State v. Starr
| Decision Date | 11 February 2015 |
| Docket Number | A152960.,201210792 |
| Citation | 269 Or.App. 97,344 P.3d 100 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Tracy Scott STARR, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
269 Or.App. 97
344 P.3d 100
STATE of Oregon, Plaintiff–Respondent
v.
Tracy Scott STARR, Defendant–Appellant.
201210792
A152960.
Court of Appeals of Oregon.
Argued and Submitted July 31, 2014.
Decided Feb. 11, 2015.
Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVORE, Presiding Judge, and ORTEGA, Judge, and GARRETT, Judge.*
Opinion
DEVORE, P.J.
Defendant appeals a judgment of conviction for attempted first-degree assault, ORS 163.185 and ORS 161.405, unlawful use of a weapon, ORS 166.220, menacing, ORS 163.190, and fourth-degree assault constituting domestic violence, ORS 163.160. The issue in this case is whether the victim's hearsay statements were admissible at trial. Defendant assigns error to the trial court's rulings that admitted the victim's statements during a 9–1–1 call as well as her statements to responding officers. He argues that admission of those statements violated his rights to confront a witness under the state and federal constitutions. We decline to review as plain error defendant's unpreserved assignment of error as to merger of guilty verdicts. We affirm.
I. FACTS
The police account of this case began with the victim's 9–1–1 call from a motel. The call lasted less than 30 seconds. The victim said, “I'm at the Motel 6, one—room 137. My husband pushed me down. I've been assaulted.” Officer DelCastillo, a cover officer, was the first to arrive and did so within minutes of the 9–1–1 call. He found the victim sitting on a bench, sobbing and holding a rag to her bloodied face. He noticed bruising beginning to form around her eye and blood in her hair. Without pressing for any details, he asked, “What happened?” The victim told him that “her boyfriend had beat[en] her up.” DelCastillo “got on the radio” and said that the victim had been assaulted. Officer Clough arrived at the motel about five minutes after the 9–1–1 call. She was the primary officer on the scene. Clough saw a laceration and bruising under the victim's left eye and blood in her hair on both sides of her head. The victim was still crying, shook a bit, and “seemed frightened.” Clough asked the victim
to tell her what happened. In trial testimony, Clough recounted the victim's answer:
“She told me that she had been in a dispute with her husband and it started as a verbal dispute but then he pushed her and she fell against the cement and hit her face on a—a curbing, like a headstone to a parking space.”
At that point, Clough asked the victim what defendant looked like and she used her radio to relay the description of
defendant to officers in the area in order to begin a search for him. About five or 10 minutes later, another officer found defendant in the parking lot near his truck at the other side of the motel. He was visibly intoxicated.
While at the scene, the victim gave Clough additional information. The victim told Clough that, prior to the assault, the victim and defendant had been kicked out of a bar due to a racial remark to other bar patrons. She also told Clough that she “had just moved back to the area” and did not have a permanent address. The telephone number that the victim provided Clough for contact purposes was only a “message phone number.”1
A witness's account of the incident begins earlier than the police account. Murphy had been outside of his motel room with a small group of people on the upstairs balcony overlooking the parking lot. As something got Murphy's attention, he looked below to see the victim “slumped down on the ground.” He saw her get up while defendant stood over her, go into a motel room with defendant for a few minutes, then run out toward the main exit. Murphy asked the victim if she was all right. She said that she was not and continued running away with defendant “coming out after her.” Murphy asked defendant whether he had hit the victim, and, according to Murphy, defendant replied that he had, and then threatened the group standing upstairs. Murphy told defendant that the police were on their way and that defendant needed to wait. Murphy went downstairs and walked toward defendant. Defendant went to his truck, pulled out a metal pipe, raised it above his head, and swung it at Murphy. Murphy took the pipe from defendant and subdued him with help from members of the group until the police arrived. Clough arrested defendant. He was charged with fourth-degree assault constituting domestic violence, menacing, unlawful use of a weapon, and attempted first-degree assault.
Defendant offered a conflicting version of the facts at trial. He testified that he and the victim had gone out
celebrating and drinking because they were “getting back together” and, upon arriving back at the motel, the victim fell while getting out of the truck and hit her face on the truck's door. According to defendant, he went to help the victim off the ground, at which point the group of people on the balcony, above, began shouting, and defendant told them that he was attempting to “help [his] wife.” Defendant said that a few of the men came at him, that he used the truck door as a shield, and that a jack handle fell out of the door and rolled in the parking lot.
II. PROCEEDINGS
The state moved to postpone a trial date that was set for July 19, 2012. The prosecutor indicated that the state could not find the victim, efforts to contact her were unsuccessful because calls went “straight to answering,” the victim had not returned calls, the victim's family did not have contact with her or know where she was, and the victim had failed to check in at her hotel. The trial was postponed until August 21, but the victim still did not appear. Defendant moved in limine to exclude the victim's statements during the 9–1–1 call and her statements to DelCastillo and Clough. The state sought to admit her statements under OEC 804(1)(e), permitting the admission of hearsay statements of an unavailable declarant where the declarant is absent from the hearing and the proponent of the declarant's statement has been unable to procure attendance through process or other reasonable means. Defendant argued, among other things, that the state had failed to demonstrate that the victim was unavailable
for trial, because the state had not made an attempt to locate her. Defendant objected that the victim's statements to the officers were testimonial and that admitting them would violate her constitutional confrontation rights.
To demonstrate the victim's unavailability as a witness for trial, the state presented evidence of the difficulties and its efforts from the beginning to the time of trial. The victim had not provided an address at the time of the incident, because she had recently moved and did not have a permanent address. Later, when Clough had called the victim to get an address, the victim told Clough that she was in Idaho and that she was unwilling to come back to Oregon to testify.
Silano, the director of Victim Services at the district attorney's office, testified to additional multiple attempts to contact the victim in the weeks before trial:
“[O]n June 4, 2012, * * * the advocate assigned to the case called a phone number that was listed in our database, and it was a wrong number. And she did so because the victim did not show up at grand jury * * *. On June 25, 2012, * * * the prosecuting attorney spoke to the victim.
* * * * *
“The victim had called [the prosecutor] twice. She was in California, and she wanted to keep her address confidential from * * * defendant.
* * * * *
“[On] July 2nd, 2012, [the advocate] had contact with the victim. She spoke to the victim. [The victim] gave * * * her new address in California, and * * * reported that she was going to the doctor regarding her tooth and damage to [her] eye socket. Told her I was mailing info, including crime victim compensation, and [the advocate] notified her of the July 5th 35–day call date.
* * * * *
“[O]n July 2, 2012, * * * the advocate assigned to the case then went and mailed the intro information, crime victim compensation, and a brochure * * *.”
The information mailed to the victim on July 2 was not returned as undeliverable.
Silano testified that the state had made arrangements for the victim to attend on the original trial date. The state had provided per diem...
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