State v. Steen

• Decision Date: 16 April 2009
• Docket Number: CC 03C40531.,SC S055691.,CA A128423.
• Citation: 346 Or. 143,206 P.3d 614
• Parties: STATE of Oregon, Petitioner on Review, v. Patrick Kelly STEEN, Respondent on Review.
• Court: Oregon Supreme Court

206 P.3d 614

346 Or. 143

STATE of Oregon, Petitioner on Review, v. Patrick Kelly STEEN, Respondent on Review.

CC 03C40531.

CA A128423.

SC S055691.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 4, 2008.

Decided April 16, 2009.

On review from the Court of Appeals.^*

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Anne Fujita Munsey, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

WALTERS, J.

In this criminal case, we determine the reviewability on appeal of defense counsel's deliberate decision at trial not to object to otherwise excludable hearsay testimony.

Before the Court of Appeals, defendant claimed that admission of testimonial hearsay, to which he had not objected at trial, violated his right to confront adverse witnesses under the Sixth Amendment to the United States Constitution.¹ The Court of Appeals concluded, at the first step of its analysis, that defendant had asserted "an error of law apparent on the face of the record" that was subject to appellate review under ORAP 5.45(1).² However, at the second step of its analysis, after considering various factors militating for and against review, including defense counsel's trial tactics, the court exercised its discretion to decline review and affirmed defendant's conviction. State v. Steen, 215 Or.App. 635, 641-42, 170 P.3d 1126 (2007). Although satisfied with that disposition, the state sought review in this court and asserted that it was aggrieved by the methodology that the Court of Appeals had followed. See ORS 2.520 (providing "party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review"); State v. Snyder, 337 Or. 410, 415-20, 97 P.3d 1181 (2004) (concluding that state may petition for review because of impact on future cases even if state obtained favorable disposition).

We allowed review to consider the state's contention that counsel's failure to object at trial precluded the Court of Appeals from finding error at step one of its analysis, thereby obviating the need for its exercise of discretion at the second step. We conclude that, because the record demonstrates that defense counsel made a deliberate choice not to object to the admission of the hearsay testimony, defendant's claim of error was not subject to appellate review, and the Court of Appeals should not have conducted an analysis of whether defendant's claim met the terms of ORAP 5.45(1).

The parties do not dispute the relevant facts. The state charged defendant with first-degree robbery, first-degree burglary, and two counts of second-degree assault. At a pretrial hearing, defendant waived his right to a jury trial, and the state, the court, and defense counsel all agreed that, if defendant were guilty of the crimes alleged, then he "should go to the State Hospital rather than to prison." Cognizant of that potential disposition, the parties agreed to proceed by having the court conduct a brief bench trial at which the state would present its case through the testimony of the officer at the scene. That would permit defendant, who could not remember what had happened on the night in question, as defense counsel phrased it, to "hear what the witnesses' testimony against him would be."

Two people testified at trial: defendant and the officer who arrested him. The officer testified that, when he responded to a call from the victim's apartment, he found the victim, a female, in an agitated state and her clothing ripped. Defendant was sitting on a couch, and a male, Newton, was standing over him. When the officer asked Newton to explain the situation, defendant picked up a wooden dowel and struck Newton on the side of the head. The officer subdued defendant and placed him under arrest. The officer testified that he told Newton to leave the scene and, afterwards spoke to the victim, who relayed her version of the events that had led to the summons of the officer.

Without objection by defendant, the officer then testified to the events as the victim had described them to him. According to the officer's testimony, the victim awoke in the middle of the night to loud banging at her apartment door. When she opened the door, defendant, who was a neighbor, began to yell and demand marijuana. The victim told defendant that she did not have and could not sell marijuana; defendant forced his way into the apartment and attacked the victim with the dowel. Defendant used the dowel to hold the victim down and bit her more than once. Returning to his personal observations, the officer testified that he had seen several injuries on the victim that were consistent with the events that she had described to him.

When defendant took the stand, his testimony diverged from that of the officer. Defendant told the court that he had been disturbed by noise coming from the victim's apartment and went over there to complain. The victim beckoned him to enter, and although he did not recall what happened thereafter, he felt certain that he did not strike the victim or Newton.

The court convicted defendant on all counts, but determined that, because he was unable to conform his behavior to the law, he was not legally responsible for his acts. ORS 161.295.³ The court imposed four consecutive 15-year sentences and committed defendant to the jurisdiction of the Psychiatric Security Review Board.

On appeal to the Court of Appeals, defendant argued for the first time that the officer's testimony about what the victim had reported had violated defendant's federal constitutional right to confront and cross-examine the victim.⁴ The state argued that the rules of appellate procedure precluded defendant's argument. ORAP 5.45(1) provides that "no matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court." However, that rule includes an exception: "the appellate court may consider an error of law apparent on the face of the record."⁵ Defendant argued that his claim of error was subject to review pursuant to that exception.

Before analyzing the reviewability of the federal constitutional issue that defendant assigned as error on appeal, the Court of Appeals, sua sponte, applied the "first-things-first" doctrine and considered state constitutional and subconstitutional issues before addressing the federal constitutional claim. Steen, 215 Or.App. at 639, 170 P.3d 1126. Specifically, the Court of Appeals first considered whether the officer's testimony plainly violated either the Oregon Evidence Code or the Oregon Constitution. The court determined that the testimony did not violate the rules of evidence because it was at least plausible that a trial court could admit the testimony as an excited utterance under the hearsay exception stated in OEC 803(2). Steen, 215 Or.App. at 639, 170 P.3d 1126. However, the court determined that an objection premised on the right to confrontation under Article I, section 11, of the Oregon Constitution would have been sustained, had it been asserted at trial, because the record "indisputably demonstrate[d] that, as a matter of law, the state failed to prove [the victim's] unavailability."⁶ Therefore, the court concluded at the first step of the analysis set forth in Ailes v. Portland Meadows Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991), that defendant had demonstrated, on appeal, an error of law apparent on the record. Steen, 215 Or.App. at 639-40, 170 P.3d 1126.

The court then proceeded to the second step of the Ailes analysis and considered various factors in deciding whether to exercise its discretion to review defendant's claim of error. Militating against review were the defense strategy and its possible effect on the state's decision not to call the victim as a witness. The court explained:

"First, there is a significant chance that, had defendant objected, the state would have been able to prove its case by other means. Although * * * the record does not disclose anything about [the victim's] availability, it is clear that she was neither a codefendant, an accomplice, nor incapable. It is quite likely that the state could have obtained her in-court testimony about the events that transpired before the officer arrived. Second, the state may very well have believed that it was unnecessary to do so based on statements made by defendant's attorney during the pretrial motions hearing."

Id. at 641, 170 P.3d 1126. The court concluded that it would not review the unpreserved claim of error and affirmed defendant's conviction. Id. at 641-42, 170 P.3d 1126.

The state petitioned for review, asking us to rule that the Court of Appeals had erred in affirming defendant's conviction at the second, rather than at the first, step of the Ailes analysis. The state also sought a ruling that the court had erred in applying the "first-things-first" doctrine to a claim that had not been asserted at trial. We allowed the state's petition.

The state first argues that an unpreserved Confrontation Clause claim of error never can meet the requirements of the first step of the Ailes analysis and qualify as error apparent on the record because, when a defendant does not object to hearsay testimony at trial, the trial court is entitled to assume that the defendant has waived his or her right to confront the witness. Alternatively, the state contends, a defendant who does not object to hearsay at trial may have chosen for strategic reasons to have the hearsay testimony admitted. The state argues that competing inferences about a defendant's strategy foreclose a reviewing court from concluding, in that circumstance, that there is error apparent on the record under ORAP 5.45(1). We consider each of...