State v. Edmonds

• Decision Date: 01 June 2017
• Docket Number: A158854
• Citation: 398 P.3d 998,285 Or.App. 855
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Kelly Lee EDMONDS, Defendant-Appellant.
• Court: Oregon Court of Appeals

285 Or.App. 855

398 P.3d 998

STATE of Oregon, Plaintiff-Respondent,

v.Kelly Lee EDMONDS, Defendant-Appellant.

A158854

Court of Appeals of Oregon.

Argued and submitted February 27, 2017.

June 1, 2017

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

LINDER, S.J.

Defendant appeals from a judgment of conviction for rape in the first degree, ORS 163.375, challenging the trial court's admission of a short portion of a transcript under the hearsay exception for past recollection recorded, OEC 803(5). The state concedes that the evidence was not admissible on that basis, but argues that the trial court's ruling was nevertheless correct because the transcript was admissible under the hearsay exception for business records, OEC 803(6). As we will explain, we accept the state's concession, and we conclude that we should exercise our discretion to affirm on the alternative basis proffered by the state. We therefore affirm.

We begin by relating the facts and procedural events pertinent to defendant's claim of error. Defendant was charged with raping a five-year-old girl sometime in 1994 or 1995, while she was staying in his home where his wife operated a daycare business. Defendant's theory at trial was that the victim, who was 25 years old at the time of trial, had formed a false memory of the event and was confusing it with sexual abuse committed by her stepfather, which started when she was seven years old. To rebut that defense of "recent fabrication," the state sought to prove that the victim made statements and disclosures, both at the time of the rape and in the years that followed, that were consistent with her testimony describing the rape.¹

At issue here is evidence of a disclosure that the victim made in 2002, when two deputy sheriffs—Detective Delehant and Detective Clinton—interviewed the victim to determine if she was being sexually abused by her stepfather. During that interview, the victim related an instance of prior abuse that was consistent with her claim at trial that defendant had raped her while she was in daycare at his home. Delehant, for reasons that are not a matter of record, was not available to testify. Clinton, who was available as a witness, did not recall all the details of the 2002 interview and, in particular, did not recall the victim's disclosure of the earlier abuse. The state therefore intended to rely on a transcript of the interview that was part of the police file on the stepfather's case.

Defendant filed a motion in limine seeking to exclude the transcript on hearsay grounds.² The state responded that the transcript was admissible as a past recollection recorded, given Clinton's inability to recall the victim's disclosure. Defendant disputed its admissibility on that ground, pointing to the requirement in OEC 803(5) that a past recollection recorded must be "shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly."³ (Emphasis added.) Defendant argued that Delehant had been responsible for having the transcript of the interview prepared and that Clinton, the only one of the two to be called as a witness, had neither prepared nor personally reviewed the transcript for accuracy after the interview. As a result, according to defendant, the state could not satisfy the foundation needed for the past recollection recorded exception to the hearsay rule.

The state, for its part, did not dispute that Delehant, and not Clinton, had been responsible for preparing and reviewing the transcript. But the state maintained that it could lay the requisite foundation for the exception through Clinton's testimony. According to the state, Clinton could testify to the regular procedures followed by the sheriff's office for victim interviews, which was to record the interview and then prepare a transcript of that recording that an officer present for the interview checked for accuracy. The transcript was then made a part of "their business record." In this case, it was undisputed that Delehant had signed the transcript and the transcript had been placed in the file of the case that he was investigating at the time. The state urged that Clinton's description of the regular procedures followed in the sheriff's office, coupled with Delehant's signature on the transcript, established that Delehant had "made or adopted" the transcript when the details of the interview were fresh in his mind, satisfying the requirements of the past recollection recorded exception to the hearsay rule.

The trial court agreed, concluding that the state's proffer "is likely to be a sufficient foundation" to admit the evidence as a past recollection recorded. The court therefore denied defendant's pretrial motion to exclude the evidence, while noting that the defense was free to "make its objection again" if the state did not lay the foundation that it had represented it would lay.

At trial, the state called Clinton as a witness. Although Clinton recalled the 2002 interview of the victim generally, he did not recall the victim disclosing the prior abuse. As a predicate to asking Clinton to read a portion of the transcript of the 2002 interview, the state established that Clinton, who had been employed by the Clackamas County Sheriff's Office for 27 years and was a detective for 20 of those years, knew the procedures followed by the sheriff's office for making and keeping records of victim interviews. Clinton explained that, at the time of the 2002 interview, the normal practice for an officer investigating a criminal case was to make a recording of an interview using a cassette recorder. The officer who made the recording would then submit it to the records division, which in turn would prepare a written transcript of the recording and return both the transcript and the audio recording to the officer. The officer would check the transcript for accuracy and identify any needed corrections while the interview was fresh in the officer's mind. After that review, the audio recording and the transcript would be filed in the case file. Once the case being investigated was "over," the audio recording usually was destroyed due to space limitations, but the written transcript was retained in the file.

In this instance, Delehant, not Clinton, recorded the 2002 interview with the victim. Clinton therefore had no role in preparing or reviewing the transcript of the 2002 interview; those tasks were Delehant's responsibility. Clinton therefore could not say whether Delehant in fact had reviewed the transcript for accuracy while the interview was fresh in Delehant's memory. Consistently with its policies, the sheriff's office had retained the written transcript of the interview in its files. In preparation for trial in this case, Clinton had reviewed the transcript, but that review did not refresh his memory of the victim's statements about the prior abuse. However, based on what he could independently recall of the interview, and given the office's regularly followed procedures, Clinton did not doubt the transcript's accuracy.

After eliciting that testimony from Clinton, the state began to ask the detective about the contents of the transcript. Defendant renewed his objection based on a lack of foundation; the trial court overruled it. Clinton then read a short portion of the transcript to the jury in which the victim told the detectives that she had been touched in a sexual way at a "babysitter's" when she was much younger. One of the detectives asked if the touching had happened in Oregon, and the victim confirmed that it had. The detectives did not ask her any other questions about that disclosure, and no other portions of the 2002 interview transcript were presented to the jury in the trial in this case.

On appeal, defendant renews his argument that Clinton's testimony did not provide the foundation required by OEC 803(5) for past recollection recorded. Under OEC 803(5), otherwise inadmissible hearsay may be admitted in evidence when it is

"[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly . If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party."

(Emphasis added.) Defendant urges that the rule was not satisfied because it requires "the witness" to make or adopt the transcript of the recording. Here, the witness was Clinton, who "reviewed the transcript at trial, more than ten years after it was prepared, when he admittedly had no memory whatsoever of the exchange at issue." The state did not call Delehant as a witness, who had been responsible for recording the interview, having it transcribed, and reviewing it for accuracy.

The state concedes that defendant is correct: "Because Detective Clinton did not make the transcript or adopt it close in time to the interview, the transcript was not admissible under OEC 803(5)." The state's concession is well-taken, and we accept it. By its terms, the rule requires "the witness" whose memory is lacking to be the person who, when the matter was fresh in the witness's mind, made or adopted the record to be admitted as evidence. That requirement is consistent with the common law origins of the rule:

"By the middle 1600s, it had become customary to permit a witness to

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