State v. Nielsen
Jurisdiction | Oregon |
Parties | STATE of Oregon, Respondent on Review, v. Richard Andrew NIELSEN, Petitioner on Review. CC C89-0964CR; CA A62544; SC S37614. |
Citation | 853 P.2d 256,316 Or. 611 |
Court | Oregon Supreme Court |
Decision Date | 17 June 1993 |
Laura Graser, Portland, argued the cause and filed the petition for petitioner on review.
Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
Defendant was convicted of forgery after a trial to the court. An out-of-court statement of defendant's accomplice, Shelly Rimer, was admitted in evidence under the exception stated by OEC 804(3)(c), which permits admission of hearsay statements that are against the penal interest of a declarant who is unavailable as a witness. 1 Defendant argues that the admission of Rimer's statement was erroneous, because:
(1) Rimer's statement did not meet the requirements of OEC 804(1)(e) and 804(3)(C); 2 or
(2) the admission of Rimer's statement violated defendant's confrontation rights under either or both Article I, section 11, of the Oregon Constitution, 3 and the Sixth Amendment to the Constitution of the United States. 4
The Court of Appeals affirmed without opinion. State v. Nielsen, 103 Or.App. 486, 798 P.2d 269 (1990). We also affirm.
A Portland residence was burglarized. The victim's traveler's checks, keys, and personal identification were stolen. Rimer attempted to cash one of the stolen checks by posing as its owner at a store in Beaverton and forging the owner's signature on it. When a security guard tried to arrest her, Rimer fled from the store. Outside, she called out to defendant by his first name, "Richard." He approached her and said, "Baby, don't worry about it, it's okay." That exchange was overheard by police officers, who arrested both Rimer and defendant in the store's parking lot. Defendant was searched. He possessed the burglary victim's keys and personal property. Rimer also possessed some of the victim's identification.
After reading Rimer her Miranda rights, Officer Marley interviewed her at the place of arrest. At first, she denied being implicated in anything illegal but, when told by the officer that he did not believe her, confessed to forgery of checks that she had received from the burglary. The officer then recorded Rimer's statement on tape. The statement was made promptly following Rimer's arrest--not after transportation to a jail, protracted questioning, or as a part of any plea bargaining. Rimer was transported from the parking lot to the jail and later released from custody. She gave her parents' address and another Multnomah County address as places where she could be reached. When the date of defendant's trial on the forgery charge approached, the prosecutor attempted to serve a subpoena on Rimer to compel her attendance as a witness, but was unable to locate her, and she did not appear at defendant's trial.
During the trial, the arresting officer testified on direct examination:
Defense counsel timely objected as follows:
The trial court then ruled:
Defense counsel then asked the court's permission to renew the objection, by entertaining a motion to strike, "after the Court's heard this officer's testimony, because by his own police report, we'll be able to show that he was able to get her to change her story." The court agreed to entertain such a motion. After the officer testified, defense counsel moved to strike the officer's testimony recounting the hearsay statement. At that time, counsel argued:
The court denied the motion.
Our analysis proceeds in three steps. First, we consider defendant's arguments under the pertinent statute or other state law; second, we analyze defendant's state constitutional claims; and, third, we examine defendant's federal constitutional claims. State v. Esplin, 314 Or. 296, 300, 839 P.2d 211 (1992).
Rimer's statement was hearsay, because it was offered to prove the truth of the matter asserted. OEC 801(3). It is to be excluded under OEC 802 unless it fits an exception. Under the against-penal-interest exception stated in OEC 804(3)(c), the statement was admissible only if the declarant was "unavailable as a witness." OEC 804(1)(e) defines "unavailability" for the purposes of OEC 804 to include, among other things, declarant's absence from the hearing. She was absent. But absence from the hearing qualifies as "unavailability" only if the proponent of the declarant's statement has attempted, "by process or other reasonable means," to secure the declarant's attendance or testimony and has been unsuccessful.
The declarant's unavailability is a preliminary question of fact for the trial court to decide under OEC 104(1). State v. Pinnell, 311 Or. 98, 114-15, 806 P.2d 110 (1991); State v. Douglas, 310 Or. 438, 443, 800 P.2d 288 (1990). In this case, the state, as the proponent, had the burden of proving to the trial...
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