go out-

* * * *

"[DEFENDANT]: Yeah, but-but you have to help the D.A. for them to press charges. You have to work with them."

Finally, the third call played by the state took place on September 30, 2016, after the probation violation hearing at which J had testified. Defendant asked J, "What are you going to do on Sunday?" J replied that she was "staying at [her]...

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