State v. Iseli, SC S066142

CourtSupreme Court of Oregon
Citation366 Or. 151,458 P.3d 653
Docket NumberSC S066142
Parties STATE of Oregon, Respondent on Review, v. Chad Allen ISELI, Petitioner on Review.
Decision Date21 February 2020

366 Or. 151
458 P.3d 653

STATE of Oregon, Respondent on Review,
Chad Allen ISELI, Petitioner on Review.

SC S066142

Supreme Court of Oregon, En Banc.

Argued and submitted May 3, 2019.
February 21, 2020

Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.


366 Or. 153

This interlocutory appeal involves the "unavailability as a witness" requirement under Oregon Evidence Code (OEC) 804(1), for purposes of applying an exception to the hearsay rule in a criminal case. Under OEC 804(1)(e), a potential witness is "unavailab[le]" if he or she is absent from a hearing, and the proponent seeking to introduce an earlier hearsay statement "has been unable to procure [his or her] attendance *** by process or other reasonable means." In this case, the state served a subpoena on a key witness to testify against defendant and made other efforts to ensure her attendance at trial, but she did not attend. The state therefore moved to introduce her earlier out-of-court statements under the "forfeiture-by-wrongdoing"

458 P.3d 658

exception to the hearsay rule, OEC 804(3)(g), which allows the admission of hearsay statements by an unavailable witness if the opposing party engaged in intentional, wrongful conduct that caused the unavailability. The trial court found that the state had made substantial efforts to secure the witness’s attendance and that she had expressed safety concerns about testifying. It also found, in relation to the forfeiture-by-wrongdoing exception, that defendant had engaged in intentional, wrongful conduct that had caused her absence. The court further determined, however, that the state had not established that the witness was unavailable because it had not sought a material witness warrant or a remedial contempt order. The court therefore denied the state’s motion to admit her earlier statements.

The state appealed that ruling, and the Court of Appeals reversed, reasoning that—particularly in light of defendant’s intentional, wrongful conduct—the state had satisfied the "process or other reasonable means" requirement of OEC 804(1)(e), thereby establishing that the witness was unavailable. State v. Iseli , 293 Or. App. 27, 38-39, 426 P.3d 238 (2018). We allowed review. For the reasons that follow, we reverse in part the decision of the Court of Appeals and affirm the order of the trial court.


We summarize the facts regarding the underlying incident from the Court of Appeals opinion, and we otherwise

366 Or. 154

take the facts from the record below. The criminal charges against defendant arose from an incident involving him and the witness (hereafter, "the victim"), with whom he had been in a romantic relationship. During an argument, defendant choked the victim, kicked her in the ribs, and hit her on the head. He dragged her down some stairs and outside by her hair, then locked her in a trailer while he attended a gathering of the Mongols Motorcycle gang. After returning, he continued assaulting the victim and threatened to kill her. Id. at 30, 426 P.3d 238.

Defendant eventually released the victim, who went to a friend’s house and called 9-1-1. In that call, she described the beating and said that defendant was part of the Mongols gang and had threatened to kill her if she spoke to police. She expressed fear of defendant and said that she was hiding because the gang was looking for her. Id. at 30-31, 426 P.3d 238. She also called the sheriff’s office.

The victim then went to the hospital, where she called the sheriff’s office again and reiterated her statements. When the dispatcher told the victim that deputies would come to the hospital to interview her, the victim said that she did not want police at the hospital. Id.

A detective arrived to interview the victim, who described the incident, including defendant’s threats to kill her. She also stated that defendant had repeatedly reminded her about the Mongols, telling her that he was the acting president and that, if she went to the police, "he had a huge area that he could dig a hole and bury [her] in[,]" and no one would ever find her. The victim also told the detective that defendant had warned her about being a "snitch" and a "rat," stating that Mongols viewed "rats" and "snitches" as "the lowest form of life." Id.

Defendant was arrested on multiple charges.1 The victim was subpoenaed to attend the grand jury proceedings but did not attend. The state planned to call her as a witness at trial, and it again secured a subpoena for her attendance.

366 Or. 155

However, the state had lost contact with her and failed in several attempts at service. Finally, an officer watched the victim’s apartment (which the trial court characterized as a "stake out"), waited for her to leave, and then conducted a traffic stop and served her.

During the period before trial, law enforcement officers and the prosecutor spoke with the victim several times about the importance of attending, and a detective scheduled a meeting with her, to take place in morning on the day before trial. At the last minute, though, the victim texted the detective to say

458 P.3d 659

that she could not make it to the meeting, but that she would attend trial the next day. In response, the detective located her and brought her to the prosecutor’s office. There, the detective and the prosecutor again emphasized that the victim’s attendance was important, and, to address her safety concerns, they offered to pay for a hotel room. She declined, stating that she would arrange for the detective to pick her up the next morning. However, the next morning, she informed the detective via text message that she would not attend and that she was at a friend’s house. The detective did not know how to find her.

Meanwhile, earlier on the day before trial was to begin, and in anticipation of the possibility that the victim would not attend, the state had filed a motion in limine seeking admission of her out-of-court statements to 9-1-1, the sheriff’s office dispatcher, and the detective at the hospital. In that motion, the state argued that the victim was unavailable as a witness and that her statements should therefore be admitted under the forfeiture-by-wrongdoing hearsay exception, OEC 804(3)(g), which permits the admission of a hearsay statement if the declarant is unavailable as a witness and the party against whom admission is sought engaged in wrongful conduct intended to cause, and in fact causing, the unavailability.

On the day that trial was scheduled to begin, when the victim did not appear, the trial court held a hearing on the state’s motion. During a break, a detective unsuccessfully tried to locate the victim. At the close of the state’s presentation, the trial court suggested that the state should seek a material witness warrant, but the state declined,

366 Or. 156

because—in its view— OEC 804(1)(e) did not require that step, in light of defendant’s conduct and the victim’s safety concerns.

The trial court then made detailed factual findings, to the effect that the state had undertaken "substantial" efforts to secure the attendance of the victim, who repeatedly had indicated an unwillingness to cooperate with the investigation and who had a history of not cooperating due to safety concerns. But the court next determined that, notwithstanding the state’s efforts, it had not established that it had been "unable to procure" her attendance "by process or other reasonable means." OEC 804(1)(e). That was so, the court reasoned, because the state should have sought a warrant to secure her attendance under either the material witness statute or the statutory scheme for remedial contempt sanctions. See generally ORS 136.608 - 136.612 (setting out procedure for seeking material witness warrant); ORS 33.055 (setting out procedure for seeking remedial contempt sanctions, which may include issuance of arrest warrant). The court cited the stakes of the case—including defendant’s liberty interest and the potentially lengthy sentence that he faced in light of the charges—as well as the importance of the victim’s testimony (noting that no other witnesses saw the incident) and the cost of producing the witness, which he characterized as relatively minimal (noting, for example, that the state had the victim’s home and work addresses, and that she had been in the area the preceding evening). The court then set the case over for five days, to permit the state to decide whether to seek a warrant or file an interlocutory appeal.

When the hearing reconvened, the state reiterated its position that it would not seek a material witness warrant or a remedial contempt order, which the trial court characterized as a "relatively easy...

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17 cases
  • State v. Ramoz
    • United States
    • Supreme Court of Oregon
    • 17 Marzo 2021
    ...whether a legal ruling was permissible, we apply either an "abuse of discretion" or a "legal error" standard of review. State v. Iseli , 366 Or. 151, 161, 458 P.3d 653 (2020). We apply an abuse of discretion standard when "application of the appropriate legal principles would permit more th......
  • Chernaik v. Brown
    • United States
    • Supreme Court of Oregon
    • 22 Octubre 2020
    ...severe that it "shocks the moral sense" of a reasonable person, this court considers "at least" three factors); State v. Iseli , 366 Or. 151, 173, 458 P.3d 653 (2020) (determination of whether state established unavailability of witness by showing pursuit of "reasonable means" to procure wi......
  • State v. Acosta
    • United States
    • Court of Appeals of Oregon
    • 5 Mayo 2021 a preponderance of the evidence." Id. (citing Carlson , 311 Or. at 209, 808 P.2d 1002 ; footnote omitted). See also State v. Iseli , 366 Or. 151, 162, 458 P.3d 653 (2020) (" OEC 804(1) requires a trial court to evaluate facts proffered under the specified criteria to determine whether th......
  • State v. Belden
    • United States
    • Supreme Court of Oregon
    • 2 Diciembre 2021
    ...of law the 369 Or. 13 question of whether a witness is "unavailable" for purposes of the statutory hearsay exceptions.13 State v. Iseli , 366 Or. 151, 161-62, 458 P.3d 653 (2020). We concluded in Iseli that the test for statutory unavailability—whether the proponent of the hearsay statement......
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1 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books Trial Objections
    • 5 Mayo 2022
    ...victim at his home and were told by the victim’s wife that she was also looking for him but had been unsuccessful. OREGON State v. Iseli , 366 Or. 151, 458 P.3d 653 (2020). In assessing unavailability of declarant, for purposes of hearsay exceptions, the question is not whether declarant is......

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