State v. Harris, 379 P.3d 539

Defendant charged with felony fourth-degree assault and harassment after a 9-1-1 call from victim E (age 16) reporting defendant struck her; trial later proceeded as a bench trial.
Trial scheduled for June 12, 2013; E had been subpoenaed but did not appear that morning despite a return of service.
Prosecutor sought admission of the 9-1-1 recording under Article I, § 11 (Confrontation Clause) arguing (1) declarant unavailable and (2) statements reliable as excited utterances.
State’s efforts to secure E: subpoena served, attempts to call nonworking numbers, prosecutor spoke to E’s mother who said E would not come; no further attempts (no law-enforcement pickup, contempt, material-witness motion, or continuance requested by prosecution).
Trial court found subpoena service sufficient to show unavailability, admitted the 9-1-1 tape, and convicted defendant of attempted misdemeanor fourth-degree assault.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 9-1-1 out-of-court statements are admissible under Article I, § 11 given the declarant’s nonappearance	State: subpoena service plus phone attempts show a good-faith effort; tape is admissible and reliable as an excited utterance	Defendant: mere service of subpoena is insufficient; state must pursue further reasonable steps to compel testimony when witness is known to be reluctant	Court: Reversed — subpoena alone (here) was legally insufficient to show unavailability; state’s efforts were minimal and additional steps were feasible

State v. Camarena, 344 Or 28 (reliability of 9-1-1 statements as excited utterances)
State v. Nielsen, 316 Or 611 (prosecution must make good-faith effort to obtain declarant’s testimony to establish unavailability)
Ohio v. Roberts, 448 U.S. 56 (framework adopted for determining unavailability and confrontation analysis)
State v. Moore, 334 Or 328 (unavailability requirement tied to ‘‘genuine necessity’’ for admitting out-of-court statements)
United States v. Mann, 590 F.2d 361 (government must make more than perfunctory efforts to secure witness before declaring unavailability)