State v. Cecconi, 480 P.3d 953

Background

Defendant assaulted J on July 31, 2016; J suffered visible injuries and later testified at a probation-violation hearing about that incident. Defendant had prior convictions involving J and was on probation.
State indicted defendant; before trial it sought to admit J’s probation-hearing testimony under OEC 804(3)(a) (former testimony) and OEC 804(3)(g) (forfeiture-by-wrongdoing), arguing J was unavailable.
The state presented evidence of service attempts, victim-advocate calls, certified-mail receipt, surveillance, and jail-call recordings in which defendant discouraged/threatened J not to testify.
The trial court found J unavailable, applied both OEC 804 exceptions, and admitted her prior testimony; defendant entered a conditional guilty plea to multiple counts.
On appeal, the Court of Appeals—relying on State v. Iseli—held the state did not establish unavailability because it should have pursued additional reasonable means (notably seeking a continuance); it reversed/remanded the conviction and one probation revocation, and affirmed the other probation revocation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether declarant J was "unavailable" under OEC 804(1)(e) to admit former testimony (OEC 804(3)(a))	State: served subpoenas, made good-faith efforts (service, calls, mail, surveillance) and jail calls show futility; efforts were reasonable	Cecconi: state failed to pursue other reasonable means (e.g., continuance or intensified efforts), so J not "unavailable"	Reversed: under Iseli the totality required further reasonable efforts (continuance likely to procure J); unavailability not established
Whether forfeiture-by-wrongdoing (OEC 804(3)(g)) applies	State: defendant’s threats and history of violence caused J’s nonattendance, so he forfeited right to object	Cecconi: even with threats, state must still prove unavailability and cannot rely solely on defendant’s conduct	Not reached on merits because unavailability requirement failed; court noted defendant’s conduct is a factor but does not eliminate state’s duty to pursue other reasonable means
Whether admission violated Article I, §11 confrontation rights	State: OEC 804 analysis controls admissibility; constitutional standard not meaningfully different here	Cecconi: constitutional right requires exhausting reasonable means to produce witness	Court resolved statutory issue (OEC 804) and did not decide any separate constitutional question
Whether probation revocations based on conditional plea must be reversed if plea is withdrawn on remand	State: revocation valid where independent grounds exist	Cecconi: revocations flowing from conditional plea should be reversed/remanded	One revocation (based solely on the conditional plea) reversed and remanded; the other affirmed because trial court would have revoked on other grounds

Key Cases Cited

State v. Iseli, 366 Or. 151 (clarifies OEC 804(1)(e) unavailability analysis and requires assessing totality and "other reasonable means")
State v. Harris, 362 Or. 55 (discusses constitutional confrontation concerns and exhaustion of reasonable means)
State v. Supanchick, 354 Or. 737 (addresses forfeiture-by-wrongdoing doctrine in context of witness unavailability)
State v. Wilson, 282 Or. App. 717 (probation revocation reversal/remand when revocation resulted solely from a conditional guilty plea)
State v. Bernabo, 224 Or. App. 379 (procedure allowing withdrawal of conditional guilty plea after successful appeal)