State v. Martin

• Citation: 496 P.3d 1077,313 Or.App. 578
• Decision Date: 28 July 2021
• Docket Number: A169801 (Control), A169803
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Deangelo Franklin MARTIN, Defendant-Appellant.
• Court: Court of Appeals of Oregon

313 Or.App. 578

496 P.3d 1077

STATE of Oregon, Plaintiff-Respondent,

v.Deangelo Franklin MARTIN, Defendant-Appellant.

A169801 (Control), A169803

Court of Appeals of Oregon.

Submitted July 16, 2020.

July 28, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Daniel Norris, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

KAMINS, J.

Defendant appeals from a judgment that he violated the conditions of his probation. On appeal, he challenges the trial court's admission and consideration of out-of-court statements of the victim, who did not testify at the hearing. Because the statements were admissible pursuant to a "firmly rooted" hearsay exception, we affirm.

Defendant was previously convicted of several domestic violence crimes committed against his girlfriend, MK. Part of his sentence for those crimes included 36 months of supervised probation, which included a condition that he does not contact MK. Despite this condition, defendant went to MK's house and chased her down the street as she tried to evade him. During the chase, MK managed to call 9-1-1 and described what was occurring to the dispatcher.

The trial court held a hearing to determine whether defendant violated the conditions of his probation, including the condition that he does not contact MK.¹ During that hearing, the state submitted a recording of the 9-1-1 call as proof of the violation. The state informed the court that it was unable to locate MK in time for the hearing, so she did not testify. Defendant objected to the admission of the 9-1-1 recording, arguing that it violated his right to confront witnesses under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The trial court concluded that the admission of the recording complied with the requirements to admit an out-of-court statement in a probation revocation hearing. Defendant challenges that decision on appeal.

We review whether the admission of evidence at a probation revocation hearing violates a defendant's right to confront adverse witnesses for errors of law. State v. Harris , 260 Or. App. 154, 157, 316 P.3d 405 (2013).

A defendant is not entitled to "the full panoply of rights" during a probation revocation hearing that he would be due during a criminal prosecution.

Morrissey v. Brewer , 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).² Rather, the probation revocation process is "flexible enough to consider evidence * * * that would not be admissible in an adversary criminal trial." Id. Because a defendant in a probation revocation proceeding has already been convicted of a crime, his freedom is not a matter of right, but rather extended to him as a matter of discretion. Barker v. Ireland , 238 Or. 1, 4, 392 P.2d 769 (1964). As a result, a defendant during a probation revocation hearing has no Sixth Amendment right to confront witnesses. State v. Gonzalez , 212 Or. App. 1, 5, 157 P.3d 266 (2007). Instead, that defendant has a more limited right under the Due Process Clause "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey , 408 U.S. at 489, 92 S.Ct. 2593.

Here, the state contends that there is good cause for admitting MK's testimony without confrontation because it would have been admissible at trial as an excited utterance under OEC 803(2) —a "firmly rooted" exception to the hearsay rule. See State v. Moen , 309 Or. 45, 65, 786 P.2d 111 (1990) ("The excited utterance exception is a firmly rooted traditional hearsay exception."). In the state's view, the inherent reliability of a statement admissible pursuant to a firmly rooted exception is sufficient to satisfy the due process concerns that would otherwise require confrontation. To evaluate that argument, we must examine both the requirements of due process and the theory of firmly rooted hearsay exceptions.

The fundamental requirement of the Due Process Clause "is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge , 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (internal quotation marks omitted). In the context of defendant's right to confront witnesses, this means a meaningful opportunity to test the veracity of the evidence via cross examination to ensure that any revocation of probation is based on "verified facts." See Morrissey , 408 U.S. at 484, 92 S.Ct. 2593. However, due process is flexible; the protections it affords are responsive to the needs of the situation. Jennings v. Rodriguez , 583 US ––––, 138 S. Ct. 830, 852, 200 L. Ed. 2d 122 (2018). "It requires minimum procedural safeguards, depending on the nature of the interests involved and a weighing of costs and benefits in terms of the risks of erroneous decisionmaking in the generality of cases." Trujillo v. Pacific Safety Supply , 181 Or. App. 302, 309-10, 45 P.3d 1017 (2002), aff'd , 336 Or. 349, 84 P.3d 119 (2004). In situations where further procedural safeguards would be expected to add little, if anything, to the reliability of the factfinding process, due process does not require that courts impose them. Id. at 309, 45 P.3d 1017. Notably, because due process protections are flexible and circumstance-dependent, the Supreme Court has explained that they are not meant to equate to the protections that a criminal defendant is entitled to under the Sixth Amendment at trial. Morrissey , 408 U.S. at 489, 92 S.Ct. 2593.

Consistent with those principles, we outlined a four-factor balancing test for determining whether "good cause" exists for denying confrontation during a probation revocation hearing in State v. Johnson , 221 Or. App. 394, 401, 190 P.3d 455 (2008) : "(1) the importance of the evidence to the court's finding; (2) the probationer's opportunity to refute the evidence; (3) the difficulty and expense of obtaining witnesses; and (4) traditional indicia of reliability borne by the evidence." The first two factors assess the strength of a defendant's interest in confrontation, which is then weighed against the state's good cause for not producing the declarant, as measured by the second two factors. Harris , 260 Or. App. at 158, 316 P.3d 405. "If, on balance, the state's good cause outweighs the defendant's interest in confrontation, then confrontation is not constitutionally required." Id. Applying the balancing test in Johnson , we concluded that a probation officer's sworn affidavit averring that defendant had failed to comply with the officer's directives was admissible without confrontation. 221 Or. App. at 406, 190 P.3d 455. Although two factors weighed in defendant's favor—that the evidence was important and there was only a "perfunctory showing" as to why the probation officer was not called as a witness—the evidence bore substantial earmarks of reliability, concerned only relatively simple matters, and defendant did not meaningfully contest it. Id. at 405, 190 P.3d 455.

In Johnson , however, we also left open the question of whether evidence that satisfies a "well-established exception to the hearsay rule, might, standing alone, satisfy due-process-based confrontation demands" without a need for balancing. Id. at 403-04, 190 P.3d 455. The concept of firmly rooted exceptions traces its roots back to the now-defunct framework for evaluating confrontation challenges under the Sixth Amendment in Ohio v. Roberts , 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), abrogated by Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Under Roberts , the theory went that there are certain firmly rooted hearsay exceptions that by their nature are so inherently reliable "that admission of virtually any evidence within them comports with the substance of the [Confrontation Clause]." Id. The exception contemplated by Johnson would thus allow the admission of statements under the Due Process Clause that, by their nature, are so inherently reliable that they would satisfy the Sixth Amendment's Confrontation Clause at trial.

Such an exception makes sense. A statement qualifying for a firmly rooted hearsay exception is already considered "so trustworthy that adversarial testing can be expected to add little to its reliability." White v. Illinois , 502 U.S. 346, 357, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992). And, even among firmly rooted exceptions, excited utterances are a "special breed." People v. Stanphill , 170 Cal. App. 4th 61, 81, 87 Cal. Rptr. 3d 643, 657 (2009). The rationale behind the excited utterance exception—that statements made under the stress of an exciting event while the speaker lacks the presence of mind to act in his or her own self-interest are especially reliable—has proven so strong that the exception has existed for over two centuries. White , 502 U.S. at 355 n. 8, 112 S.Ct. 736 (the excited utterance exception is "at least two centuries old" but "may date to the late 17th century" and, as of 1992, "is currently recognized * * * in nearly four-fifths of the States"). In fact, Wigmore explains, such statements are likely even better than live testimony because it is not possible to reproduce the same conditions in the courtroom that give rise to their reliability under the exception. John Henry Wigmore, 6 Evidence § 1748 (Chadbourn rev. 1976) (a statement made under the stress of an exciting event is "better than is likely to be obtained from the same person upon the stand").

Under these circumstances, the due process concerns which ordinarily favor confrontation—and thus Johnson balancing—are not present. If cross examination does not increase the reliability of a statement admitted pursuant to a firmly rooted hearsay...