State v. Smyth

• Decision Date: 20 June 1978
• Citation: 580 P.2d 559,34 Or.App. 899
• Parties: STATE of Oregon, Respondent, v. Brian Leonard SMYTH, Appellant.
• Court: Oregon Court of Appeals

Page 559

580 P.2d 559

34 Or.App. 899

STATE of Oregon, Respondent, v. Brian Leonard SMYTH, Appellant.

Court of Appeals of Oregon.

Argued and Submitted March 21, 1978.

Decided June 20, 1978.

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.

TANZER, Judge.

Defendant appeals from his conviction of unauthorized use of a vehicle, ORS 164.135, which defendant was found driving in Oregon and which had been reported as stolen from a sales lot in Calgary, Alberta, Canada, almost two years earlier. He was tried twice, the first trial having ended with a hung jury.

At the first trial, an agent of the owner of the lot from which the car disappeared testified that the car had been traded in on a new car purchased from his employer, that prospective purchasers were permitted to drive the car, that as a matter of practice no one would have been authorized to drive it out of Canada, and that as far as he knew defendant had not been authorized to use it. The loss was reported to the owner's insurer, who paid the loss. An agent of the insurance company testified that his company paid the loss claim, as a result of which the company became owner of the vehicle. He further testified that to the best of his knowledge no one had been authorized to use the automobile, and that he had not seen the automobile until he came to Oregon for the trial. When the jury was unable to reach a verdict, the court declared a mistrial and ordered another trial.

For the second trial, the state made no effort to obtain the presence of the two witnesses. Rather, on the morning of trial, the state offered evidence to show that the employee of the lot was in Calgary, Canada, and the agent of the insurance company who was normally in Canada was on vacation either there or in "the North Woods area of Bemidji, Minnesota."

The trial court, over defendant's objection, permitted the state to introduce transcripts of the prior trial testimony of both witnesses. Defendant assigns as error the admission of that evidence, contending that he was denied his right of confrontation of the witnesses under the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Oregon Constitution.

The admissibility of testimony given in a former trial of the same cause by a witness who is unavailable for reason of being outside the nation is permitted by ORS 41.900(8) unless there is a constitutional doctrine otherwise. That statute provides:

"Evidence may be given of the following facts:

" * * *

"(8) The testimony of a witness, deceased, or out of state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter."

Defendant's constitutional claim rests on Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). There the United States Supreme Court acknowledged the long-standing rule embodied in ORS 41.900(8) that the confrontation requirement did not apply where the witness was outside the jurisdiction, i. e., beyond the territorial limits of the court's authority to compel attendance. The Supreme Court abrogated the rule, however, pursuant to the confrontation clause because the rule is anachronistic in light of recent state and federal legislation which provides means whereby jurisdictions may obtain witnesses from other state and federal American jurisdictions. ¹

The constitutional abrogation of the rule, however, is limited to domestic jurisdictions. In the later case of Mancusi v. Stubbs 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), the Supreme Court refused to extend the holding of Barber v. Page to witnesses who are beyond the authority of the court to compel attendance because they are in other nations. The court reasoned that domestic legislation which justifies abrogation of the rule among the states and federal government does not exist internationally. Therefore, the court held, the use of prior testimony of a witness who is in another country is not violative of the confrontation clause of the Sixth Amendment "The Uniform Act to secure the attendance of witnesses from without a State, the availability of federal writs of habeas corpus ad testificandum, and the established practice of the United States Bureau of Prisons to honor state writs of habeas corpus ad testificandum, all supported the Court's conclusion in Barber that the State had not met its obligations to make a good-faith effort to obtain the presence of the witness merely by showing that he was beyond the boundaries of the prosecuting State. There have been, however, no corresponding developments in the area of obtaining witnesses between this country and foreign nations. Upon discovering that Holm resided in a foreign nation, the State of Tennessee, so far as this record shows, was powerless to compel his attendance at the second trial, either through its own process or through established procedures depending on the voluntary assistance of another government. Cf. People v. Trunnell, 19 Cal.App.3d 567, 96 Cal.Rptr. 810 (1971). We therefore hold that the predicate of unavailability was sufficiently stronger here than in Barber that a federal habeas corpus was not warranted in upsetting the determination of the state trial court as to Holm's unavailability. * * * " Mancusi v. Stubbs 408 U.S. at 212-13, 92 S.Ct. at 2313.

The theory of the dissent is precisely that of the dissent in Mancusi v. Stubbs, ² which was perforce rejected by the majority and thus has no constitutional substance. The theory has appeal, but we are not free to rewrite either the constitution or the statute.

Because there is no constitutional restriction upon the application of ORS 41.900(8) as it applies to the prior testimony of witnesses who are outside of the country, that statute controls and the transcript of the prior testimony of the two Canadian witnesses was correctly admitted.

Defendant also assigns as error the admission into evidence of Motor Vehicles Division records showing the license plates on the car defendant was found driving to be registered to a different car and owner. Defendant objected because he had requested discovery under ORS 135.815(4)(a) and these documents had not been furnished. The discovery statute was apparently violated, but the court nevertheless overruled the objection with no explanation. Hence we remand pursuant to State v. Addicks, 28 Or.App. 663, 560 P.2d 1095 (1977).

Remanded for further proceedings.

BUTTLER, Judge, dissenting.

The majority holds that a transcript of prior testimony of a witness in a criminal case may be admitted in evidence in a subsequent trial if that witness is then outside the United States, even though that witness might be willing to appear in person. Because I would prefer to reinforce, rather than dilute, the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Art. I, § 11, Oregon Constitution, ¹ I dissent. I would hold, consistent with Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), that the state must exercise a good faith effort to obtain the presence of the witness in any case before it may successfully claim that the witness is unavailable.

In the trial court, and here, the state relies solely on the statute (ORS 41.900(8)) ² and the fact, confirmed on the day of trial, that the two key witnesses were out of state. It does not pretend that it made any effort, much less a good faith effort, to obtain the two witnesses who had appeared voluntarily at the first trial even though they resided in Canada. The trial judge ruled that since the witnesses were out of state, the transcript of their prior testimony was admissible.

In order to save the statute on which the state (and the majority), relies from constitutional infirmity, it is necessary to construe it to require that the state make a good faith effort to obtain the presence of an out-of-state witness before the transcript of prior testimony may be put in evidence. Barber v. Page, supra. In Barber, the question was whether testimony of an armed robbery accomplice adduced at a preliminary hearing could be introduced at defendant's trial in Oklahoma. At the time of trial the accomplice was in a federal prison in Texas. The United States Supreme Court held that despite the inability of the Oklahoma courts to compel the witness's attendance, the state was required to exercise a "good faith" effort to obtain his presence before it could rely on the "unavailability" exception to the confrontation requirement. The court noted that "the possibility of a refusal is not the equivalent of asking and receiving a rebuff," and then said:

"In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly." 390 U.S. at 724-25, 88 S.Ct. at 1322.

The majority would have us believe that Barber applies only where the state has authority to compel attendance, which makes it easy to construe Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), as the majority does, as holding that the good faith effort rule is inapplicable to "witnesses who are beyond the authority of the court to compel attendance because they are in other nations." 34 Or.App. at 903, 580 P.2d 560. The Court...