Argued and submitted March 8, 2013.
On review from the Court of Appeals.[*] (CC 090647486; S.C. S060370).
Kali Montague, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review. With her on the brief was Peter Gartlan, Public Defender.
Doug M. Petrina, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
In this punitive contempt proceeding for violation of a Family Abuse Prevention Act (FAPA) restraining order, defendant challenges the admission in evidence of a deputy sheriff's certificate of service of the restraining order. Defendant asserts that admission of the certificate of service violated his confrontation right under Article I, section 11, of the Oregon Constitution, because the state did not establish that the declarant was unavailable to testify. Defendant also asserts that the document was "testimonial" evidence that was inadmissible under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The trial court concluded that the certificate was admissible despite defendant's constitutional objections, and, after defendant appealed from his ensuing conviction, the Court of Appeals affirmed. State v. Copeland, 247 Or.App. 362, 270 P.3d 313 (2011).
As explained below, we conclude that the out-of-court declaration made by the deputy sheriff who issued the certificate of service in the underlying FAPA proceeding here was not "witness" evidence that triggered defendant's confrontation right under Article I, section 11, because the certificate was an official record whose content was confined to a matter that the deputy sheriff was bound by an administrative duty to report, and it did not include investigative or gratuitous facts or opinions. In addition, we conclude that the certificate was not testimonial evidence under the Sixth Amendment. Therefore, we affirm the decision of the Court of Appeals and the judgment of the circuit court.
The pertinent facts, summarized from the Court of Appeals opinion, are few and undisputed. Defendant's then-wife, S, obtained a restraining order that prohibited defendant from coming within 150 feet of her home and other locations that she frequented, including the Savoy Tavern, where she worked. Id. at 364. The next day, Deputy Sheriff Schweitzer certified by written proof of service that he had personally served defendant with the restraining order that day. Several weeks later, S was working at the Savoy Tavern and noticed that defendant was seated at the bar of a restaurant across the street. She called the police. The responding officers determined that defendant was within 150 feet of the tavern and arrested him for violating the restraining order. Id. at 365.
The state charged defendant with punitive contempt under ORS chapter 33 for violating the restraining order. The charging instrument alleged, in part, that defendant, "having received notice of [the restraining order] did * * * willfully enter * * * [and] remain at the area 150 feet from the Savoy Tavern" in violation of the restraining order. Id. (brackets and omissions in the original; emphasis omitted). At trial, the state offered the certificate of service as evidence that defendant had notice of the restraining order. Defendant objected, arguing that admission of the certificate of service without allowing him to confront Officer Schweitzer violated his state and federal constitutional confrontation rights. The state responded that the document was admissible under the official records hearsay exception, OEC 803(8), and therefore was not subject to the confrontation protections of Article I, section 11. As to the federal constitution, the state asserted that the certificate of service was not "testimonial" and thus defendant's Sixth Amendment confrontation right was not triggered. The trial court agreed with the state and admitted the evidence. Ultimately, the trial court found defendant in contempt of court, and imposed punitive sanctions.
Defendant appealed, renewing his constitutional objections to the admission of the certificate of service. In a written opinion, the Court of Appeals affirmed. First, the court rejected defendant's federal constitutional argument, citing its prior decision in State v. Tryon, 242 Or.App. 51, 59, 255 P.3d 498 (2011), where it had held that the admission of a return of service of a restraining order did not violate the defendant's right to confrontation under the Sixth Amendment because the evidence was not testimonial. Copeland, 247 Or.App. at 364 n 1. Turning to the Oregon Constitution, the court concluded that, even though the confrontation guarantee in Article I, section 11, generally precludes the admission of hearsay evidence "unless the state establishes that (a) the declarant is unavailable to testify and (b) the statements bear 'adequate indicia of reliability, '" id. at 366 (quoting State v. Campbell, 299 Or 633, 648, 705 P.2d 694 (1985)), that guarantee does not apply to "certain 'historical exceptions' corresponding to types of hearsay that 'the framers of the Oregon Constitution would have understood * * * to have constituted an exception to the confrontation rights guarantee.'" Id. at 367 (quoting State v. William, 199 Or.App. 191, 197, 110 P.3d 1114, rev den, 339 Or 406 (2005)).
The court then noted that, in this case, defendant had acknowledged that some official records fall under an "historical exception" to the confrontation right, and that defendant had argued only that, in the context of official records, the historical exception pertained solely to proof of "collateral" matters. Id. at 366. Thus, the court concluded that "[t]he inquiry in this case reduces to whether the submission of a public record to establish an essential -- as opposed to 'collateral' -- fact in a criminal proceeding falls within such an 'historical exception' to confrontation" Id. at 367 Relying on its own prior case law, the court concluded that the official records exception to the state confrontation right applied equally to the proof of "essential" facts as it did to "collateral" facts Id. at 369 In a concurring opinion, Judge Sercombe stated that he was "not sure that the analysis in William continues to be correct" in light of State v Birchfield, 342 Or 624, 157 P.3d 216 (2007), where this court held that the admission of a criminalist's laboratory report without either requiring the state to produce the criminalist at trial to testify or demonstrating that the criminalist was "unavailable" violated Article I, section 11 Copeland, 247 Or.App. at 370-71 (Sercombe, J, concurring).
On review, defendant does not dispute that the certificate of service was a qualifying official record under OEC 803(8). That rule provides, in part, that the following are excepted from the rule against hearsay, even though the declarant is available as a witness:
"Records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth:
"(a) The activities of the office or agency;
"(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, in criminal cases matters observed by police officers and other law enforcement personnel * * *."
However, defendant asserts that the Court of Appeals erred in concluding that its admission did not violate his state and federal constitutional confrontation rights. As part of the "first things first" methodology, we consider state constitutional issues before we consider federal claims. Campbell, 299 Or at 647.
With respect to Article I, section 11, defendant argues that the Court of Appeals incorrectly concluded that the confrontation requirement does not apply when hearsay evidence, although otherwise admissible as an official record, is offered to prove an "essential" -- as opposed to collateral -- fact in a criminal case. In this case, defendant contends, the certificate of service was essential to establish a prima facie case for contempt and, therefore, its admission was subject to the confrontation protections of Article I, section 11. In particular, defendant urges that the trial court erred in admitting the certificate of service in the absence of a showing that Officer Schweitzer was unavailable to testify.
In concluding that the evidence was admissible, defendant argues, the Court of Appeals made two mistakes. First, defendant argues that the court misapplied this court's decisions discussing the existence of historical exceptions to the confrontation right under Article I, section 11. Defendant asserts that those decisions stand for the proposition that certain hearsay evidence may fall outside the protections of the confrontation right only if the evidence is "collateral" and no other means of obtaining the evidence exists. Those decisions do not, defendant urges, support the Court of Appeals' conclusion that a trial court may admit hearsay evidence to prove an element of a crime unless the declarant is unavailable to testify. Second, defendant asserts that the Court of Appeals opinion in this case is inconsistent with this court's decision in Birchfield. In that regard, defendant essentially tracks the concern expressed in Judge Sercombe's concurrence.
II. ARTICLE I, SECTION 11, ANALYSIS
In Priest v. Pearce, 314 Or 411, 415-16, 840 P.2d 65 (1992), this court held that, when construing a provision of the original Oregon Constitution, we engage in a three-part analysis. We examine the text in its context, the historical circumstances of the adoption of the provision, and the case law that has construed it. Id. Our goal is to ascertain the meaning most likely understood by those who adopted the provision. The purpose of that analysis is not to freeze the meaning of the state constitution in the mid-nineteenth century. Rather it is to identify, in light of the meaning understood by the framers, relevant underlying principles that may inform our application of the constitutional text to modern circumstances. State v. Davis, 350 Or 440, 446, 256 P.3d 1075 (2011).
Article I, section 11, provides, in part, that a defendant in a criminal prosecution has the right "to meet the witnesses face to face." It is an unqualified statement, to be sure. Nevertheless, this court has observed that "[t]here is nothing to indicate that the framers of our constitution intended thereby to do away with the well-established exceptions to the confrontation rule." State ex rel Gladden v. Lonergan, 201 Or 163, 177, 269 P.2d 491 (1954). Similarly, Thomas Cooley explained in his treatise on constitutional law that "[t]he rule that the prisoner shall be confronted with the witnesses against him does not preclude such documentary evidence as would be admissible under the rules of the common law in other cases." Thomas M. Cooley, A Treatise on the Constitutional Limitations 318 n 2 (1878). One so-called common law exception to the confrontation rule concerned documentary evidence regarding collateral facts. This court expressly acknowledged that exception to Article I, section 11, in State v. Saunders, 14 Or 300, 305, 12 P 441 (1886), overruled in part on other grounds by State v. Marsh, 260 Or 416, 490 P.2d 491 (1971), cert den sub nom O'dell v. Oregon, 406 U.S. 974 (1972). In Saunders, the court noted the rule that, ordinarily, a defendant has the right of confrontation. 14 Or at 304. Citing Cooley's treatise, the court then explained that the rule is subject to a number of exceptions:
"The rule, although sanctioned by constitutional declaration, like all general rules, has its exceptions. It does not apply to such documentary evidence to establish collateral facts, as would be admissible under the rules of the common law in other cases."
Id. The court did not apply that exception in Saunders, however, nor, since Lonergan, has the court had a further occasion to consider whether there are other types of hearsay evidence to which the confrontation right under Article I, section 11, does not apply.
A. The Campbell test
In the meantime, though, we have had several occasions to discuss in detail the general confrontation requirements of Article I, section 11. Perhaps our most extensive elaboration of those requirements occurred in Campbell. The precise issue before the court in that case was the admissibility of hearsay statements made by a three-year-old victim of sexual abuse. 299 Or at 647. We concluded that, although the testimony otherwise would be admissible under a statutory hearsay exception -- OEC 803(18a) -- that applied on its face irrespective of the availability of the declarant, its admission nevertheless foundered on the state's failure to establish the unavailability of the child declarant. Id. at 650-52. We explained that, under Sixth Amendment jurisprudence, the admission of out-of-court statements made by a declarant who does not testify at trial violates a defendant's confrontation rights unless the declarant is unavailable and the out-of-court statements have adequate indicia of reliability. Id. at 648 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled by Crawford v. Washington, 541 U.S. 36, 43-50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In particular, we applied the following analysis of the United States Supreme Court as articulated in Roberts:
"The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformity with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case * * *, the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. * * *
"The second aspect operates once a witness is shown to be unavailable. * * * [T]he Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' * * *
"The Court has applied this 'indicia of reliability' requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the 'substance of the constitutional protection. * * *
"In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." [Roberts, 448 US] at 65-66, 100 S.Ct. 2531 (citations and footnotes omitted)."
State v. Moore, 334 Or 328, 333-34, 49 P.3d 785 (2002) (quoting Roberts in explaining decision in Campbell).
In Campbell, we "adopt[ed] the reasoning of the Supreme Court of the United States in determining what constitutes unavailability of a hearsay declarant and what constitutes adequate indicia of reliability of hearsay declarations to satisfy our state constitutional confrontation clause." 299 Or at 648. We did so "on independent and separate state grounds, " thus implicitly concluding that Article I, section 11, reflected that same reasoning. Id. Applying that two-part test in Campbell, we concluded that admission of the challenged evidence had violated the defendant's right to meet the ...