State v. Copeland

• Decision Date: 25 July 2013
• Docket Number: (CC 090647486,CA A143210,SC S060370).
• Citation: 306 P.3d 610,353 Or. 816
• Parties: STATE of Oregon, Respondent on Review, v. Edward Roger COPELAND, Petitioner on Review.
• Court: Oregon Supreme Court

353 Or. 816

306 P.3d 610

STATE of Oregon, Respondent on Review,

v.Edward Roger COPELAND, Petitioner on Review.

(CC 090647486; CA A143210; SC S060370).

Supreme Court of Oregon, En Banc.

Argued and Submitted March 8, 2013.

Decided July 25, 2013.

On review from the Court of Appeals.^*

Kali Montague, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review. With her on the brief was Peter Gartlan, Public Defender.

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

BREWER, J.

In this punitive contempt proceeding for violation of a Family Abuse Prevention Act (FAPA) restraining order, defendant challenges the admission in evidence of a deputy sheriff's certificate of service of the restraining order. Defendant asserts that admission of the certificate of service violated his confrontation right under Article I, section 11, of the Oregon Constitution, because the state did not establish that the declarant was unavailable to testify. Defendant also asserts that the document was “testimonial” evidence that was inadmissible under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The trial court concluded that the certificate was admissible despite defendant's constitutional objections, and, after defendant appealed from his ensuing conviction, the Court of Appeals affirmed. State v. Copeland, 247 Or.App. 362, 270 P.3d 313 (2011).

As explained below, we conclude that the out-of-court declaration made by the deputy sheriff who issued the certificate of service in the underlying FAPA proceeding here was not “witness” evidence that triggered defendant's confrontation right under Article I, section 11, because the certificate was an official record whose content was confined to a matter that the deputy sheriff was bound by an administrative duty to report, and it did not include investigative or gratuitous facts or opinions. In addition, we conclude that the certificate was not testimonial evidence under the Sixth Amendment. Therefore, we affirm the decision of the Court of Appeals and the judgment of the circuit court.

I. BACKGROUND

The pertinent facts, summarized from the Court of Appeals opinion, are few and undisputed. Defendant's then-wife, S, obtained a restraining order that prohibited defendant from coming within 150 feet of her home and other locations that she frequented, including the Savoy Tavern, where she worked. Id. at 364, 270 P.3d 313. The next day, Deputy Sheriff Schweitzer certified by written proof of service that he had personally served defendant with the restraining order that day. Several weeks later, S was working at the Savoy Tavern and noticed that defendant was seated at the bar of a restaurant across the street. She called the police. The responding officers determined that defendant was within 150 feet of the tavern and arrested him for violating the restraining order. Id. at 365, 270 P.3d 313.

The state charged defendant with punitive contempt under ORS chapter 33 for violating the restraining order.¹ The charging instrument alleged, in part, that defendant, “having received notice of [the restraining order] did * * * willfully enter * * * [and] remain at the area 150 feet from the Savoy Tavern” in violation of the restraining order. Id. (brackets and omissions in the original; emphasis omitted). At trial, the state offered the certificate of service as evidence that defendant had notice of the restraining order. Defendant objected, arguing that admission of the certificate of service without allowing him to confront Officer Schweitzer violated his state and federal constitutional confrontation rights. The state responded that the document was admissible under the official records hearsay exception, OEC 803(8), and therefore was not subject to the confrontation protections of Article I, section 11. As to the federal constitution, the state asserted that the certificate of service was not “testimonial” and thus defendant's Sixth Amendment confrontation right was not triggered. The trial court agreed with the state and admitted the evidence. Ultimately, the trial court found defendant in contempt of court, and imposed punitive sanctions.

Defendant appealed, renewing his constitutional objections to the admission of the certificate of service. In a written opinion, the Court of Appeals affirmed. First, the court rejected defendant's federal constitutional argument, citing its prior decision in State v. Tryon, 242 Or.App. 51, 59, 255 P.3d 498 (2011), where it had held that the admission of a return of service of a restraining order did not violate the defendant's right to confrontation under the Sixth Amendment because the evidence was not testimonial. Copeland, 247 Or.App. at 364 n. 1, 270 P.3d 313. Turning to the Oregon Constitution, the court concluded that, even though the confrontation guarantee in Article I, section 11, generally precludes the admission of hearsay evidence “unless the state establishes that (a) the declarant is unavailable to testify and (b) the statements bear ‘adequate indicia of reliability,’ ” id. at 366, 270 P.3d 313 (quoting State v. Campbell, 299 Or. 633, 648, 705 P.2d 694 (1985)), that guarantee does not apply to “certain ‘historical exceptions' corresponding to types of hearsay that ‘the framers of the Oregon Constitution would have understood * * * to have constituted an exception to the confrontation rights guarantee.’ ” Id. at 367, 270 P.3d 313 (quoting State v. William, 199 Or.App. 191, 197, 110 P.3d 1114,rev. den.,339 Or. 406, 122 P.3d 64 (2005)).

The court then noted that, in this case, defendant had acknowledged that some official records fall under an “historical exception” to the confrontation right, and that defendant had argued only that, in the context of official records, the historical exception pertained solely to proof of “collateral” matters. Id. at 366, 270 P.3d 313. Thus, the court concluded that “[t]he inquiry in this case reduces to whether the submission of a public record to establish an essential—as opposed to ‘collateral’—fact in a criminal proceeding falls within such an ‘historical exception’ to confrontation.” Id. at 367, 270 P.3d 313. Relying on its own prior case law, the court concluded that the official records exception to the state confrontation right applied equally to the proof of “essential” facts as it did to “collateral” facts. Id. at 369, 270 P.3d 313. In a concurring opinion, Judge Sercombe stated that he was “not sure that the analysis in William continues to be correct” in light of State v. Birchfield, 342 Or. 624, 157 P.3d 216 (2007), where this court held that the admission of a criminalist's laboratory report without either requiring the state to produce the criminalist at trial to testify or demonstrating that the criminalist was “unavailable” violated Article I, section 11. Copeland, 247 Or.App. at 370–71, 270 P.3d 313 (Sercombe, J., concurring).

On review, defendant does not dispute that the certificate of service was a qualifying official record under OEC 803(8). That rule provides, in part, that the following are excepted from the rule against hearsay, even though the declarant is available as a witness:

“Records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth:

“(a) The activities of the office or agency;

“(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, in criminal cases matters observed by police officers and other law enforcement personnel * * *.” ²

However, defendant asserts that the Court of Appeals erred in concluding that its admission did not violate his state and federal constitutional confrontation rights. As part of the “first things first” methodology, we consider state constitutional issues before we consider federal claims. Campbell, 299 Or. at 647, 705 P.2d 694.

With respect to Article I, section 11, defendant argues that the Court of Appeals incorrectly concluded that the confrontation requirement does not apply when hearsay evidence, although otherwise admissible as an official record, is offered to prove an “essential”—as opposed to collateral—fact in a criminal case. In this case, defendant contends, the certificate of service was essential to establish a prima facie case for contempt and, therefore, its admission was subject to the confrontation protections of Article I, section 11. In particular, defendant urges that the trial court erred in admitting the certificate of service in the absence of a showing that Officer Schweitzer was unavailable to testify.

In concluding that the evidence was admissible, defendant argues, the Court of Appeals made two mistakes. First, defendant argues that the court misapplied this court's decisions discussing the existence of historical exceptions to the confrontation right under Article I, section 11. Defendant asserts that those decisions stand for the proposition that certain hearsay evidence may fall outside the protections of the confrontation right only if the evidence is “collateral” and no other means of obtaining the evidence exists. Those decisions do not, defendant urges, support the Court of Appeals' conclusion that a trial court may admit hearsay evidence to prove an element of a crime unless the declarant is unavailable to testify. Second, defendant asserts that the Court of Appeals opinion in this case is inconsistent with this court's decision in Birchfield. In that regard, defendant essentially tracks the concern expressed in Judge Sercombe's concurrence.

II. ARTICLE I, SECTION 11, ANALYSIS

In Priest v. Pearce, 314 Or. 411, 415–16, 840 P.2d 65 (1992), this court held that, when construing a provision of the original Oregon Constitution, we engage in a three-part analysis. We examine the...