State v. Cunningham

• Decision Date: 21 October 2004
• Citation: 337 Or. 528,99 P.3d 271
• Parties: STATE of Oregon, Petitioner on Review, v. Bradly Morris CUNNINGHAM, SR., Respondent on Review.
• Court: Oregon Supreme Court

99 P.3d 271

337 Or. 528

STATE of Oregon, Petitioner on Review, v. Bradly Morris CUNNINGHAM, SR., Respondent on Review.

(C930434CR; CA A87792; SC S50010).

Supreme Court of Oregon.

Argued and Submitted May 4, 2004.

Decided October 21, 2004.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

George Kelly, Eugene, argued the cause and filed the brief for respondent on review.

James E. Mountain, Jr., of Harrang Long Gary Rudnick, P.C., Portland, filed briefs on behalf of amicus curiae Garvey Schubert Barer. With him on the briefs were Robert C. Weaver, Jr., and Garvey Schubert Barer.

Before CARSON, C.J., and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, JJ.¹

BALMER, J.

The issue in this criminal case is whether the trial court properly admitted certain testimony at defendant's trial under the excited utterance exception to the hearsay rule. The trial court concluded that statements that the victim had made to her mother during a telephone call shortly before the victim's death were admissible under OEC 803(2), which provides an exception to the general rule that hearsay is inadmissible in Oregon trials.² A jury convicted defendant of murder, and he appealed, alleging numerous assignments of error. The Court of Appeals reversed and remanded, holding that the trial court had erred by admitting the testimony in question and that that error was not harmless. State v. Cunningham, 179 Or. App. 359, 40 P.3d 1065 (Cunningham I), adh'd to on recons., 184 Or.App. 292, 57 P.3d 149 (2002) (Cunningham II). We allowed the state's petition for review and now reverse the decision of the Court of Appeals.

FACTS AND PROCEDURAL BACKGROUND

Because the jury convicted defendant, we review the evidence in the light most favorable to the state. State v. Barone, 329 Or. 210, 212, 986 P.2d 5 (1999), cert. den., 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000). We first recite the facts necessary to determine the issue before us and later describe them in greater detail as needed to address the parties' legal arguments.

On September 21, 1986, defendant's wife, Cheryl Keeton Cunningham (the victim), was found beaten to death in her van on Highway 26, near Portland. She had died sometime between 8:00 p.m. and 8:30 p.m. The relationship between the victim and defendant had grown increasingly rancorous in the months leading up to the victim's murder. In February 1986, the victim had filed for divorce, and the divorce trial was to begin in early October. Both parties had sought custody of their three sons, and, pending the divorce proceeding, the victim and defendant had shared custody of the children. The victim had decided to seek sole custody of the children following a bitter public argument with defendant over which school one of the children should attend. Under the visitation schedule, defendant had custody of the children from 7:00 p.m. Friday nights to 7:00 p.m. Sunday nights.

On Friday, September 19, 1986, defendant had picked the children up from the victim's house. Defendant was angry at the victim and accused her of having lied during depositions taken during the previous week in preparation for the impending divorce trial. On Saturday, September 20, defendant took the children to a soccer game in which the oldest son was playing. The victim also attended the game, but defendant, upon seeing her there, became upset and took the children to the other side of the field to prevent them from speaking to her. That action upset the victim, who told a friend at the game that defendant did not want her there and that he had threatened her.

On Sunday, September 21, 1986, the victim telephoned her mother at 7:11 p.m. and told her that defendant had called to say that he could not return the children to her at 7:00 p.m. as scheduled because he was having gas problems with his car. The victim also told her mother that defendant had refused to tell her where he was. At defendant's trial, the victim's mother testified that the victim had been "hysterical" during their conversation and had said that she might call the police.

At approximately 7:30 p.m. the victim had a telephone conversation with her brother, Jim Karr, during which she was upset and crying. She told him that defendant had not brought the children home yet and that he claimed to be having car trouble, which she described as a "typical maneuver."

At 7:59 p.m., the victim again called her mother. At trial, the victim's mother testified that

"[the victim] was very stern and she said, `Mother, I want you to remember this. I'm going down to the Mobil station by the IGA store, ah, down the hill. * * * And I'm going to meet Brad and pick up the children. And I want you to remember this.' And she was real stern about it. * * *

"I * * * told [Marvin Troseth (mother's boyfriend at the time, whom she later married)] to come over by the phone, and I repeated what she said to me. And she repeated it again, and I said it to him so he would know where she was going. * * *

"I said, `Please, please don't go alone. Please wait and let us come up there and go with you. We can get there in 45 minutes or so. We'll go with you.'

* * * [The victim] said, `No, I cannot leave the kids in the car any longer. I have to go pick up my kids.' And that was it."

In addition to the testimony regarding the telephone calls, the state also introduced a piece of paper with notations in the victim's handwriting that was found in her house and that described the same events that the victim had discussed with her mother, although not in the same detail. The note stated:

"7:10 pm—`I'm having gas problems.'

—I asked where boys were & said I'd pick them up.

—He says—`I'll handle it & hangs up.[']

"8:00 SW Canyon Lane—IGA mkt

—at IGA—at Mobil (though closed)"

Before trial, defendant moved in limine to exclude as hearsay the victim's statements made during the two telephone calls to her mother on the evening of her murder and the victim's handwritten notes.³ The court held an omnibus hearing at which the state argued that, although the victim's statements to her mother during the two telephone calls were hearsay, those statements were admissible either as evidence of the victim's state of mind or as excited utterances. Defendant claimed that those statements did not satisfy the requirements of either exception to the hearsay rule and therefore should be excluded at trial. The trial court denied defendant's motion and concluded that all the statements that the victim had made during the telephone calls, as well as her handwritten notes, were admissible as excited utterances. As noted, a jury convicted defendant of murder.

On appeal, defendant assigned error to, inter alia, the admission of that hearsay evidence.

The Court of Appeals held that the trial court correctly determined that evidence of the 7:11 p.m. telephone call was admissible under OEC 803(2) as an excited utterance. Cunningham I, 179 Or.App. at 377, 378,40 P.3d 1065.⁴ The Court of Appeals also held that the piece of paper containing the victim's notations about the two telephone calls had been offered as a single item of evidence. Id. at 373-74, 40 P.3d 1065. The court then determined that the first notation, written in close proximity to the victim's 7:11 p.m. telephone call to her mother, was admissible as an excited utterance. Id. at 378, 40 P.3d 1065. Because defendant had not objected separately to the second notation regarding the later telephone call, the court held that the trial court properly had admitted the entire note into evidence. Id. at 378-79, 40 P.3d 1065. Finally, the Court of Appeals concluded that the trial court had erred in determining that the victim's statements during the 7:59 p.m. telephone call to her mother qualified as an excited utterance and therefore were admissible as an exception to the hearsay rule under OEC 803(2). Id. at 381, 40 P.3d 1065. After determining that that error was not harmless, the court reversed and remanded. Id. at 383, 40 P.3d 1065.

The state petitioned for reconsideration on the ground that, in analyzing the contents of the 7:59 p.m. telephone call, the Court of Appeals had misconstrued and misapplied OEC 803(2). In the alternative, the state asserted that (1) the court should have held that the victim's statements from the 7:59 p.m. telephone call were admissible under OEC 803(3), the state-of-mind exception to the hearsay rule; and (2) any error in admitting those statements was harmless because other unchallenged testimony established the same inference as the content of that telephone call, namely, that the victim was going to meet defendant at the gas station. The Court of Appeals, without discussion, adhered to its original determination that the victim's statements in the 7:59 p.m. telephone call did not fall within the excited utterance exception to the hearsay rule. Cunningham II, 184 Or.App. at 295, 57 P.3d 149. The court also declined to consider the merits of the state's argument regarding the admissibility of those statements under the state-of-mind exception, because it concluded that the state had not raised that argument properly under ORAP 6.25(1). Id. Finally, the court rejected the state's argument that the error was harmless. Id. at 308-09, 57 P.3d 149.

ADMISSIBILITY OF THE VICTIM'S HEARSAY STATEMENTS

On review, the state first contends that defendant failed to preserve his objection to the hearsay evidence regarding the victim's statements to her mother during the second, 7:59 p.m., telephone call, because he did not object to that evidence separately from the evidence regarding the first, 7:11 p.m., telephone call. We have considered the state's preservation argument, and we reject it. The trial court proceedings make it clear that defendant properly objected to the hearsay testimony...