State v. Belden, 499 P.3d 783

Background

Victim C was subpoenaed to appear at Kyle Belden’s trial for fourth-degree assault (domestic violence) but did not appear at the courthouse at the appointed time. A passerby, Laherty, had witnessed C’s injuries and reported statements by C about the assault.
The State sought to admit C’s out-of-court statements (claimed as excited utterances) in lieu of live testimony, arguing C was "unavailable" under Article I, § 11.
At a morning hearing the State presented pretrial contact efforts and testimony that an investigator knocked at C’s door around the time of trial; the prosecutor argued it had done everything reasonable. The trial court found C "unavailable" and admitted the hearsay; Belden was convicted.
The Court of Appeals affirmed. On review, the Oregon Supreme Court considered (1) whether constitutional "unavailability" is a legal question and the scope of the State’s burden to show it exhausted reasonably available means, and (2) whether the State met that burden here.
The Supreme Court reversed: it held (a) unavailability is a question of law; (b) the State’s burden requires showing exhaustion of measures reasonably available after a witness fails to appear (which may include steps that require a short delay); (c) defendant’s refusal of a continuance does not entirely bar appellate challenge; and (d) on these facts the State failed to show it exhausted reasonably available measures (e.g., no attempt shown to call C or contact her probation officer the morning she missed court), so C was not shown to be constitutionally unavailable. Case remanded.

Issues

Issue	State's Argument	Belden's Argument	Held
1. Standard and review of constitutional "unavailability" under Or. Const. Art I, § 11	The State relied on its pretrial efforts (subpoena, contacts, door knock) and urged that the witness’s failure to obey a subpoena can establish unavailability	The defendant argued the State must show it exhausted all reasonably available means to produce the witness, including measures available after the witness failed to appear	Court: "Unavailability" is a question of law; State must show it exhausted all reasonably available measures to produce the witness (not limited to pretrial efforts)
2. Whether measures available only after failure to appear (including those requiring delay) count toward exhaustion	The State (and Court of Appeals) downplayed post-failure measures as irrelevant in this case	Belden argued post-failure measures (e.g., calling the witness, contacting probation officer, remedial contempt) are part of the exhaustion inquiry and may require brief delay	Court: Measures reasonably available after a failure to appear—including some that may require delay—are part of the exhaustion inquiry; whether reasonable depends on case circumstances
3. Whether defendant’s objection to a continuance precludes him from challenging unavailability on appeal	The State argued Belden’s refusal of a continuance foreclosed complaint about measures that required delay	Belden argued objection does not bar appellate review, particularly for measures that would not require a continuance	Court: A defendant’s objection to a continuance does not entirely preclude appellate challenge; Harris may preclude specific situations where defendant invited the precise relief, but not categorically here
4. Whether the State exhausted reasonably available measures here	The State asserted its subpoenas, pretrial contacts, and a morning door knock were sufficient	Belden pointed to lack of proof that the State tried to call C or contact her probation officer after she failed to appear	Court: The State failed to show it exhausted reasonably available measures (no evidence it called C or contacted probation officer that morning nor that such steps would be futile); C was not shown to be constitutionally unavailable

Key Cases Cited

State v. Harris, 362 Or 55 (2017) (holds State must exhaust all reasonably available means to prove constitutional unavailability)
State v. Herrera, 286 Or 349 (1979) (explains hearsay exception only when declarant truly unavailable and necessity required)
State v. Campbell, 299 Or 633 (1985) (adopts two-part Roberts test—unavailability and reliability—for Article I, § 11 analysis)
State v. Iseli, 366 Or 151 (2020) (treats statutory unavailability under OEC 804 as a question of law)
State v. Moore, 334 Or 328 (2002) (discusses demanding necessity/unavailability standard under Article I, § 11)
State v. Birchfield, 342 Or 624 (2007) (addresses limits on hearsay admission under confrontation guarantees)
Ohio v. Roberts, 448 U.S. 56 (1980) (original two-part federal test for admitting hearsay: unavailability and reliability)
Crawford v. Washington, 541 U.S. 36 (2004) (federal confrontation-clause developments discussed for context)