250 P.3d 431
Or. Ct. App.2011Background
- In June 2007, at a house in Albany, defendant and Turvey allegedly participated in an assault on the victim, with Monroy and James among others present; Turvey admitted to being the aggressor and defendant claimed to be sleeping elsewhere.
- Officer Tapper observed the victim outside the house, terrified and visibly beaten, and the victim made statements to Tapper identifying defendant and another attacker as responsible.
- On the trial’s second day, the victim did not testify, and the State sought to admit the victim’s out-of-court statements to Tapper as hearsay under the excited utterance rule.
- The trial court considered whether the victim was unavailable under OEC 804(1) for purposes of Article I, section 11, and heard evidence regarding the State’s attempts to secure the victim’s attendance.
- Evidence presented included subpoenas sent to the victim, the victim’s attorney’s testimony, and the stepmother’s testimony about the victim’s fear and contact attempts by the prosecutor, leading to a ruling that the victim was unavailable and the statements admissible.
- The court admitted Tapper’s testimony about the victim’s statements, finding the statements admissible under OEC 803(2) and not violating Article I, section 11; on appeal, defendant challenged unavailability and the admissibility, and the court reversed and remanded for trial error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether victim's statements were admissible under Article I, section 11 | Simmons | Simmons | Unavailability not established; reversal and remand |
| Whether the State adequately proved the victim was unavailable under OEC 804(1)(e) | State | Simmons | Not adequately proven; reversal and remand |
| Whether preservation supports appellate review of unavailability | State | Simmons | Preserved; review allowed |
| Whether admitting the statements violated Article I, section 11 beyond unavailability | State | Simmons | Confrontation rights not satisfied; reversal |
| Whether the error was harmless | State | Simmons | Error not harmless; reversal |
Key Cases Cited
- State v. Nielsen, 316 Or. 611 (1993) (unavailability under Article I, §11 requires good-faith efforts)
- State v. Anderson, 42 Or.App. 29 (1979) (reasonableness of efforts to locate witnesses depends on circumstances)
- State v. Lucus, 213 Or.App. 277 (2007) (insufficient efforts to locate declarant; reversal for unavailability)
- Parkins, 346 Or. 333 (2009) (preservation analysis when issue raised inconsistently)
- State v. Cook, 340 Or. 530 (2006) (two-part framework for admissibility of hearsay by unavailable declarant)
- Ohio v. Roberts, 448 U.S. 56 (1980) (reliability requirement for hearsay to satisfy confrontation clause)