State v. Velykoretskykh

• Decision Date: 28 January 2015
• Docket Number: 110646013,A149607.
• Citation: 343 P.3d 272,268 Or.App. 706
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Yegor O. VELYKORETSKYKH, Defendant–Appellant.
• Court: Oregon Court of Appeals

268 Or.App. 706

343 P.3d 272

STATE of Oregon, Plaintiff–Respondent

v.Yegor O. VELYKORETSKYKH, Defendant–Appellant.

110646013

A149607.

Court of Appeals of Oregon.

Argued and Submitted Oct. 30, 2013.

Decided Jan. 28, 2015.

Laura E. Coffin, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and HASELTON^* , Chief Judge, and SCHUMAN, Senior Judge.

Opinion

SCHUMAN, S.J.

Defendant appeals from a conviction for driving while his driver's license was suspended. ORS 811.182(1). At trial, he raised the affirmative defense that, when he was arrested on that charge, he had never received notice of the suspension. ORS 811.180(1)(b).¹ To disprove that defense, the state sought to introduce into evidence an official “Notice of Suspension” form, signed by a police officer, allegedly issued to defendant some months earlier as he was leaving the police station after a failed breath test. Defendant objected on the ground that the officer who signed the form was not present at trial, nor had the state demonstrated that the officer was unavailable and that defendant had had a prior opportunity to cross-examine him. Therefore, defendant argued that admitting the evidence violated his Sixth Amendment right to confront his accuser.²

Defendant relied on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and subsequent Oregon and federal cases. The state responded that those cases applied only when the state sought to introduce out-of-court “testimonial” evidence, and that the form was not testimonial. The court accepted the state's argument and admitted the evidence. Defendant subsequently moved for a judgment of acquittal (MJOA), arguing that, even if the form was admissible, the state nonetheless did not present constitutionally sufficient evidence that he had received it. The court denied defendant's MJOA, and the jury returned a guilty verdict. Defendant appeals, assigning error to the court's ruling that the form was admissible and the court's denial of his MJOA. We affirm.

Defendant was arrested for DUII on March 5, 2011. He failed the breath test and, as a consequence, his license was temporarily suspended. Before he left the police station, an officer filled out and signed multiple copies of an “Implied Consent Combined Report—Notice of Suspension” form (“Notice of Suspension” form) stating, among other things, that defendant had failed the breath test; that his license would be suspended until July 3, 2011; and that “[y]ou have been given a copy of this form.” At the bottom of the form, the officer who administered the breath test, Hoesly, signed the following statement: “I affirm by my signature that the foregoing events occurred.” Hoesly kept one copy of the form. Whether he gave defendant a copy became an issue when defendant was stopped for a traffic infraction during the suspension period and arrested for driving while suspended. At trial on that charge, defendant did not deny that he had been driving during the period when his license was suspended; rather, he relied on ORS 811.180(1)(b), which provides an affirmative defense to driving while suspended if “[t]he defendant had not received notice of the defendant's suspension.” According to defendant, Hoesly never gave him a copy of the Notice of Suspension. To disprove that defense, the state offered the copy of the signed form that Hoesly had retained. Hoesly, however, was not present at trial and therefore was not subject to cross-examination, nor had defendant had the opportunity to cross-examine him before trial. Defendant objected to the admission of the form, relying on Crawford. In response, the prosecutor argued that Crawford, along with subsequent Oregon and federal cases, establish that a defendant's right to confront the author of a document applies only if that document contains a statement that is “testimonial”—and that these same cases establish that the statement at issue in the present case was not. The court accepted the state's argument and admitted the evidence. Subsequently, in a MOJA, defendant raised the alternative argument that, even if the form was properly admitted, the state still failed to produce constitutionally sufficient evidence to defeat the affirmative defense. The court denied that motion. The jury found defendant guilty of misdemeanor driving while suspended, and the court sentenced him to a $500 fine. This appeal ensued.

In Crawford, involving a recording of a witness's out-of-court testimony, the Court held that a testimonial hearsay statement was inadmissible unless the state established that, with certain exceptions not relevant to the issue in this case, the declarant was both (a) unavailable, and (b) that the defendant had the opportunity to cross-examine him or her. 541 U.S. at 68–69, 124 S.Ct. 1354. The Court decided to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354. Later, in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 307, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Court applied the Crawford analysis, not to the out-of-court oral statement of a witness, but to a document—in particular, to the forensic analysis of material seized by police, certifying that the material was cocaine. The Melendez–Diaz Court also attempted to define when such documentary evidence could be considered “testimonial.” The Court noted several relevant factors: The statement was contained in a sworn affidavit, id. at 310, 129 S.Ct. 2527; the statement was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” id. at 311, 129 S.Ct. 2527 (internal citations and quotations omitted); the statement would “serve as substantive evidence against the defendant whose guilt depended on [its] nonexistence,” id. at 323, 129 S.Ct. 2527.

The Oregon appellate courts have long struggled to decide whether the United States Supreme Court would regard certain documents as testimonial. In State v. Norman, 203 Or.App. 1, 125 P.3d 15 (2005), rev. den., 340 Or. 308, 132 P.3d 28 (2006), and State v. Bergin, 231 Or.App. 36, 217 P.3d 1087 (2009), rev. den., 348 Or. 280, 230 P.3d 933 (2010), we held that documents certifying that a breath-testing machine had been tested for accuracy were not testimonial. Before Melendez–Diaz, and anticipating its outcome, we held in State v. Miller, 208 Or.App. 424, 439, 144 P.3d 1052 (2006), that laboratory reports identifying seized material as a controlled substance were testimonial and therefore inadmissible. In State v. Davis, 211 Or.App. 550, 552, 156 P.3d 93 (2007), we held that an Oregon Department of Transportation printout of a defendant's driving record was not testimonial. Davis also presented the exact question presented in this case—the admissibility of a Notice of Suspension—but we did not reach that issue, because the defendant did not claim that she never received notice, nor did she assert the “no notice” defense at trial. Id. at 556, 156 P.3d 93. State v. Alvarez–Amador, 235 Or.App. 402, 404, 232 P.3d 989 (2010), required us to decide whether a certification form from a custodian of records of the Social Security Administration, requested by a police officer for use in an identity-theft case and stating that the defendant used social security numbers that were not his, was testimonial. We held that it was testimonial. Id. at 410–11, 232 P.3d 989. And in State v. Tryon, 242 Or.App. 51, 255 P.3d 498 (2011), and State v. Copeland, 247 Or.App. 362, 270 P.3d 313 (2011), aff'd. 353 Or. 816, 306 P.3d 610 (2013), we held that a return of service of a restraining order was not testimonial.

In deciding these cases, we relied on several characteristics of the various documents and the circumstances under which their use was challenged: whether the document at issue was a sworn affidavit, whether it was used to prove an element of the crime or violation at issue, whether it was provided in response to a request from law enforcement, and whether it was prepared in fulfillment of a statutory or regulatory duty as opposed to being prepared for litigation against a particular individual. In a thorough opinion affirming our Sixth Amendment decision in Copeland, the Supreme Court identified a variety of these factors, only some of which were present in the case:

“The Court in Melendez–Diaz further explained that the forensic certificates were made for the purpose of proving a fact at trial: (1) they were sworn affidavits, thus constituting formalized materials that contained ‘the precise testimony the analysts would be expected to provide if called at trial,’ [Melendez–Diaz, 557 U.S. at 310, ––– S.Ct. at ––––]; (2) they were prepared in response to an investigative law enforcement request; and (3) under the relevant Massachusetts statute requiring production of the forensic certificates, the ‘sole purpose’ of creating the certificates was to provide prima facie evidence in a criminal proceeding. Id. at 311, 129 S.Ct. 2527.

“ * * * * * *

“[T]he certificate of service at issue here is readily distinguishable from the forensic certificates held to be testimonial in Melendez–Diaz. First, the certificate of service was not prepared in response to a request made by law enforcement during the course of an investigation. In fact, the violation of the restraining order did not occur until well after service was completed. Further, unlike in Melendez–Diaz, the statutes that required production of the certificate of service in this case, * * * demonstrate that the certificate was made for the primary purpose of ‘administration of an entity's affairs.’ Melendez–Diaz,

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