State v. Moore

• Decision Date: 11 July 2002
• Citation: 49 P.3d 785,334 Or. 328
• Parties: STATE of Oregon, Petitioner on Review, v. Robert MOORE, III, Respondent on Review.
• Court: Oregon Supreme Court

49 P.3d 785

334 Or. 328

STATE of Oregon, Petitioner on Review, v. Robert MOORE, III, Respondent on Review.

(CC 9612-49561; CA A96947; SC S46609).

Supreme Court of Oregon.

Argued and Submitted November 3, 2000.

Decided July 11, 2002.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Robin A. Jones, Deputy Public Defender, Salem, argued the cause for respondent on review. With her on the briefs was David E. Groom, State Public Defender.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.²

DURHAM, J.

A Multnomah County jury convicted defendant of assault in the fourth degree, ORS 163.160,³ and three counts of recklessly endangering another person, ORS 163.195.⁴ Defendant appealed, arguing that the trial court's decision to admit hearsay statements made by a witness who did not testify at trial violated defendant's right to "meet the witnesses face to face" under Article I, section 11, of the Oregon Constitution,⁵ and his right "to be confronted with the witnesses against him" under the Sixth Amendment to the United States Constitution.⁶ Reviewing the case en banc the Court of Appeals reversed, holding that, under this court's case law, the hearsay evidence was inadmissible because the state had failed to produce the declarant or demonstrate that she was unavailable to testify. State v. Moore, 159 Or.App. 144, 150-51, 978 P.2d 395 (1999).

The state petitioned for review. The state concedes that the Court of Appeals correctly applied this court's existing case law under Article I, section 11, but asks this court to reexamine and discard the "unavailability" requirement in that precedent in light of recent United States Supreme Court decisions and other policy arguments. Because the state has not demonstrated that this court's previous decisions incorrectly interpret Oregon constitutional law, we decline to abandon the unavailability rule described in those decisions. Accordingly, we affirm the decision of the Court of Appeals.

The record discloses the following facts. On Christmas Day 1996, defendant, his fiancée, Olea, their daughter, and defendant's daughter from a previous marriage traveled from Tualatin to Gresham to visit defendant's ex-wife. Olea drove the car, and defendant, who had been drinking, rode in the back seat with the children. Defendant and Olea were arguing.

What happened next is the factual issue in the case. Olea did not testify at trial. The only direct testimony from an eyewitness was defendant's testimony. According to defendant, Olea pulled into a convenience store parking lot, and defendant tried to grab the car keys. Defendant testified that he accidentally hit Olea in the face with his elbow. Olea then jumped out of the moving vehicle. Defendant tried to climb into the front seat to stop the vehicle, and the vehicle came to rest in a landscaped island in the parking lot. A man pulled defendant from the vehicle, and two men held defendant to the ground until the police arrived.

The state alleged that defendant had assaulted Olea while she was driving, thus endangering the passengers in the car. Three witnesses testified in court for the prosecution. As noted, Olea was not one of them. Deborah Narro stated that Olea ran into the store, crying, shaking, and shouting, "He's taking my kids, and he's been drinking." Olea had a red mark on her face, Ms. Narro testified. Jose Narro described the same incident and observations. Mr. Narro testified that he approached defendant as defendant stepped out of the car. According to Mr. Narro, defendant tried to hit him, and Mr. Narro and another man pinned defendant to the ground until Officer Hucke of the Gresham Police Department arrived.

Officer Hucke testified that, when he arrived at the scene, defendant was intoxicated. Hucke placed defendant in his patrol car and interviewed Olea inside the store. He noted that Olea was "extremely distraught" and that there was a red mark on her face near her eye. Hucke also testified that Olea told him that she had been driving when she was struck with a Christmas package and that, at some point, she also had been punched.

At the pretrial hearing on his motion in limine, and again at trial, defendant objected to admission of Olea's hearsay statements, arguing that (1) at least some of the statements did not qualify for admission under OEC 803(2)⁷ (the excited utterance exception to the hearsay rule); and (2) admission of the hearsay evidence would violate defendant's right to confrontation under the state and federal constitutions because the state had not produced the witness or demonstrated that she was unavailable to testify. The state conceded that it had not attempted to establish that Olea was unavailable, but argued that it did not need to make that showing. The trial court agreed with the state and admitted the statements under OEC 803(2).

Defendant appealed, raising the same arguments. Because the constitutional issue disposed of all the disputed hearsay statements, the Court of Appeals began with that issue. State v. Moore, 159 Or.App. at 147-48, 978 P.2d 395. The majority concluded that this court's case law—specifically State v. Campbell, 299 Or. 633, 705 P.2d 694 (1985), and State v. Kitzman, 323 Or. 589, 920 P.2d 134 (1996)—required the state to demonstrate the witness's unavailability. Id. at 150, 978 P.2d 395. Because the state had failed to show that Olea was not available to testify at trial, the Court of Appeals held that the trial court had erred in admitting the hearsay statements. Id. at 150-51, 978 P.2d 395. Two judges dissented, arguing that the Court of Appeals was not bound by Campbell and its progeny because Campbell was based on an incorrect interpretation of federal law. Id. at 151, 978 P.2d 395. We allowed the state's petition for review to address the unavailability requirement discussed in Campbell.

Campbell concerned the admissibility of hearsay statements reported by the mother of a three-year-old declarant who was the alleged victim of sexual abuse. 299 Or. at 635, 705 P.2d 694. The trial court allowed the mother to repeat statements that her daughter had made regarding the alleged abuse and admitted the statements under OEC 803(24), the residual hearsay exception. The child did not testify, and the state did not demonstrate that the child was unavailable to testify. Although this court held that some of the statements were admissible under OEC 803(18a), the exception for complaints of sexual misconduct, the court reversed, stating:

"[B]efore any out-of-court declaration of any available living witness may be offered against a defendant in a criminal trial, the witness must be produced and declared incompetent by the court to satisfy either Article I, section 11, of the Oregon Constitution, or the Sixth Amendment to the United States Constitution."

Id. at 652, 705 P.2d 694 (footnote omitted).

The court reached that result under Article I, section 11, on "independent and separate state grounds." Id. at 648, 705 P.2d 694. However, the court applied the two-part test that the United States Supreme Court had enunciated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). 299 Or. at 648, 705 P.2d 694. In Ohio v. Roberts, the Supreme Court stated:

"The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformity with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case * * *, the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. * * *

"The second aspect operates once a witness is shown to be unavailable. * * * [T]he Clause countenances only hearsay marked with such trustworthiness that `there is no material departure from the reason of the general rule.' * * *

"The Court has applied this `indicia of reliability' requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the `substance of the constitutional protection.' * * *

"In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate `indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

Id. at 65-66, 100 S.Ct. 2531 (citations and footnotes omitted). In Campbell, this court "adopt[ed] the reasoning of the Supreme Court of the United States in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay declarations to satisfy our state constitutional confrontation clause." 299 Or. at 648,705 P.2d 694.⁸ Applying that two-part test in Campbell, the court concluded that the state had violated the defendant's right to meet the witness face to face because the state had not demonstrated that the declarant was unavailable or incompetent to testify. Id. at 651-52, 705 P.2d 694.

Since Campbell, this court has continued to apply that two-part test when a defendant alleges that the admission of hearsay violates his or her right to meet a witness face to face under Article I, section 11. See State v. Kitzman, 323 Or. at 602-05, 920 P.2d 134 (exception for complaints of sexual misconduct; holding that defendant had right to confront witnesses at pretrial availability hearing); State v. Wilson, 323 Or. 498, 514, 918 P.2d 826 (1996) (penal interest exception;...