State v. Nielsen

Citation853 P.2d 256,316 Or. 611
PartiesSTATE of Oregon, Respondent on Review, v. Richard Andrew NIELSEN, Petitioner on Review. CC C89-0964CR; CA A62544; SC S37614.
Decision Date17 June 1993
CourtSupreme Court of Oregon

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.

FADELEY, Justice.

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:

"Q. [BY PROSECUTOR:] Officer Marley, what did Ms. Rimer tell you about where she had obtained the checks which you had taken her into custody for?

"A. [BY OFFICER MARLEY:] She stated on the previous day, which would have been the--she believed on the 27th, between 11:00 and 2:00, she rode with the Defendant to the Park Block area in Portland, where he committed a burglary.

"She said that he had been given a piece of paper by a mutual friend, indicating that this area in the park blocks was a good place to commit burglaries, and he should try it out.

"She said that she stayed in the car while he and another person went in and committed the burglary. When they came out they handed her all the stolen items, including this--all the items she had with her the night she was arrested, which included airline tickets, credit cards, all belonging to [the victim].

" * * * * *

"Q. She indicated that she knew when she drove to this location with the Defendant, that a burglary was going to be committed, is that correct?

"A. Yes.

"Q. Did she make any statements to you about possessing any other checks, in addition to the one that--ones that you seized from her person, or having passed any other checks belonging to [the victim], other than the ones you seized from her person?

"A. Yes.

"Q. What did she tell you about other checks she passed?

"A. She told me that they had cashed a $20--or forged a $20 American Express traveler's check--I believe is the brand, that also belonged to [the victim], at [a store] in Portland.

"Q. Did she say who was with her when she passed that check?

"A. She said it happened right after the burglary, and that she had driven there in the car with the Defendant here. They drove to that store, and then she took the--the checks and went in and committed the forgery while he waited outside.

"Q. Did she tell you how she arrived at the [store]?

"A. Yes, she did.

"Q. What did she tell you?

"A. She stated that Mr. Nielsen, the Defendant, had arranged transportation, so that they could come to the [store] * * *."

Defense counsel timely objected as follows:

"[DEFENSE COUNSEL]: Objection, your Honor, on several grounds. First of all, hearsay. I'll start with that.

"[PROSECUTOR]: Your Honor, I would submit that Ms. Rimer is an unavailable witness at this time. Knowledge of how she obtained the check, if she knew it was stolen when she obtained it, would certainly be a statement against interest, that would show knowledge and intent to defraud, which are necessary elements of proving Forgery. * * * [I]nformation about * * * how she obtained this check, is information that is against her penal interest, and should be admissible.

"THE COURT: [Defense counsel]?

"[DEFENSE COUNSEL]: Furthermore, your Honor, if I'm not allowed to have the chance to cross--cross-examine her--That testimony is crucial. I mean, if the officer's going to make those kinds of statements, and I can't cross-examine--there's no way my client could have a fair trial. And I just think to allow those kinds of statements to come in, when in essence the entire State's case rests on those statements--that that's just--that's--that just can't be overcome by what's gone on here.

"I also indicate--It's been indicated by the officer that this is a case of a person who appears to be around somewhere, just can't be found right now. There are other ways of going about this * * *--more effort being made, and so forth."

The trial court then ruled:

"I think that the case law has shown that two things need to be shown: One is unavailability, which we have. And I understand that there's some objection to that * * *.

"The second is that I believe I can still get--evidence would still be allowed in under [OEC] 804.3(c) if I find that the out-of-court statements were made in some adequate indicia of reliability. 5

"And I am going to admit the statements because I think--a couple of things come out: One, when she exited the [store] the first thing she yelled out is 'Richard,' so she knew he was in the area; his statement, 'Baby, don't' worry, it'll be okay.' Apparently, indicating that the--apparently, to me at least some admission that he knew something was wrong; in addition, with the search of his person, that other fruits of the burglary were found in his possession.

"And I think those things, together with the testimony that I've heard here, indicia of [reliability], that I'm going to allow the questions * * *."

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:

"[W]e've got this hearsay statement coming in, and by the own--officer's own testimony it was either false the first time, or I submit, she is--he may have intimidated her into telling a different story that would implicate [defendant].

"But either way, especially when I don't even get a chance to cross-examine her, that whole statement just cannot be given any consideration, or at least not the type of consideration to convict my client.

" * * * [T]he Court should strike that--that whole testimony regarding what Ms. Rimer said, and we can go from there."

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).

A. Under the Statute, OEC 804(3)(c)
1. Unavailability

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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