*1 2,1991, judgmеnt Appeals and April the Court Argued and submitted decision of 17, 1993 the circuit court affirmed June OREGON, STATE OF Respondent Review, on NIELSEN, ANDREW
RICHARD Petitioner on Review. S37614)
(CC A62544; SC C89-0964CR; CA P2d
612-a *3 612-b Portland,
Laura Graser, argued cause filed for on review. petition petitioner Wasserman,
Richard D. General, Assistant Attorney Salem, on argued cause review. respondent
FADELEY, J. *4 J., an
Unis, dissented and filed in which Van opinion Hoomissen, J., joined.
FADELEY, J. after a trial to was convicted forgery
Defendant accomplice, statement of defendant’s court. An out-of-court in evidence under the Shelly Rimer, exception admitted admission of 804(3)(c), which permits stated OEC interest of a declarant that are statements Defendant argues who unavailable as witness.1 erroneous, because: of Rimer’s statement was admission (1) requirements statement did not meet the 804(l)(e) 804(3)(c);2 or of OEC (2) of Rimer’s statement violated the admission either or both confrontation under rights defendant’s Constitution,3 of the I, Oregon Article section provides: OEC 802 provided 806] “Hearsay except [OEC 801 to or as is not admissible as provided by law.” otherwise 804(3)(c)provides: OEC following 802] if is unavailable [OEC “The are not excluded the declarant
aas witness: “(c) contrary making of its so far A which was the time * * subject civil or the declarant to interest or so far tended declarant’s criminal not have made * * * position liability person would a reasonable declarant’s person it to be true. A believed statement unless liability tending expose and offered to the declarant to criminal statement exculpate clearly corroborating circumstances unless the аccused not admissible the statement.” the trustworthiness of indicate provided are in OEC 801 as “statement” and “declarant” Definitions for follows: “(1) A is: ‘statement’
“(a) assertion; or An oral or written
“(b) person, if intended as an assertion. conduct of a Nonverbal “(2) makes a statement.” A ‘declarant’ is who 804(l)(e) provides: OEC “ which declarant: ‘Unavailability a witness’ includes situations “(e) proponent of the declarant’s hearing and the Is from the absent (or case in the procure attendance the declarant’s has been unable to (c) (d) section, (b), ofthis exception paragraph or of subsection under ofan means.” testimony) by process or other reasonable attendance declarant’s provides: I, Oregon Constitution Article section * * * meet right to have the shall prosecutions, the accused all "In criminal * * face to face the witnesses
the Sixth Amendment to the Constitution of the United States.4
The Court of
affirmed
Appeals
without opinion.
State v.
Nielsen,
Or
103 App
FACTS A Portland residence was The burglarized. victim’s checks, traveler’s and keys, personal identification were stolen. Rimer cash attempted to one of the stolen checks as its owner at a posing store Beaverton and the forging owner’s it. signature on When a tried to security guard arrest her, Rimer Outside, fled from the store. she called out to defendant name, his first “Richard.” He her approached said, and “Baby, worry don’t it, about it’s That okay;” exchange overheard by police officers, who arrested both Rimer and defеndant in the store’s parking lot. Defendant was searched. He the possessed burglary victim’s keys personal Rimer also property. possessed some of the victim’s identification.
After Rimer her Miranda reading Officer rights, her Marley first, interviewed at the of place arrest. At she denied being implicated but, anything illegal when told by the officer that he did not her, believe confessed forgery checks that she had received from the The officer burglary. then recorded Rimer’s statement on tape. statement was — made promptly following Rimer’s arrest not after trans- to a portation jail, protracted or as questioning, part plea bargaining. Rimer was from transported parking the lot to the and later jail released from custody. She her gave parents’ address and another County Multnomah address as places where she could be reached. When date of defen- trial dant’s on the forgery charge approached, prosecutor attempted to serve a Rimer subpoena on compel witness, her, attendance as a but was unable to locate and she did not appear defendant’s trial. provides: Sixth Amendment Constitution United States * * * prosecutions, enjoy right “In all criminal shall accused **
confronted with the witnesses him arresting on
During testified trial, the officer examination: direct did Ms. Marley, what Officer “Q. PROSECUTOR:] [BY checks obtained the where she had you about
Rimer tell custody for? had taken her into you which pre- stated on MARLEY:] She OFFICER “A. [BY — on she believed have would been day, which vious Defеndant to 2:00, rode with the 27th, she between 11:00 Portland, committed a he where Park Block area the burglary. aby given piece paper he had been “She said friend, park in the blocks indicating that this area mutual *6 it burglaries, try and he should good to commit place awas out. another in the while he and stayed that she car
“She said burglary. they came When and committed went — items, including this all they handed her all the stolen out arrested, night which with her the she was the items she had cards, [the to tickets, belonging all credit included airline victim], # <<* >!* * “Q. when she drove to this indicated that she knew She Defendant, going to be burglary with the
location committed, is that correct?
“A. Yes. “Q. any you possess- about Did she make statements — checks, any to the one that ones that ing other in addition having her other you passed seized from or person, victim], you other than ones belonging checks [the her person? seized from
“A. Yes.
“Q. did tell about other checks she you What she passed? ‘ — forged ‘A. me that had cashed a they $20 She told — I believe Express American traveler’s check $20 victim],
brand, [a belonged [the store] that also Portland.
“Q. passed say with her when she Did she who was check? it after the right burglary,
“A. She said happened car the Defendant here. she had driven there the with — store, They drove to that and then she took the the checks and went in forgery and committed the while he waited outside.
“Q. you Did she how tell she arrived at the [store]? Yes, did. “A. she
“Q. you? What did she tell Nielsen,
“A. She Defendant, stated that Mr. had arranged transportation, they so that could come * * [store] timely objected Defense counsel as follows: “[DEFENSE Objection, your Honоr, COUNSEL]: on all, grounds. hearsay. several First of I’ll start with that. Honor, Your I
“[PROSECUTOR]: would submit that Ms. Rimer anis unavailable at this time. Knowledge witness check, of how she she obtained if obtained the she knew it was stolen when it, certainly would a statement interest, defraud, that would knowledge show and intent to ** * necessary which are proving elements of Forgery. * ** [I]nformation about check, how she obtained this interest, information that is her penal and should be admissible.
“THE [Defense COURT: counsel]? Honor, Furthermore, “[DEFENSE your COUNSEL]: — if I’m not allowed to have the chance to cross cross- if the — examine testimony mean, That I is crucial. *7 statements, going officer’s cross-examine to make those kinds I and can’t — way my no there’s client could have a fair just trial. And I think to allow those kinds of statements to in, come when essence the entire State’s case rests on — — — those just statements that that’s just that’s that by can’t be gone overcome what’s on here. —
“I also indicate It’s been indicated the officer that this is a case of a person appears who to be around some- where, just right ways can’t be found now. There are other * ** — going being made, about this more effort and so forth.”
The trial court then ruled:
“I think that the case law has things shown two need be to shown: One is which unavailability, we have. And I * * understand objection that there’s some to that *. get I I can still —evidence is that believe “The second 804.3(c) if I find that [OEC] be under
would still allowed adequate made some statements were .in out-of-court reliability. indicia of because I think admit the statements going I am to “And — Onе, exited the things come out: when she couple ‘Richard,’ so she knew yelled out is thing she the first [store] it’ll be statement, ‘Baby, worry, don’t area; his he was in — me at indicating apparently, that the to okay.’Apparently, something wrong; was that he knew some admission least fruits of his that other addition, person, with the search of possession. his were found in burglary things, together testimony with the “And I think those I’m here, [reliability], going to heard indicia of that I’ve * * questions allow the permission to asked the court’s Defense counsel then objection, by entertaining strike, to “after motion renew the testimony, by his because own the police heard this officer’s Court’s get report, able her be able show that he was to we’ll story.” agreed change such a The court to entertain moved testified, the officer defense counsel motion. After testimony recounting the state- strike officer’s argued: time, At that counsel ment. in, coming hearsay got this “[W]e’ve — false the first testimony own it either
own time, officer’s — submit, her into she is he have intimidated or I telling story implicate [defendant]. that would a different I aget when don’t even chance way,
“But especially either be her, just cannot that whole to cross-examine consideration, type not the of considera- or at least given tion my client. convict “* * * —that that whole tes- Court should strike [T]he said, can fromgo and we timony regarding what Ms. Rimer there.” the motion.
The court denied Lissy, App references to State v. 85 Or colloquy with court included (1987), making clear that P2d 345 thus 737 P2d Or aff'd considerеd, on, trial court constitutional confrontation defendant relied should, reliability” finding “adequate indicia of reference to trial court’s claims. therefore, case, that, ruling in the circumstances of this as a understood adequate guarantees of trust carried with them *8 statements worthiness, notwithstanding custody Rimer’s status.
ANALYSIS OF DEFENDANT’S CLAIMS Our analysis proceeds three we steps. First, con- sider defendant’s arguments under the pertinent statute or other law; second, state we analyze defendant’s state consti- claims; and, tutional third, we examine defendant’s federal claims. State v. constitutional Esplín, 314 Or (1992). P2d 211 Statute, 804(3)(c)
A. Under the OEC 1. Unavailability statement was hearsay, because it was 801(3).
offered to truth prove the ofthe matter asserted. OEC It is to be excluded under OEC 802 unless it fits an exception. Under the against-penal-interest exception stated in OEC 804(3)(c), the statement was if admissible only declarant 804(l)(e) was “unavailable as a witness.” OEC defines “unavailability” for the purposes of OEC 804 to include, among other things, declarant’s absence from the hearing. She was absent. But absence from the hearing as qualifies if “unavailability” only the proponent of the declarant’s statement has attempted, “by process other reasonable means,” to secure the declarant’s attendance or testimony has been unsuccessful. unavailability
The declarant’s
is a preliminary ques
104(1).
of
trial
tion
fact
court to decide under OEC
Pinnell,
State v.
State
98, 114-15,
(1991);
311 Or
attempted subpoena parents’ arresting given officer; had that she second address they persons for other leads and at those addresses asked *9 suggested third location that was Rimer at a then tried to find by if address; checks, warrant to see second residents outstanding any war- of several been arrested on Rimer had weekly police through against were conducted her, rants system; police a check computer and made such information police morning was no indication of trial. There on the concerning up available lead to follow on failed support the sufficient evidence to There was whereabouts. finding was unavailable within of fact that Rimer trial court’s the 804(l)(e). meaning of OEC Trustworthiness 2. accusing argues that Rimer’s statement
Defendant by accompanied are not defendant of criminal conduct required guarantee to make a statement trustworthiness against penal so, defendant interest admissible. This (1) argues, made while declarant because the statements were police custody, represent a in the statements was story, change occurring change a after declar from her initial by interrogating while “intimidated” officer and ant was potential punishment attempting she was to shift blame or away from herself.6 authority supports concern, the latter at least Some 804(3)(c) Commentary reflects
in to OEC the abstract. not concern with statements that defendant’s one declarant’s inculpate separate only inculpate a but also declarant defendant: argument portions by present of Rimer’s his that some Defendant concedes i.e., interest, are, Rimer, parts penal of her her that some as to “confessions, implicate defendant.” Defendant con which do not are
tends, however, parts, that the be broken into three that Rimer’s statement portion defendant was not the declarant’s of the statement 804(3)(c). severing by suggests required Although McCormick interest as OEC exculpatory por against penal inculpatory portions from of declaration (4th 1992), any part tions, § ed we do not see that on Evidence McCormick concerning exculpatory part her or defendant. The of Rimer’s declaration was knowing, willing burglary participant. the scene her She went to described as intended; burglary felony imme knowing she the fruits of the that a received money, according diately; attempted, by forgery, to them to all and she convert — forgeries parts parts concerning asserts on the two defendant statement. The — Rimer, only clearly inculpate appeal inculpate inculpate but also Rimer alone charged, forgery. in the crime defendant admitting
“A statement guilt and implicating another per- son, in custody, may made while well spring from desire to curry favor with the authorities and hence fail qualify being against the Kirkpatrick, Oregon declarant’s interest.” (2d 1989) added). Evidence 636 ed (emphasis previously
This court
has noted its concern over
inculpatory
persons
custody.
statements made
See State
(defendant’s
Farber,
295 Or
The last sentence OEC liability tending expose declarant to criminal statement exculpate unless the accused is admissible and offered clearly corroborating indicate the trustworthi circumstances added.) (Emphasis However, the ness of the statement.” — 804(3)(c) making preceding admissible of OEC sentence * * * subject the declarant that “so far tended to statement * * * person liability declar that a reasonable criminal position unless the made the statement — ant’s would not have require parallel person true” contains no believed it to be tending expose ment of corroboration for statement inculpate liability and offered to an declarant to criminal By necessary implication, the text of the clear and accused. require rule not inculpatory circumstantial corroboration does qualifies as a truth ofan statement that otherwise against penal interest.7 disagree meth- The dissent does not with the court’s odology position pervasive case, its on a this but bases police custody suspicion persons in do not tell the truth that inculpates they make a when themselves person. exclusively on less- other The dissent relies some point.8 recent federal cases for (and text) directly also to a dissent’s citation (8th Riley,
relying on United States v. 657 F2d 1377 Cir 1981), misapplied to the claim all statements seems pre- custody against penal made interest are they sumptively inculpate if also another. In that unreliable participation in the federal crime case, the declarant denied *11 7 LCDC, 749, Oregon Planning 741, v. 626 P2d See Business Council 290 Or (1981) (where statute, provision legislature express and omits includes in one 350 statute, provision it be inferred that the omission is such a in another related Corp., 221 520, 527, 352 deliberate); P2d Rosentool v. Bonanza Oil and Mine Or 138 proоf proper purpose” placed "upon in (legislature words of a would have the intended, precluded adding the words to it and this from the statute had so court statute). consideration, challenge is the confrontation clause under Where a by hearsay inquiry circum whether is itself shown to reliable analysis, post, utterance, surrounding as our indicates. stances its dissent, only inculpation concerning point a applied that is related to As charge tried and burglary. forgery was the sole on which defendant was But convicted.
with which the defendant while charged, was affirming defendant’s Her participation. admission penal inter- only est related to a state crime of potential lesser penalty. Because the statement defendant denied the (and in participation declarant’s that crime therefore no guarantee could it it), was in apply Riley held that admission defendant was reversible error. Id. Sarmiento-Perez, 1384-85. Citation to United v. States (5th 1981), F2d 1092 Cir is likewise because, in unpersuasive case, that the declarant was permitted plead guilty but one of the indicted, five counts on which he was his entangling remarks with inculpatory governmental leniency and an apparent plea bargain.
Moreover, the more recent federal cases do sup- port dissent’s of the interpretation against-penal-interest rule cases where the inculpatory statement is uttered in (5th Cir) custody. Vernor, U.S. See v. 902 F2d (“There is in the nothing record indicates Fred motivated desire to favor curry with his interrogators. There is no evidence that the FBI made police agents any to Fred or promise him they gave any reason believe that it would him if he help son, his inculpated Gary.”), cert (1990); den 498 US 922 U.S. v. Gabay, 923 F2d (11th 1991) Cir (“Yet, content very [the declarant’s] motive to shift repudiates blame or distort [the degree of culpability.”). defendant’s] — I, B. Article 11 Meet Section the Witnesses Face to Face. Stevens, 119, 140-41,
In State 311 Or P2d 92 (1991), this court stated the to be test followed analyzing I, claim under Article section that admission of hearsay statement violates a defendant’s confrontation rights: 633, 648,
“In
v. Campbell,
State
299 Or
present here. expressly above,
As the trial court considered noted reliability adequate had indicia of whether Rimer’s statement guarantees and concluded the form of of trustworthiness notwithstanding then did, the fact that she was under that it guarantee is in the fact that the statement arrest. The strongly interest and no counter- declarant’s operation. vailing fabricate is shown motivation to yet guarantee against-interest had been Because its custody, arrest, of her or affected the circumstances supports curry trial court’s favor, desire to the evidence Rimer’s first the statement was reliable. conclusion attempt keep police of blame was an focus statement to off suggestion in defendant, not it to him. There is no to shift police the record that pating statements, obtained Rimer’s incul- any promise, defendant, herself and use such leniency, promise through as a intimidation. There is no suggesting possible evidence that Rimer was unaware of the consequences upon making that she faced the statement. warnings given rights Miranda were thereunder waived before promptly statement was made. The statement was made
following transportation jail, arrest, not after to a protracted questioning, part any plea bargaining. as a per adopt invalidating
We decline to a rule se all hearsay custody and, instead, “confessions” made examine inculpatory the circumstances under which the was made. There is no evidence that the trustworthiness statement — guarantee against penal for a statement interest that a incriminating reasonable will make not a statement — herself unless it is true had eroded at the time that Rimer uttered equally. herself and defendant point, Defendant was able to cross-examine on this potential unreliability a make claim of of the statement custody setting, question in a because uttered and to credibility response being declarant’s on based her initial “against-penal-interest” different than her statement. opportunity Defendant had the to cross-examine OfficerMar- ley report accurately tо determine if the officer was able to what Rimer said.9 pursuant The admission of Rimer’s statement 804(3)(c) I,
OEC did not 11, violate Article section of Oregon Constitution.
C. Sixth Amendment Unavailability
1.
Amendment
The Sixth
Confrontation Clause does
automatically
universally require
“unavailability
an
analysis” in order to determine whether out-of-court state
are
Illinois,
US_,
ments
admissible. White v.
112
S Ct
(1992) (firmly
hearsay
L
848,
116 Ed 2d
rooted
exceptions
purposes
diag
for statements made for
of medical
utterances);
nosis and for excited
Inadi,
United State v.
9 Although
taped,
statement had been
recorded
Rimer’s
statement was not
offered
either side.
(1986) (firmly rooted
1121,
authorities made question presence trial, the witness’ of reasonableness. “Unavailability” facts outlined in the section of this supports opinion, ante, show the record conclusion good-faith attempt that the state made secure *14 testimony. Reliability
2. Indicia Discussing hearsay evidence and the confrontation § clause, Mueller, 123, & Federal Evidence Louisell (1980), observes:
‘ perplexing ‘Few in criminal evidence are more than tasks to describe the effect of the Confrontation Clause the Sixth hearsay Signals the the upon Amendment doctrine. from directions; the views of Supreme point Court in different differ, as subject potentially and while the commentators hearsay itself, in the vast as the doctrine benchmarks form ’ (Footnotes far authoritative decisions are few and omitted.) between.’ Berger, Manual 14-16 to Weinstein’s Evidence Weinstein and 14-18 comments: pro- the sixth amendment “The confrontation clause of ‘that in all the accused shall prosecutions, vides criminal * * * confronted with witnesses enjoy right be could mean that no literally, Taken this clause against him.’ falling within hearsay may evidence exception admitted against an accused unless the declarant is available to testify, extra-judicial or that no statements be admitted unless an opportunity for cross-examination has been afforded. At time, however, no personal presence has either ofthe witness or cross-examination been insisted upon indispensable. At narrowest, its could provision only also mean that the right defendant has constitutional to cross-examine those testify trial, actually witnesses who him at so that the confrontation clause and the rule hearsay are simul- taneously satisfied when evidence is pursuant admitted to a hearsay exception, although declarant does not testify. however, This has been theory, rejected expressly Court, Supreme which rejected has on several occasions notion hearsay right that the rule to confrontation congruent, fully are the Court although acknowledged that both similar protect values.
“What then does the confrontation clause mean? As
1986,
recently as
Court
Supreme
‘disclaimed
inten
general
many
tion of
proposing
answer to the
difficult
questions arising
relationship
out of the
between
Con
hearsay.’
together, however,
frontation Clause and
the
nois,
Taken
Supreme
latest
Court
pronouncements White v. Illi
US_,
736,
(1992),]
[502
112 S Ct
116 L
2d 848
Ed
Inadi,
387,
1121,
United
v.
[475
States
US
106 S Ct
89 L Ed
(1986),]
2d
Bourjaily
States,
171, 107
United
US
[483
(1987),]
S Ct
L Ed 2d
and United States v.
Owens,
(1988),]
US
Ct
[484
108 S
the accused are At particularly troublesome. the very least, a trial court shоuld not admit an inculpatory statement carefully until it has scrutinized the circumstances which *15 allegedly statement, declarant made the and the relationship between determining the witness and declarant. In whether the admit, is sufficiently statement reliable to the court should such declarant, consider factors as the role the of whether he was pending against the of custody, charges resolution the him, being whether the declarant tried accused, significance of the declar- and jointly with testimony. ant’s inculpatory statements “The constitutional test Earnest, In far from clear. New Mexicov. S Ct
against interest is ** * (1986),] 648, 2734, L 91 Ed 2d 539 [477 US inculpa although in-custody had found an state court evidentiary under which tory passed muster a rule statement 804(b)(3), Rule of the state is identical to Federal admission confrontation, right defendant’s of as ment violated the v. United by Supreme Court in Bruton interpreted States, (1968),] Ed 2d US 88 S Ct 20 L [391 Alabama, 1074, 13 Ct L Ed [380 v. US 85 S Douglas (1965)]. Court, in a majority per 2d of Supreme refusing By remanded to the state court. to opinion, curiam affirm, do majority Douglas indicated Bruton pursuant exclusion of a statement admitted demand exception, in-custody and that interest statements automatically By do not citing violate the Confrontation Clause. 530, 106 Illinois, 2056, L [476 to Lee v. US S Ct 90 Ed (1986)], 2d majority seems have indicated that an may despite be admitted a Confronta inculpatory tion (Footnotes if it challenge sufficiently reliable.” Clause omitted.) An out-of-court be admitted over a if it has “indicia of objection adequate confrontatiоn clause 805, 820, 110 497 US S Ct Wright, Idaho reliability.” L of exist reliability” 111 Ed 2d 638 “indicia Adequate alternative, within a if, in the either the statement falls “firmly “supported it is exception, rooted” of trustworthiness.” US guarantees particularized 816. This court need not consider whether against-penal- rooted” for “firmly exception qualifies adequate because there are purposes, Sixth Amendment ’ ‘ here. trustworthiness’ guarantees present ‘particularized presented must first note that the other evidence We state truth of the out-of-court at trial that corroborates the — that defendant independently to show by tending ment — used show that a statement charged cannot be guilty as “particularized guarantees a defendant has totality That must be shown trustworthiness.”10 guarantees “particularized are said substitute of trustworthiness” These which would itself missing opportunity of the declarant for cross-examination for the *16 “surround[ing]
circumstances of making the statement and that render the declarant of particularly worth belief.” Idaho v. added). Wright, supra, 819, 822 497 US at (emphasis In Idaho v. Wright, the Court stated: short,
“In corroborating the use of support evidence to a hearsay statement’s ‘particularized guarantees of trust- permit worthiness’ would admission of a presumptively unreliable by on the bootstrapping trustworthi- trial, of ness other evidence at a result we think with at odds the requirement that evidence admitted under the Confrontation so trustworthy Clause be that cross- examination marginal utility.” declarant would be of Id. at 823.
The trial cоurt ruled without the benefit’of the United Supreme States Court’s later-announced Idaho v. opinion supra. Therefore, Wright, it is understandable that the trial court considered, other among things, that circumstances also corroborated defendant’s when guilt discussing on the record whether statement had the of trust guarantees particularized worthiness necessary satisfy the Sixth Amendment Confrontation Cla use. For the trial court considered other example, evidence independently pointing defendant’s of the guilt crime charged, such the fruits of the burglary found on being defendant, when whether discussing reliability indicia were present. Such “corroborating circumstances” independently proving guilt defendant’s more properly belong in considera tion of whether error in statements is admitting hearsay harmless. Id. However that may be, the trial court’s of other use evidence corroborating defendant’s to bolster the truth of guilt the statement inculpating defendant was for a Sixth improper Amendment analysis. guarantee testimony. suggests
be a of trustworthiness No one that cross- gives guilt unnecessary examination of a live witness who evidence of would become merely independently pointing guilt. because there was also other evidence toward rule, course, requirement This affect does not of corroboration or (“[a] testimony accomplice upon of an found in 136.440 be had ORS conviction cannot testimony accomplice by of an unless it is other corroborаted evidence that tends to offense”). calling connect defendant, defendant to the commission of the out to Rimer, attempting defendant’s statement that reassure the fact other burglary produced being forged fruits of the the items were found on defendant are adequate satisfy more than corroboration of Rimer’s statements ORS 136.440. mean error
That does not was committed legal trial the improper when the court enumerated considerations correct, if the was otherwise ruling, ruling for its supporting were with i.e., if other consonant confrontation grounds for making ruling.12 existed same requirements clause itself, occasion, addi- This court has on suggested by evidence than those used admitting tional grounds Moen, 45, 59, In P2d trial court. State v. 309 Or (1990), the court stated: utterance, as an “Although offered state excited * ** also would for admission under qualify
the statement * * * exception an to the rule for statements *17 laboring under the of an event that caused person stress excitement.” case, the against
In the
statement was offered as
present
admitted on
penal
ground.
interest and
a
admitting
Where
trial
makes a correct
judge
ruling
it,
evidence but articulates an
reason for
there is no
erroneous
(“Error
reverse.
103
not
need to
See OEC
be predicated
a
admits
unless a
ruling which
or excludes evidence
upon
affected”).13
right
substantial
of the party
12
Supreme
As the
Court of the United
has noted:
States
that,
reviewing
rule
a
“[W]e do not disturb the settled
decision of
lower
сourt,
‘although
it must be affirmed if the result is
the lower court relied
correct
** *
wrong ground
gave wrong
upon
a
for this rule is
reason.’
reason
It
send a
to a lower
to reinstate a
obvious. would be wasteful to
decision
case back
court
already
appellate
which it
made
which the
court concluded
had
but
ground
power
appellate
properly be
on another
within the
of the
should
court to formulate. But it is also familiar
correctness of the
based
procedure
appellate
where the
upon
depends
of fact
court’s decision
determination
lower
made,
only jury
appellate
been
court
which
could make but which has not
”
80,
jury.’
place
Chenery,
US
take the
Securities Comm’n v.
cannot
(1943).
Ct
L Ed 626
S
(9th
1981)
(stating
City
Angeles, 650 F2d
Cir
See also Clark v.
Los
evidentiary
sufficiency
general
appellate
facts to
rule that an
court reviews
that,
support a trial court’s
to admit evidence and
decision
grounds
admissibility
given the
of the evidence
“[i]f the
district court
incorrect,
grounds
ruling
only
will
if
are no
the court’s
be reversed
there
are
admitted,”
properly
under which the evidence could
grounds
reversingbecause
determined
all
for admission
the court
but
faulty),
diary were
cert den
In this for admission of the appears evidence exist in the record. It trial court was asking right question (namely, of itself “wаs the state against custody ment declarant’s interest circum uttered?”) during qualify stances which it was in order to exception statement as an admissible to the rule. Recognizing against penal that the statement is declarant’s reliability. interest is an identification of its indicia of thought support trial court’s enumeration of other facts surplusage. though those indicia is but Even those last enu — merated facts that evidence of crime was found on defen — person may properly dant’s not be used to establish that the statement was declarant’s interest at the time and under the circumstánces when the statement was made, their enumeration does erase the correctness of the legal posi conclusion that a reasonable in declarant’s tion would believe that the statement was declarant’s penal interest. case,
In this
we know what facts the trial court relied
guess
on. We need not
as to what the trial court found as fact.
(11th
1992) (after
Accetturo,
See U.S. v.
the
966 F2d
Cir
intervening
Wright, supra,
appel-
decision in Idaho corroborating
late court
dence
whether,
“must decide
if the
evi-
guilt]
[of
adequate
considered,
is not
there were
guarantees
ment),
justify admitting”
oftrustworthiness to
the state-
(1993);
cert den_US_,
631 applied).14 changes, must Some of law the current previously of are not “corroboration” discussed factors given guilt that the statement but, of the crime defendant’s against liability, avoiding are in criminal declarant’s guarantees” itself. of the statement “trustworthiness true All of Rimer’s statements other factors are as follows: Those attempted implicated Rimer’s first statement crime. away away from her as but not shift blame from defendant attempt not evade declarant, statement does her second liability, police no there is evidence of threats her criminal possible promises other of favorable treatment or motives falsify, circumstances, would been and, under the Rimer have keenly deeply how her entire statement incrimi- aware of her. nated calling defendant,
Such factors as
out to
to
attempting
Rimer,
reassure
defendant’s
although they may
statement,
the truth of the
“corroborate”
they
reliability
statement,
because
are also indicia of
knowledge
had
show
the declarant
a basis
implicated
also
defen
declaration
her interest that
McLaughlin,
135 NH
appellate court “must decide justify considered, guarantees adequate were of trustworthiness there [admission].” Certainty be corroborat the absent declarant made the (3d 15, § Graham, ed n ing M. of Federal Evidence 989-90 804.3 factor. Handbook 1991). available, unused, points tape recording toward of Rimer’s statement but certainty. *19 reliability Rimer’s hearsay is crucial
to the accuracy conviction obtained without confronta tion of Rimer. That in turn reliability on depends whether a reasonable person situation, at that place time, and would not (and have made the statements herself defendant) unless those statements were true. Confrontation, its including cross-examination aspects, may be with dispensed if such a only reliability guarantee is present the time that the inculpatory statement is made. Whether that reliability guaran tee is present is an issue raised by Rimer’s in-custody status at the time she made the inculpatory statements.
However, as noted above under discussion of the I, 11, Article section issue, confrontation the trial judge found the indicia of reliability were present thus, with implication which we agree, that the facts or circum- stances surrounding Rimer’s custody status had not eroded the reliability guarantee at the time the statements were made. A reasonable Rimer’s position would not have made the statement unless the person believed that it was true. Although desire to curry favor well arise in a custody setting, we consider Rimer as a reasonable person who made this soon inculpatory after arrest in the circumstances which the statement was made and con- clude that that was not her motivation.
Rimer’s statements
her
against
interest
penal
are
sufficiently reliable to be admitted under the
say exception for statements
hear-
statutory
notwith-
standing
Confrontation Clause of the Sixth Amendment
to the Constitution of the United States.16
factually
The dissent cites
procedurally
сases that are
different from the
present
support
proposition
case to
that Rimer’s statement was not
States,
123,
3,
interest. The Court in Bruton v. United
391 US
128 n
88 S Ct
1620,
(1968), expressly
The decision of Court of circuit court are affirmed. ment of the
UNIS, J., dissenting. *20 address, a matter case,
In this we as of first impres and subtle the of sion, question involving interplay a difficult and federal the rule and the state Confrontation hearsay by is whether a statement a specific question Clauses. 1 declarant, made to a known hearsay person by nontestifying a law enforcement in the declarant to be officer while police a criminal defendant is admissible custody, inculpates to the under the statement-against-penal-interest exception (OEC) rule, 804(3)(c),3 and, Evidence Code hearsay2 Oregon admissible, if it is whether admissiоn of such evidence vio to confrontation rights guaranteed by lates the defendant’s I, Article of the Constitution4 and the Oregon section Amendment to the Constitution of the United States.5 Sixth (1986), Illinois, 530, 545, Ct 90 L Ed 2d is also Lee v. 476 US 106 S 514 distinguishable, involving joint trial to the court and a confession of a co-defendant jail, by police interrogation presumption produced lengthy of formal at the where a defendant, presump- unreliability, jointly the tried obtains. Lee holds that the as to trial, overcome, joint making in that admissible but tion case, case, independent present showing there was no of sufficient unlike the reliability. admitting the without indicia Lee held that error in evidence reliability by showing might state court when that be deemed harmless the Illinois again considered the case on remand. court 801(2) rule, hearsay provides purposes “[a] ‘declarant’ is For of the OEC person a statement.” who makes provides: OEC 802 “Hearsay except provided 806] or as [OEC 801 to is not admissible as by provided law.” otherwise ** * 804(3)(c) making provides at the time of its that a “statement which OEC * * * * * * * * liability subject that a declarant criminal so far tended to position made the statement person in the would not have reasonable declarant’s hearsay The rule person rule. believed it to be true” is not excluded unless the against penal offered to requirement interest an additional for statement sets forth exculpate the accused: liability expose and offered to tending criminal “A the declarant to corroborating circumstances exculpate is not admissible unless the accused clearly of the statement.” indicate the trustworthiness requirement inculpatory offered for statements There is no similar corroboration prosecution a criminal defendant. provides: I, Oregon Constitution Article section * ** right meet have the prosecutions, the accused shall “In criminal all * * face to face the witnesses provides: the United States to the Constitution of Amendment The Sixth statements, holds that majority although hearsay,
were admissible. properly view,
In Officer Mar my ley’s testimony to declar (Rimer’s) defendant, ant’s unsworn statement made while to a known police custody by the declarant to be a law officer, enforcement was not sufficiently to her contrary qualify admission under the statement-against-penal-interest hearsay exception, 804(3)(c). Moreover, OEC the admission of such evidence I, violated defendant’s confrontation under Article rights section of the Constitution and the Amend Oregon Sixth I, therefore, ment to the Constitution United States. dissent. respectfully 804(3)(c)
I. OEC While statements are not con- generally sidered trial, reliable to be admitted adequately to the statement-against-penal-interest exception rule is based on both The need to necessity reliability. *21 hearsay resort to is met the of the declarant’s showing a unavailability personal knowledge as witness at trial.7 The disserving and the nature of the statement tend to increase The and apparent reliability. psychologiсal assumption not generally common-sense belief is that does person her rashly or make a statement that his or falsely against i.e., that interest, that to criminal subjects person penal 804(3)(c) See to prosecution.8 Legislative Commentary OEC * * * prosecutions, enjoy right “In accused shall the to be all criminal the * * against him confronted with the witnesses *.” hearsay preserved counsel the and the state and federal constitutional Defense distinctly timely invoking grounds objections by for the three confrontation objection. hearsay qualified statement There is no claim in this case that rule, exemption hearsay admissibility coconspirator OEC under to the for 801(4)(b)(E). infra, See note 19. 804(l)(a)-(e) hearsay declarant is consid lists five situations in which a OEC hearsay exceptions purposes of the in OEC ered “unavailable as a witness” for the 804. subject against penal the out-of-court interest is one that tends to A statement (4th 344, § ed 2 McCormick on Evidence declarant to criminal sanctions. See 1992) (a against against penal interest “is one that would be admissible statement confession, prosecution; be a but must involve it need not declarant a criminal liability”). exposure criminal substantial (2d 1989)) Kirkpatrick, (;reprinted (“[a] Oregon Evidence 635 ed against a circumstantial interest carries reliability, generally people guaranty do not make because damaging they are to their interests unless statements that true”). they believe are scope statement-against-penal-interest exception with must be commensurate the rationale that only excepts Thus, it from the rule. “statement * * * subject making time of which was at the so far tended to * ** * * * liability [the declarant] a reason- criminal that person position able in the have declarant’s would not made believed statement unless the it to be true” against penal under admitted as interest OEC 804(3)(c). statement-against-penal-interest exception does not make admissible statement of a declarant penal not reliability interest of the declarant. The itself against penal
of a statement
interest emanates
particular
against-penal-interest
from
nature of the
knowledge
personal
statement that is based on
and not from
trustworthy
frame
that the declarant is in a
notion
(i.e.,
mind
makes at
time
for all statements that she
the same
interest).
for
that are
statements
exception
The rationale
rule
for the
pre-
against penal
incorporated
interest is
statements
requisites
admissibility
at trial. Before an out-of-court
against penal
statement is admissible as a statement
804(3)(c),
proponent
under OEC
of the evidence
must
appropriate
preponderance
show a
the evidence,
of
(1)
after
objection
“unavail-
raised,
has been
declarant is
witness,”
Thoma,
268, 276,
114,
able
State
313 Or
834 P2d
as a
(1992) (citing
Pinnell,
State v.
311 Or
P2d
* *
110(1991)),
the time of
the “statement*
its
*22
* *
* * *
*
subject
making
to
so far tended to
the declarant
* * *
liability
person
the declar-
criminal
ant’s
persоn
that a reasonable
in
position
unless
would
have made
statement
precon-
it
believed to be
Whether these factual
true.”
(c)
804(3)
admissibility of
under
have
ditions to
evidence
OEC
preliminary questions
been
are
fact to
established
104(1).
by the trial
under
State
determined
Carlson,
court
OEC
201, 211-13,
311 Or
Here, Rimer’s statement clearly contains some material interest. Rimer incul- penal explicitly pated herself criminal conduct that the trav- by admitting eler’s check that she had attempted part cash proceeds burglary and that she had cashed a forged check traveler’s elsewhere. But that does not end the inquiry because Rimer’s statement also defendant. The inculpated then is whether question Rimer’s defendant was interest.
When a declarant’s both the implicates declarant and the defendant and nontestifying is offered defendant, the' courts have shown prosecution against reluctance admit Cleary, Strong, the statement. Broun 1988). (4th Mosteller, Evidence: Cases and Materials 874 ed “ statements of a codefendant have tradi ‘[Post-arrest] tionally strong been viewed with Due to the special suspicion. implicate motivation to the defendant and to exonerate him self, what the a codefendant’s statements about defendant ordinary hearsay said or did are less credible than evi ” 530, 541, 106 2056, 90 Illinois, S Ct States, L dence.’ Lee v. Ed 2d 476 US 391 US (quoting Bruton v. United
637 (1968) (White, J., L 2d 476 20 Ed 123, 141, 88 S Ct dissenting)). against the declar in fact a statement is
“Whether the circum [penal] from must be determined ant’s Commentary Legislative to OEC case.” of each stances 636).9 804(3)(c) Kirkpatrick, supra, one (reprinted at As upon “[depending the circumstances observed, court ostensibly particular which is made, a statement which it is self-serving may disserving [i.e., neutral or in fact be either Riley, interests].” v. 657 United States declarant’s advance F2d 1981). (8th would not be Such a statement Cir 1377, 1384 against penal interest. Id. Supreme consis- United States Court of-the accomplice’s
tently
that incrimi-
held that аn
has
e.g.,
presumptively
See,
Lee v.
unreliable.
another is
nates
supra,
v.
also New Mexico
Illinois,
defendant satisfied hearsay rule). pattern where the state cases is that “The gen inculpates another, it is and both the declarant ment custody. police See, erally while in inadmissible if made held Riley, [supra]; Pal e.g., v. United States v. United States (3d Cir.), 819, 102 denied, 454 U.S. cert. F.2d 123 umbo, 639 (1981).” Strong, Cleary, Broun and 2d 90 100, L. Ed. S.Ct. Mosteller, supra, v. Sarmiento- also United States at 875. See 1980) (5th (adopting aperse Cir 1092, 1101-04 Perez, F2d as a conse induced such statements exclusion for rule of interrogation). the statement quence “However, of custodial apparent friend an if it is made to admitted supra, Cleary, Strong, Mosteller, Broun confederate.” (5th Cir (citing Briscoe, 742 F2d v. States United counterpart, FRE federal evidence Advisory Note to the Committee’s “[wjhether 804(b)(3) (then 804(b)(4)), is in fact a statement FRE states 183, 328 FRD each case.”56 from the circumstances be determined interest must 1984) (statement defendant), to brother of and United States (2d 1983) (statement Katsougrakis, 715 F2d 769 Cir approaching
arsonist who death from his burns made
friend)).
(6th
privately
Jago,
See also Fuson v.
773 F2d 55
1985) (“
(confession) admitting guilt
Cir
‘a statement
implicating
another
crime,
the same
and made
custody, might
curry
while in
well be motivаted
a desire to
qualify
being
favor with
and, hence,
the authorities
fail to
”
clearly indicating
interest,’
and, without conditions
inadmissible)
statement,
trustworthiness of the
held
*24
(interpreting
quoting
Ohio Rules of Evidence;
Ohio Rev Code
(emphasis
original)).
Ann Ev R
at
staff note
411
in
coconspirator
In the context of a
statement,
this
(1983),
Farber,
court in State
199, 212,
295 Or
guilt implicating person, spring made while well from another curry qualify being against with the and hence fail to as desire to favor authorities ” (2d 1989). Kirkpatrick, Oregon declarant’s Evidence 639 ed See also interest.’ Exception Davenport, Co-Conspiratоr Clause and the in Crimi Confrontation (1972) (“the Analysis, Harv L nal Prosecutions: A Functional Rev compatriot naming of another will almost never be the declarant’s own reliability ground”). and thus will contain little on this assurance inculpates A statement that the declarant and the defendant in criminal both activity inculpatory can into be divided collateral and noncollateral statements. *25 explains the between collateral and Professor Graham distinction noncollateral statements. statement, inculpatory “In a the defen- noncollateral the facts directly against portion the dant are in the of the statement declarant’s found treatise, presents example Judge In as an of
interest. District Jack Weinstein his goods, which states stolen with such a one in the declarant that he has statement possession charged the with of the statement admitted a defendant Commentary on goods. Berger, & Weinstein’s Evidence: stolen 4 J. Weinstein M. 804(b)(3)[03) ¶ Magistrates Rules of for the United Courts and Evidence States * (1977).* Here, items is fact that the declarant has stolen the at 804-96-97 disserving inculpates state- the defendant. Because such the declarant crimes, they only common ments can where defendant is accused of less arise appear not in the do often cases. inculpa- type inculpatory the collateral of statement is “The more common portion Here, tory inculpatory is in the of material not found declaration. interest, appears directly against in but instead statement the declarant’s example be the portion of a statement would another of the statement. An such in trial I admitted John’s that ‘John and robbed bank’ declarant’s assertion robbery. example in the In this the relevant material is contained for bank (T bank.’); instead, portion disserving segment it in the robbed the collateral bank.’).” (‘John 10, Graham, n Handbook Federal Evidence 985 robbed the on (3rd 1991) (emphasis original). § in 804.3 ed A close examination of the of totality the circum stances required order to determine whether inculpatory statement so contravenes Rimer’s penal inter est that a reasonable her position would not have made that statement unless she believed it to be true. In Wright, Idaho v. 819-20, US 110 S Ct 111 L Ed 2d (1990), the Supreme Court that, held for Con frontation Clause purposes, trustworthiness must be determined totality of the circumstances surround ing the of the making renders the declar ant’s particularly worthy belief. Other evidence at trial that corroborates the truth of the state (e.g., physical or ment. other confirming evidence from witnesses) is not to be considered in the constitutional trustworthiness analysis, because the use of corroborating evidence to support a hearsay statement’s “particularized guarantees of trustworthiness” would permit admission of a presumptively unreliable statement on by bootstrapping the trustworthiness of other evidence at trial. Id. at 823. This constitutional trustworthiness standard is the appro priate standard determining evidentiary admis sibility under proffered the statement-against- penal-interest If this exception. used, standard is not “the [against-penal-interest] trustworthiness standard will be in cases meaningless where the declarant is unavailable because the standard would permit on hearsay by relying corroboration that very must be excluded for Confron tation The Catch Raeder, Clause purposes.” Effect Of alls On Criminal Little Red Hood Riding Defendants: Meets Hearsay Devoured, And Is Loyola of Lós Wolf L Angeles Rev 941-42 (quoted dis language catchall but cussing exception, analysis equally applicable to against-penal-interest exception as “More adapted). over, the court Wright [Idaho v.] noted, is a ‘[t]here real very danger jury rely that a will on corrobora partial tion to infer the trustworthiness-of mistakenly entire 804(b)(3) Comment, Inculpatory also Federal Rules Evidence See Statements Interest, analysis Against Penal 66 Cal L Rev 1190 n 7 For an interest, Note, admissibility arguably against penal of collateral statements see *26 — Against Admissibility, Interest Rules 62 Northwestern U L Rev Declarations of (1968). 934, 947-49 ” supra, Wright, (quoting Idaho v. Id. US statement.’ 824).14 at it was not was statement spontaneous;
Rimer’s It a collateral or confederates. not made to friends cir- under coercive statement, given potentially inculpatory trial, now, be and cannot that could not cumstances of Rimer’s reliability inculpa- examined. The adequately it, while because Rimer made tory statement is attenuated police by to a known Rimer be police custody, were, motives addition, possible obvious officer. There favor with the curry falsification: the natural desire for shifting to minimize authorities, culpability by the desire others, likely hope blame or she would implicating lenient treatment if she evidence given provided more for another the desire person, for the of prosecution Any for other or a desire to deceive some reason.15 revenge, lead Rimer to might misrepre- one or more of these factors sent or defendant’s role (thereby attempting exaggerate role) in These enterprise. diminish her own the criminal circum- circumstances are not counterbalanced relevant of stances indicating reliability It defendant. is reasonable to suppose inculpating viewed disser- arguably Rimer have might ostensibly defendant to be in her interest ving statement inculpating rather than it.
I hold not shown prosecution would that the has must, as it that Rimer’s evidence, preponderance was in defendant fact truly for the the rationale prong interest. reliability is lacking against penal for statements exception statement.16 to that of Rimer’s part of the statement of other evidence at trial that corroborates truth use Wright, analysis. US Idaho best taken into account harmless error 805, 823, 3139, 111 110 Ct L Ed 2d 638 S by implicating curry someone else Rimer did in fact favor Whether or not reliable; rather, inquiry significant statement was to the into whether her “totality
proper inquiry of the circumstances” that surround is limited to the worthy particularly making belief. and that Rimer of the statement render commentators, analogized including Wigmore, have “A number of self-serving disserving inculpatory has a statement which both confession * * * exception for aspects and have concluded that the rationale When a declarant’s statement contains *27 against penal statements fact of that are the declarant’s against interest and ant’s of statements fact that are declar inculpatory interest, and which are of a defen suggested it dant, is that the most realistic method of adjusting admissibility reliability to the on which the exception part rests to exclude that of that inculpates Carlson, the defendant. Imwinkelried, Study (1983); Kiona, Materials for of Evidence 513 (2d McCormick’s Handbook the Law of Evidence 677 ed 1972). Lilley, See also United States v. 581 182, F2d 188 (8th 1978) (suggesting possibility Cir of this method of evidence). handling such Rimer’s statements are severable. apply approach I would I in this case. would hold that hearsay inculpating defendant was not 804(3)(c). admissible under OEC II. CONSTITUTIONAL CONFRONTATION RIGHTS Hearsay offered a criminal defendant also implicates rights the criminal defendant’s confrontation Oregon I, 11, under Article section of the Constitution and the Sixth Amendment to the Constitution of the United hearsay may States. The fact be admissible under a hearsay exception nullify does not either state or fed- argument. statement-against- eral constitutional 804(3) (c) penal-interest hearsay exception set forth in OEC surely apply proceedings only was meant to to criminal so right far with as consistent the constitutional of confronta- Smyth, tion. See State v. 293, 297, 300, Or 593 P2d (1979) (making respect similar observation with to a rule). particular statutory exception Even if 804(3)(c), Rimer’s statement was admissible under OEC inculpating defendant, the admission of Rimer’s statement my view, violated defendant’s Confrontation Clause rights Oregon I, under both Article section of the Constitution and the Sixth Amendment Constitution of the United States. addressing applicability right
In
of the
confron-
Oregon
tation under
I,
Article section
Constitution to
[penal]
lacking
part
statements
for that
of the declarant’s
accomplice.”
Berger,
statements
an
Weinstein and
Weinstein’s
804(b)(3)[03]
804-152, ¶
Evidence
v. Campbell,
this court
State
hearsay exception,
a particular
(1985), as stated
633, 648,
majority
“[W]hen
trial,
normally
examination
the Confrontation Clause
is unavailable. Even
requires
showing
[the declarant]
if it
then,
only
is admissible
bears
[the declarant’s] statement
reliability.’ Reliability can
inferred
‘indicia of
be
adequate
case where the evidence falls within
without more
cases, the evi
hearsay exception![17]
rooted
In other
firmly
excluded,
a showing
partic
at least absent
dence must
guarantees
ularized
of trustworthiness.”
682-85,
Cornell,
v.
314 Or
As the second component, 804(3)(c), least in its appli- OEC exception, penal-interest declarant nontestifying inculpating to a statement of a cation defendant, “firmly be viewed hardly criminal could then, Rimer’s statement is whether The inquiry, rooted.”18 17 (1992), that, 673, 684, Cornell, this court held Or 842 P2d In v. State coconspirator in exception has existed “[ajlthough hearsay * * * for statements * ** 801(4)(b)(E) forms, exemption in coconspirator OEC different clause.” deeply of the state confrontation rooted in satisfaction Supreme has clarified Court court nor the United States Neither this “firmly a function of “firmly rooted” is phrase Whether meaning rooted.” of it, both, jurisdictions recognizing or of exception, the number longevity of an statement-against-penal- longevity, else, something As to remains uncertain. or however, is, exception rule. relatively new to the exception supra, Wigmore, at 349-50. defendant bears
inculpating adequate indicia of reliability, i.e., particularized of This guarantees trustworthiness. court has looked to the precedents of the United Supreme States determining Court in what unavailability constitutes of a hearsay declarant and what constitutes adequate indicia of reliability statements satisfy our state constitu- tional Confrontation Clause. State v. Campbell, supra, Or See at 648. at 523.1 Kirkpatrick, supra, that, would hold essentially the same reasons that I have in stated discus- my sion of 804(3)(c), under OEC admissibility Rimer’s statement defendant, made while in police custody to a known Rimer to be a police officer, does bear indicia adequate reliability (particularized guarantees of trustworthiness) sufficient overcome the heavy presump- tion of unreliability satisfy Confrontation Clause concerns I, of Article section of the Oregon Constitution.19 See (a States, Bruton v. United supra nontestifying codefendant’s confession that another implicates defendant not be introduced at the pair’s form, trial in an joint unredacted even if the jury instructed to not consider the confession against defendant); Illinois, the second supra Lee (applying the Ohio v. test, Roberts two-part Court found that the Supreme “ — — against [Statements exculpatory inculpatory interest whether or English were not well-receivedat commonlaw in either American courts. The English rejected hearsay exception first courts for such statements (HL 1844),] Peerage, Eng Rep [8 Supreme Sussex United States and the Court States[, Donnelly 243, 273, followedsuit v. United 228 US 33 S (1913)].” Note, Inculpatory Ct 57 L Against Ed 820 Statements Penal Clause,
Interest
L
83 Columbia Rev
162-63
Confrontation
exception
recognized Oregon
passage
Oregon
was first
with the
Evidence Code in 1981.
*29
19
recently
hearsay
This court
nontestifying
held that the
a
statements of
coconspirator may
coconspirator exemp
a
admitted
defendant under the
(OEC 801(4)(b)(E))
hearsay
despite
any
tion
encounter
the
rule
the lack of
face-to-face
coconspirator exemption
hearsay
with
the defendant because the
to the
(1992)
firmly
673,
Cornell,
685,
is
(holding
rule
rooted. State v.
Or
P2d
314
842
394
analyzed
I,
11,
Oregon
under Article section
of the
Constitution and under the Sixth
States, citing Bourjaily
Amendment to the Constitution of the United
United
v.
States,
(1987)).
2775,
171, 183-84,
US
L
483
107 S Ct
Ed 2d 144
97
In State v.
Cornell,
678-81,
supra,
“during
314
at
was
Or
the statement
made
the
and in
course
i.e.,
conspiracy,”
objectives
furtherance
conspiracy,”
the
it was
“meant
advance the
of the
contrast,
case,
hearsay exception
id. In this
firmly
in
rooted
totality
circumstances, including
and must be evaluated under the
the fact
by
policecustody.
supra,
that the statement was made
the declarant while in
See
316
10-12,
nn
Or
638-39
and
645 confes- a codefendant’s nontestifying reliance on trial court’s violated the defendant evidence sion as substantive Richardson Clause);20 Confrontation Amendment the Sixth Marsh, 1702, L 211, 107 Ct Ed 2d S 481 US (Sixth (1987) not vio- “Confrontation Clause is Amendment codefendant’s con- nontestifying the admission of a lated * * * the instruction when limiting a proper fession with the defendant’s only to eliminate not confession is redacted existence”). name, reference to [the defendant’s] but state- reasons, admission of Rimer’s For the same Sixth defendant violated defendаnt’s inculpating ment rights. Clause Amendment Confrontation
III. CONCLUSION
inculpating
I
hold that Rimer’s statement
would
804(3)(c)
that,
under OEC
was not admissible
defendant
a
was,
if
the statement was
violation
admitting
even
it
in
The error
and federal confrontation rights.
defendant’s state
statement was not harmless. Rimer’s statement
admitting
case
prosecution’s
to the
significant
defendant
defense;
issue in
very
to the
it went to the
and devastating
cannot, therefore,
that there was little
say
at trial.211
dispute
in
state-
admitting
hearsay
likelihood that the error
Johnson,
State v.
Or
See
verdict.
ment affected the
determining
standard for
(applying
Van this joins opinion. defines defendant.” involved Minn L Rev Hearsay: Exemptions From The Constitutional issues of this case as the court case evidence (i.e., In Kirkpatrick suggests Lee v. too against explicitly large th[e] involving (Emphasis case) extent Illinois, case as 682-83 Confrontation class is a factor “reject[ed] to which the a confession added). simple meaningful US that the 530, 544 consider Clause ‘declaration [prosecution’s] an centrality challenge. Kirkpatrick, accomplice Confrontation n 5, 106 evaluating against penal of the evidence S Unavailability Ct which categorization bears 2056, 90 Clause whether incriminates interest.’ directly analysis. We L Ed 2d 514 to the Confrontation to admit Requirement, on the central That prosecutor’s a criminal hearsay concept (1986), decide And