State v. Harris, A154977

• Decision Date: 20 July 2016
• Docket Number: A154977
• Citation: 279 Or.App. 446,379 P.3d 539
• Parties: State of Oregon, Plaintiff–Respondent, v. Kenneth James Harris, aka Kenneth James Harris–Maynard, aka Kenneth James Maynard, Defendant–Appellant.
• Court: Oregon Court of Appeals

279 Or.App. 446

379 P.3d 539

State of Oregon, Plaintiff–Respondent,

v.Kenneth James Harris, aka Kenneth James Harris–Maynard, aka Kenneth James Maynard, Defendant–Appellant.

A154977

Court of Appeals of Oregon.

Argued and submitted on December 10, 2014, Central Catholic High School.

July 20, 2016

John Paul Evans, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services.

Greg Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

DUNCAN

, P.J.

Defendant appeals a judgment of conviction for attempted misdemeanor fourth-degree assault, which was based on an incident involving his girlfriend's 16–year–old daughter, E. On appeal, defendant argues that the trial court erred by admitting a recording of E's 9–1–1 call after she failed to appear as a witness on the morning scheduled for trial. According to defendant, the admission of E's out-of-court statements violated his rights under the confrontation clause of Article I, section 11, of the Oregon Constitution

, because the state failed to prove that it made a good-faith effort to secure E's trial attendance. We agree with defendant that the state's effort to secure her attendance is insufficient to demonstrate unavailability for purposes of defendant's confrontation rights under Article I, section 11, and we reverse and remand on that basis.

BACKGROUND

For purposes of this appeal, the background facts are essentially undisputed. In August 2012, police responded to a 9–1–1 call from E, who reported that she was hiding in the bathroom of her home because her “mom's boyfriend,” defendant, had hit E, was “waiting to hit [E] with a belt,” and was outside the door fighting with her mother, N. The responding officers found E, “hysterical,” in the street near the house. They then spoke to defendant, who claimed that the incident resulted from an attempt to discipline E, which escalated when E hit him in the eye. Based on his actions toward E, defendant subsequently was charged with felony fourth-degree assault (because of the presence of E's younger siblings) and harassment.

Trial was scheduled for 9:30 a.m. on June 12, 2013. Shortly after 10:00 a.m., on the morning set for trial, the court invited the parties to address the admissibility of a recording of the 9–1–1 call, because it was apparent that E, although subpoenaed by the state as a witness, was not planning to show up. The parties then addressed the two requirements under Article I, section 11

, for admitting out-of-court statements from a declarant who will not be testifying at trial: (1) the “unavailability” of the declarant and (2) the reliability of the declarant's statements.

The prosecutor argued that both requirements were satisfied. As for the latter requirement, reliability, the prosecutor argued that the statements in the 9–1–1 call were excited utterances. See State v. Camarena , 344 Or. 28, 36, 176 P.3d 380 (2008)

(approving this court's conclusion that the complainant's statements to the 9–1–1 operator were reliable as “excited utterances,” a firmly rooted hearsay exception under Oregon law). With regard to unavailability, the prosecutor first described the efforts that the state made to procure E's testimony. See

State v. Nielsen , 316 Or. 611, 623, 853 P.2d 256 (1993) (a declarant is “unavailable” when the state makes a good-faith effort to obtain the witness's testimony but is unable to do so). The prosecutor stated:

“First, the State has subpoenaed [E] who is the named victim in this case. She—we have a return of service on her. We have been trying to call her to have her appear and reach her.

“This morning I spoke with her mother, [N]. She confirmed that she had been served with a subpoena but was not going to come to trial.”

Later in the hearing, the trial court inquired further about the unavailability prong of the test, explaining that Camarena

did not address “whether the mere fact of not showing up for a subpoena satisfied the State's obligation.” The prosecutor replied:

“I know we have to make that showing * * *. And I think when the State subpoenaed a witness, that we have attempted to call her, we can't reach her. I spoke to her mother this morning in order to confirm whether she was coming or not.

“It is not—I think where the line comes in is where there is no efforts made, we are just going to not bother to try to get the witness here that that becomes an issue. But that was not the State's intent. The State's intent—it would be easier to have a witness here. We wouldn't have to be having this argument about what comes in and what doesn't if she were here. And we made the efforts to get her here. We did serve her. She is * * * refusing to appear.”

Defense counsel, meanwhile, argued that the state had made only “minimal” efforts to secure E's attendance.

Counsel contended, “I haven't heard that they don't know where she is. She has been under subpoena and I think that the effort has been minimal at this point, basically no effort finding out that she doesn't want to come in.” Defense counsel further argued that “the State has the authority to ask you to bring her in as a material witness. Even apart from that, the Sheriff or police officers could be sent out to have her available.”

The court then went off the record and reviewed relevant case law. When the court went back on the record, it asked the parties to clarify some of the underlying facts—particularly, the time that the state learned that E was not going to appear. The prosecutor stated that he learned “this morning” that E was not going to appear; he stated that “[w]e tried all of the numbers that we had that did not operate anymore for her and then—.” At that point, defense counsel interrupted to point out a factual discrepancy. Defense counsel stated:

“I just want to interject so you have the full record. According to what I have learned [E] was at the DA's Office sometime earlier and indicated that she wouldn't appear and didn't want to testify. And then this morning before [the prosecutor] had even identified who [E's mother] was, indicated to me that he might not have [E] available.”

The court pointed out “some disagreement as to that clarification” and asked the prosecutor whether E “appear[ed] at your office or contact[ed] your office.” The prosecutor answered:

“The last time [E] was at our office was at Grand Jury, that I know of which was almost a year ago. There had been subsequent mail or I think phone contact. Then the phone number stopped working and we have not heard from her. Because we haven't heard from her and because of, you know, the whole nature of this case where it is clear that—but [E's mother]—that [E] are not cooperative with the prosecution of this case. Yeah, there was a thought that she thought she may not show up. So that is what I related to [defense counsel].

“And spoke with—then I went out and spoke with her mother, [N], and asked if she was coming. She said no, she is not coming. She had gotten her subpoena. She confirmed that she got her subpoena but she was refusing to come.”¹

The trial court observed that Oregon appellate cases had not squarely addressed whether “merely serving the subpoena is a reasonable effort on the part of the State.” The court then stated that, “[i]f this person is known to be local, if she is still—I don't know if I can say presumably, but the circumstances were that she was living with her mother as a family, it is reason to believe that she still lives under those circumstances, whether the state ought to be asking for the Court's assistance in procuring her attendance or not.”

The prosecutor, in response, again argued that “service is enough” and suggested that “the more likely scenario is that they figured if they didn't show up then we wouldn't have a case and then it would be dismissed, rather than it is the State not trying to have them here.” The court clarified that it was not suggesting that the state was “trying not to have them here,” but rather was trying to resolve defense counsel's contentions regarding whether a material witness order, or sheriff being sent to compel her attendance, or something “along those lines is required” to show unavailability. The court explained that “[t]hose are remedies that are available. I understand * * * why that is not necessarily desirable, but certainly in an allegation of domestic violence I can see why the state might choose not to do so.” The court further acknowledged that the state might not want to take measures beyond subpoena in the case of a juvenile but explained that the question was complicated by the constitutional requirement of confrontation. The court then proposed the following approach to protect defendant's confrontation rights:

“One way of looking at this is that we now have a bench trial. We have two days set for trial. If all that has happened so far is a follow up phone call we could set this to begin tomorrow at the same time or perhaps at 9:00 o'clock and allow the State to do whatever further—make whatever further efforts it wishes to make at this time whether through officers that are on the case or otherwise. And then we could take it up tomorrow morning.

“It feels to me like there is a little bit more—and I am not official formally ruling on that, but it seems to me that there might be a little more that could be done to ensure that [defendant's] Constitutional rights are protected that won't interfere with the operation of this—completion of this trial under the circumstances. So I would give the State that opportunity to do so.

“Is there any reason that—it seems like this would be a fairly brief trial since it is a bench trial. In any event, we could complete it in one day if we

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