State v. Crawley

• Decision Date: 16 February 1966
• Citation: 410 P.2d 1012,242 Or. 601
• Parties: STATE of Oregon, Respondent, v. Milton Ross CRAWLEY, Appellant.
• Court: Oregon Supreme Court

Page 1012

410 P.2d 1012

242 Or. 601

STATE of Oregon, Respondent, v. Milton Ross CRAWLEY, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 1, 1966.

Decided Feb. 16, 1966.

Julian Herndon, Jr., Portland, argued the cause and filed the brief for appellant.

George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and Harold J. Blank, Deputy Dist. Atty., Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

HOLMAN, Justice.

Defendant was convicted of the crime of larceny of an automobile and has appealed. Most of the grounds of appeal revolve around the admission in evidence of statements made prior to trial by the owner of the automobile. The owner was deceased at the time of trial.

A preliminary hearing was held at the request of defendant. Defendant was represented by the same counsel who represented him at trial. During this preliminary hearing the owner of the automobile testified that she parked her vehicle in front of her bail bond office at Second and Oak Streets in the city of Portland, left her keys in the car, went into her office for a moment or two and then looked up and saw her vehicle being operated down the street. She described the operator of the vehicle. She further testified that she did not know him and that he had no permission to use the car. Finally, she testified she saw a police officer on the corner whom she immediately told that her car had been stolen.

Because of the owner's death between the preliminary hearing and the trial, the Deputy District Attorney who conducted the examination of the owner at the preliminary hearing was permitted, over objection, to relate the owner's testimony given at the preliminary hearing. It is defendant's contention that the admission of this testimony violated the rule against the admission of hearsay testimony; the provisions of Article I, Section 11, Oregon Constitution, and the Sixth Amendment to the Constitution of the United States, which provide that an accused shall have the right to face witnesses against him; and ORS 136.530, which requires that testimony in a criminal action shall be given orally in the presence of the court and jury.

Defendant's contention is not well taken. ORS 41.900 provides as follows:

'Evidence may be given of the following facts:

* * *

* * *

'(8) The testimony of witness, deceased, or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.'

The principal basis for excluding hearsay is that no opportunity is afforded to confront the witness and cross examine him. State Highway Comm v. Fisch-Or, Inc., 81 Or.Adv.Sh. 343, 351-352, 406 P.2d 539 (1965). The above statutory provision recognizes that when this opportunity is afforded at the time the testimony was originally given and when the same issues are involved there is no rational basis for excluding evidence of the statements because they are hearsay. Trustworthiness of the statements has already been insured by the opportunity to confront and cross examine. The point involved here is covered by the case of State v. Meyers, 59 Or. 537, 117 P. 818 (1911). It recognizes the provisions of ORS 41.900(8), Article I, Section 11, Oregon Constitution; the Sixth Amendment to the Constitution of the United States; and ORS 136.530. This court there said, at pages 541-542, 117 P. at page 819, as follows:

'The Constitution of Oregon (Article I, § 11) provides that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, and the Constitutions of most of the states, as well as the Constitution of the United States, contain similar provisions. It is held, however, that, where the accused has once enjoyed the right to cross-examine and confront the witness at an earlier trial, his constitutional right to meet him face to face is not violated by the admission of the testimony of such witness when absent at a subsequent trial. If the defendant is represented by counsel at a preliminary examination, and has had an opportunity to cross-examine witnesses, he has enjoyed his right to meet his accuser face to face, and no objection exists to receiving the testimony. * * *'

Also see State v. Bowker, 26 Or. 309, 313, 38 P. 124 (1894); State v. Walton, 53 Or. 557, 562-563, 566, 570, 99 P. 431, 101 P. 389, 102 P. 173 (1909); State v. Von Klein, 71 Or. 159, 169, 142 P. 549 (1914); State v. Edmunson, 120 Or. 297, 300, 249 P. 1098 (1926). The only factual difference in Meyers was that the testimony was given at a prior trial rather than a preliminary hearing. That difference, in our opinion, is not important when defendant has been afforded the opportunity at such a hearing to confront and cross examine the witness.

The fact that there was no court reporter at the preliminary hearing and that the testimony given was the recollection of a participant in the proceeding would make no constitutional difference. In King v. State Indus. Acc. Comm., 211 Or. 40, 66, 309 P.2d 159, 171, 315, P.2d 148 (1957), the court said as follows:

'* * * The admissibility in the later trial is not dependent upon whether or not a reporter, official or otherwise, attended the former proceeding. McCormick on Evidence, § 237; 31 C.J.S., Evidence, § 401, p. 1208; 20 Am.Jur., Evidence, § 710, p. 595. * * *'

Defendant relies upon State v McPherson, 70 Or. 371, 141 P. 1018 (1914). In that case the evidence in the prior proceeding was read from what purported to be a transcript of that proceeding. There was no showing that the testimony was taken or certified by the official reporter nor did any one else testify in court under oath it was correct. The court held that it was error to have admitted the evidence because it was not certified as required by what is now ORS 8.360(1). The case is clearly distinguishable because there no one vouched for the correctness of the transcript, neither the witness who was reading the testimony nor the official reporter as required by statute.

Defendant contends error was committed in allowing a police officer to testify as to certain statements made to him by the owner of the vehicle. The officer was waiting for his wife at the curb when the owner rushed out of her office upon seeing her automobile being driven down the street. His testimony, which defendant says is objectionable, was as follows:

'Q What is the next thing that happened?

'A Mrs. Berry shortly after that came out and----

'Q What condition was she in when she came out?

'A She was very pale, acting very nervous. I says, 'What is the matter?' She said----

'Mr. Pihl: Your Honor, I would object to any conversation that Mrs. Berry and this witness may have had on the ground that such conversation would be hearsay.

'The Court: Another exception to that. I am going to overrule the objection. You can testify.

'Q (By Mr. Blank): What did she say, if anything?

'A She said, 'Someone just stole my car.'

'Q What happened then?

'A I said, 'Give me your driver's license and I'll run over to the station and report it.' She says, 'I don't have it."

The statement of the witness was admissible as a spontaneous utterance made in response to a startling event and as such falls within a well-recognized exception to the rule against the admissibility of hearsay testimony. The matter is well covered in the case of State v. Hutchinson, 222 Or. 533, 537, 353 P.2d 1047, 1049, 83 A.L.R.2d 1361 (1961), in which the court said as follows:

'There may occur suddenly in the presence of one who becomes its victim a startling event which draws from the individual a spontaneous declaration before he has had time for reflection or opportunity to contrive a statement which will serve his interest. * * * Being spontaneous in nature, the declaration is free from the elements of design, contrivance and self-service which at times color testimony given from the witness stand. * * *'

Also, see 6 Wigmore, Evidence, §§ 1747, 1762 (3d ed. 1940).

The fact that the statement was made in response to a question by the police officer does not necessarily make the statement any less spontaneous. People v. Costa, 40 Cal.2d 160, 168, 252 P.2d 1 (1953); Robbins v....