426 P.3d 238
Or. Ct. App.2018Background
- Defendant, a Mongols motorcycle club member, was charged with assault, strangulation, menacing, coercion, and kidnapping after a violent incident in which he threatened and assaulted the victim and told her the gang would "bury" her if she cooperated.
- The victim repeatedly told police and 9-1-1 dispatchers she feared retaliation from the Mongols and refused police presence at the hospital; she later failed to appear at trial despite being subpoenaed.
- The state moved in limine to admit the victim's out-of-court statements under the forfeiture-by-wrongdoing exception (OEC 804(3)(g)), arguing defendant’s wrongful conduct caused her unavailability.
- The trial court found (1) defendant engaged in wrongful conduct intended to and that did cause the victim’s nonappearance, and (2) the state had done “everything it possibly could” short of obtaining a material-witness warrant—but nevertheless ruled the state had not shown the witness was “unavailable” because it had not sought a warrant.
- The state appealed; the appellate court reviewed for legal error, accepted the trial court’s factual findings, and considered whether the state’s efforts to secure attendance were sufficient under the reasonableness standard.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the victim was “unavailable” under OEC 804(1)(e) so that OEC 804(3)(g) applies | The state argued it exhausted reasonable measures to procure attendance given defendant’s wrongdoing caused the absence and that seeking a material-witness warrant would re-victimize the witness | Defendant argued the state failed to show unavailability because it did not seek a warrant or otherwise compel attendance | Court held the state exhausted reasonable measures under the circumstances and the victim was "unavailable," so trial court erred in excluding the statements |
| Whether defendant’s wrongful conduct affects what measures are reasonable for the state to take | State argued forfeiture-by-wrongdoing means a defendant who procures absence has forfeited confrontation rights and the reasonableness inquiry should account for that | Defendant argued constitutionally and evidentiary reasonableness require more affirmative coercive steps by the state | Court held defendant’s intentional procurement of the victim’s absence is a critical factor; where defendant caused nonappearance, requiring the state to seek an arrest/warrant is not necessarily reasonable |
| Whether appellate court should resolve defendant’s cross-appeal on gang-evidence ruling | N/A (cross-appeal by defendant) | Defendant sought review of trial court’s ruling allowing evidence about Mongols’ structure and beliefs | Appellate court declined to reach cross-appeal, dismissing it as better decided on a developed trial record |
Key Cases Cited
- State v. Supanchick, 354 Or. 737, 323 P.3d 231 (Or. 2014) (codified forfeiture-by-wrongdoing doctrine and explains intent and effect elements)
- State v. Harris, 362 Or. 55, 404 P.3d 926 (Or. 2017) (state must exhaust reasonably available measures to produce witness; reasonableness standard applies)
- State v. Simmons, 241 Or. App. 439, 250 P.3d 431 (Or. Ct. App. 2011) (appellate review standard for trial-court fact findings)
- State v. Shaw, 338 Or. 586, 113 P.3d 898 (Or. 2005) (appellate discretion to decline review of intermediate rulings on cross-appeal)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (recognizes forfeiture by wrongdoing as a limited exception to Sixth Amendment confrontation rights)