State v. Simmons

• Decision Date: 16 March 2011
• Docket Number: 07061457; A137760.
• Citation: 250 P.3d 431,241 Or.App. 439
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Steve Dwain SIMMONS, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals

241 Or.App. 439
250 P.3d 431

STATE of Oregon, Plaintiff–Respondent,
v.
Steve Dwain SIMMONS, Jr., Defendant–Appellant.

07061457; A137760.

Court of Appeals of Oregon.

Argued and Submitted March 19, 2010.Decided March 16, 2011.

[250 P.3d 431]

Erin K. Galli argued the cause for appellant. With her on the brief was Chilton & Galli, LLC.Rene C. Holmes, Senior Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and David B. Thompson, Senior Assistant Attorney General.Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.ARMSTRONG, J.

[241 Or.App. 441] Defendant appeals a judgment of conviction for third-degree assault, ORS 163.165, and raises two assignments of error. He first argues that the trial court erroneously admitted hearsay statements that the assault victim, who did not testify at trial, had made to a police officer immediately after the assault, which had identified defendant as one of the assailants. Defendant asserts that the victim's statements should not have been admitted because the state failed to establish that the victim was unavailable as a witness, and, therefore, admission of his statements violated defendant's right under Article I, section 11, of the Oregon Constitution to confront witnesses. The state counters that defendant's first assignment is not preserved and should not be considered on appeal. We

[250 P.3d 432]

conclude that defendant adequately preserved his first assignment of error and that the state failed to establish that the victim was unavailable as a witness under Article I, section 11. We also conclude that admission of the victim's hearsay statements prejudiced defendant, requiring that we reverse defendant's conviction and remand the case to the trial court. That conclusion renders defendant's second assignment of error pertaining to his sentence moot.

We review the facts of this case in the light most favorable to the state. State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990). In June 2007, James, Monroy, and the victim went to a house in Albany. Several people were already in the house, including defendant and Turvey. At some point, a fight broke out in a bedroom, during which defendant struggled with and hit the victim. Of the people present at that time, three testified at trial about those events: Monroy, James, and Turvey.

Monroy testified that she saw defendant struggle with and hit the victim and later heard the victim yelling about being hit by someone. James remembered going into the home with the victim and entering a bedroom with him, where other people were present. James then left the bedroom, entered a bathroom, and closed its door. James did not recall the victim being attacked and, although he apparently [241 Or.App. 442] remembered the sound of voices while he was in the bathroom, he did not recall what was said or how loud the voices were. Turvey admitted that he had assaulted the victim that day.¹ He testified that he was the only assailant and that defendant was sleeping in another room during the assault.

Officer Tapper was dispatched to the area of the house in response to a report of a melee. When he arrived, Tapper saw the victim come out of the house staggering and waving his hands at Tapper. The victim “looked terrified” and was disoriented. Tapper saw that the victim had blood and “lumps and bumps all over his face” and “blood coming from an ear”; it was obvious to Tapper that the victim had recently been beaten. As will be explained below, the trial court allowed Tapper to testify about statements that the victim made to him during their initial encounter outside the house. Tapper testified that the victim said that defendant was crazy, that defendant and another man had attacked him, and that they were still in the house. A short time later, police officers entered the house and found several people, including defendant and Turvey.

During the second day of defendant's trial, the state informed the court, outside of the jury's presence, that the victim had failed to appear to testify. The state moved to admit the hearsay statements that the victim had made to Tapper. The state acknowledged that the victim had not been subpoenaed for trial, but it offered to present witnesses to testify about the admissibility of the victim's statements, “the efforts of the [s]tate to secure [the victim's] attendance,” and the victim's “expressions of fear about coming here.” When asked for his position on the state's request, defense counsel responded:

“Well, Your Honor, I would not agree that this would fall under necessarily the excited utterance [exception]. It seems to me it would fall under Rule 804 about a declarant being unavailable or making himself unavailable.

“ * * * * *

[241 Or.App. 443] “As far as [the victim] not being here, both sides actually had been in communication, and I would ask to be allowed to present my own witness who had been in communication with [the victim], who had indicated that he would not be here.

“[Court]: To rebut the reasons or the necessity of receiving the other evidence in lieu of his testimony?

“[Defense Counsel]: Yes. I'm sorry?

“[Court]: To show why the Court should not allow—

“[Defense Counsel]: Right. If there's testimony given that he's afraid to appear. I do see from the indictment that he appeared before the grand jury, and on a basic level I— I do have a problem with any evidence regarding his prior statements

[250 P.3d 433]

being submitted. I do think that it does * * * violate both Article 1, Section 11[,] of the Oregon [C]onstitution and the Sixth Amendment to the United States [C]onstitution, and I think that it totally flies in the face of Crawford v. Washington that we've all become accustomed to in the recent years.”

(Emphasis added.)

The prosecutor explained that he had spoken with the victim by telephone the day before trial and, at that time, the victim had assured him that he would be present at trial the following day. The trial court responded:

“So you knew he wasn't where he was supposed to be [on the first day of trial]. So is law enforcement—have you asked law enforcement to assist in trying to find [the victim]?

“[Prosecutor]: I have. I have also talked to others, Your Honor, and those people are here to tell you about that.”

The court then heard testimony from three witnesses, still outside of the jury's presence, about the state's efforts to obtain the victim's attendance at trial, which the state believed to be sufficient to establish that the victim was unavailable to testify at trial.

First, the court heard testimony from Houdek, an employee of the Linn County Sheriff's civil process office. Houdek testified that on September 5, 2007, she had received [241 Or.App. 444] a subpoena to be served on the victim requiring his appearance on November 14, 2007, to testify at defendant's trial. She learned that the victim was scheduled to appear in court on another matter on September 26. Houdek went to the courthouse on September 26 at the time that the victim was supposed to appear; however, the victim did not show up. She attempted to serve the subpoena on the victim a second time at a court appearance on November 5, but he again did not appear.

Second, the court heard testimony from the victim's attorney, Tibbets, who was representing the victim in a separate criminal matter. He confirmed that the victim had not appeared for the September 26 and November 5 court appearances. Tibbets also testified that he had received an unspecified number of telephone calls from the prosecutor starting in early October asking Tibbets to contact the victim and “put him in touch” with the prosecutor. Tibbets received another telephone call from the prosecutor on November 13, the day before defendant's trial, about his desire to communicate with the victim. As it turned out, Tibbets had not spoken with the victim in the week before defendant's trial.

Finally, the victim's stepmother testified. She stated that, although the victim had lived with her and the victim's father periodically over the past year, he had not been living at their home during the past month and had “mainly stay[ed] with his friends.” However, she had seen the victim several times during the past month, including the day before trial. The victim told her at their last encounter that he knew about defendant's trial, and gave her the impression that he intended to appear at it. The stepmother also testified that she had received two telephone calls from the prosecutor. The first was the day before defendant's trial, and the second was the following day. When she saw the victim the day before defendant's trial, she relayed the prosecutor's message to him to call the district attorney's office.

The state then offered Tapper as a witness to describe the statements that the victim had made and the circumstances of those statements. After hearing Tapper's testimony, the court heard argument from counsel about the admissibility of the victim's statements. The state argued [241 Or.App. 445] that the statements were admissible as excited utterances under OEC 803(2) and that their admission would not violate defendant's confrontation right under Article I, section 11.² The following colloquy ensued regarding whether the state had established that the victim was unavailable, as relevant to the latter argument.

“[Prosecutor:] Now, in order for the Court to [admit Tapper's testimony under excited utterance exception,] the Court has

[250 P.3d 434]

to find as well that there would not be any violation to the defendant's confrontation rights under the Oregon [C]onstitution. The evidence you've received establishes that. First of all[,] you've received evidence about the efforts—about the fact that [the victim] is absent from this trial, absent yesterday and absent today[;] you've also received evidence about the efforts of the...