Argued and Submitted November 6, 2012
Resubmitted January 7, 2013.
On review from the Court of Appeals, CC 200525537; CA
Joshua B. Crowther, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.
Michael A. Casper, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Brewer, and Baldwin, Justices.[**]
[354 Or. 739] KISTLER, J.
In 2005, the Oregon Legislature added a new exception to the prohibition against the admission of hearsay evidence. Ore. Laws 2005, ch 458, § 1; see OEC 804(3)(g). Under that exception, a declarant's hearsay statements are admissible against a party " who engaged in * * * wrongful conduct that was intended to [and did] cause the declarant to be unavailable as a witness." OEC 804(3)(g). Throughout this litigation, defendant has argued that his wife's hearsay statements do not come within the terms of that exception and that, if they do, admitting her statements violated his rights under the state and federal constitutions. The trial court
disagreed, a jury convicted defendant of aggravated murder, and the Court of Appeals affirmed the resulting judgment. State v. Supanchick, 245 Or.App. 651, 263 P.3d 378 (2012). We allowed defendant's petition for review and now affirm the Court of Appeals decision and the trial court's judgment.
The state charged defendant with aggravated murder for killing his wife. The evidence showed that defendant and his wife were estranged and that, shortly before her death, his wife had obtained a restraining order against defendant based on allegations that defendant had physically and emotionally abused her. One week after the trial court issued the restraining order, defendant filed for divorce.
[354 Or. 740] Approximately one month after defendant's wife had obtained the restraining order and three weeks after defendant had filed for divorce, defendant devised a plan to persuade his wife to recant the allegations against him, give him custody of their daughter, and leave the state. Defendant believed that his wife had no real interest in their daughter, had been indifferent to their daughter's safety, and " just want[ed] to have money and go party[.]" Defendant also believed that, if he offered his wife some money, he could persuade her to accept his offer -- namely, to recant the allegations, give him custody of their daughter, and leave Oregon. One problem, from defendant's perspective, was how to speak to his wife without her calling 9-1-1 and reporting that he was violating the restraining order.
At eleven o'clock one night, defendant took a loaded shotgun, duct tape, and a knife to his wife's house. He opened the door and went up to her bedroom, where she was reading a book in bed. He walked in carrying the shotgun, told her that " we're going to talk about this[, a]nd then [he] put the tape on her mouth so she wouldn't scream and * * * taped her arms." When asked whether he had pointed the shotgun at her, defendant replied, " Didn't need to."
As defendant later explained, his plan was to " go through the door real quick [and] subdue her to the point where * * * she's not a threat" to call 9-1-1 and report his violation of the restraining order. Defendant believed that, if he had a chance to talk with his wife before she could call 9-1-1, he would be able to persuade her, relatively quickly, to accept to his offer. Going in, defendant believed that the whole operation could be accomplished in " [a]n hour, tops."
Things did not go according to plan. His wife would not agree to give defendant custody of their daughter, nor would she agree to leave the state. The discussion that defendant had anticipated would be accomplished quickly turned into a four-hour " talk." As defendant explained, " we started talking way too much." He still believed, however, [354 Or. 741] that they " were getting stuff out" and having a meaningful conversation. He explained:
" She wasn't gonna -- she wasn't gonna leave, but we were making headway as far as her saying, Yeah, a lot of stuff [she was] doing isn't fair, and you --you know, [she] do[es] need to give [me my] money [back]. [She] shouldn't be keeping this money [that, in defendant's view, his wife had wrongfully taken from him]."
One issue that arose was how, once defendant knew that his wife would not agree to all his terms, he could keep her from reporting that he had violated the restraining order. Defendant explained that he thought that they would be able to find a middle ground; he would leave, she would " just * * * drop it," and " she will find something
that makes it -- makes it a bonus to her, you know." When asked later if he would have let his wife walk out of the house if she had asked to do so, defendant answered, " No, because we hadn't reached a -- a -- * * * Not before there was some -- not before there was a hard copy agreement * * *."
After defendant had been at his wife's house for several hours, his mother called him on his wife's cell phone, but he did not answer. He also saw his sister's husband outside the house, but he did not go out to talk to him. Defendant explained that he " wasn't there to talk to them. I was -- we [defendant and his wife] were having a good conversation." He believed that he was " getting through to [his wife] that she was really not helping [their daughter] right now." Then, defendant heard " heavy" knocking and people announcing that they were police officers. They asked his wife to come to the door, but she shouted, " I can't. I can't come to the door." At that point, defendant heard " the noise, this noise." As the officers kicked open the door of his wife's house, defendant picked up the shotgun, put a round in the chamber, and shot his wife.
When the officers spoke with defendant afterwards, they asked him two separate but related questions. The first question was why he had not let his wife leave once the officers got there. The second was why he had shot her. In answering the first question, defendant explained, " [b]ecause there had to be a way, a better option than [letting [354 Or. 742] her walk out]. A better option because now I'm gonna go to jail for whatever, for being -- violating parole [ sic ] and having a gun there." He added that he was not " sitting there weighing it. It was like, you know, there's got to be a better way to fix this or a better way to go -- for -- I don't know. Better way for my daughter to be safe and [for me] not [to] go to jail." When asked whether " shooting her [was] that better way," defendant answered, " I wasn't saying that at all."
When asked why he shot his wife, defendant initially either did not or could not accept that the possibility that he had shot her. Later, he acknowledged that, because no one else was in the house, he must have killed her. Defendant then told the officers that, when he heard " this noise," he " did a failure drill." As defendant explained, a failure drill is appropriate when you have " no chance of the -- whatever, you know, what -- your target is coming at you." He added that " [i]t's the most successful way of stopping whatever's coming at you." Having explained that a failure drill is intended to stop the " target * * * coming at you," defendant could not explain why he shot his wife rather than the officers coming through the door.
In ruling on the admissibility of statements that defendant's wife had made in applying for a restraining order and also notes that she had made for that purpose, the trial court explained that OEC 804(3)(g) requires " a finding * * * by the court that -- that the purpose -- that the defendant killed the victim with the purpose of eliminating her as a witness." The trial court then found:
" I think that the evidence so far suggests by a preponderance that that was a purpose. * * * I think that's very confusing as you read -- as you read the transcript and listen to the defendant's confession. * * * But I am satisfied that at least by a preponderance that was a reason for the -- for the homicide and I think that that satisfies the requirement under [OEC] 804(3)(g). I don't think that that rule requires that it be the primary purpose. I think that it has to be a purpose, and I think that in all probability it is."
The court also reasoned that, although OEC 804(3)(g) does not require a showing that the statements are reliable, reliability " does come up insofar as analyzing [the statements] [354 Or. 743] for their relevance" under OEC 401 and also in analyzing whether the statements' probative value outweighs their prejudicial value under OEC 403. Cf. State v. Lawson/James, 352 Ore. 724, 750-51, 757, 291 P.3d 673 (2012) (explaining that OEC 403 and other evidence code provisions " articulate minimum standards of reliability intended to apply to many types of evidence" ).
Having concluded that the wife's statements were admissible under OEC 804(3)(g), the court then considered whether those statements met the requirements of other provisions of the evidence code. It initially excluded some of the wife's notes because
they were too cryptic to be relevant. See OEC 401. It then excluded all the remaining statements because, taken as a whole, those statements were more prejudicial than probative. See OEC 403. Although the court ruled that the statements, taken as a whole, were not admissible, it invited the state to identify specific statements that it wanted to introduce. The state did so, and the trial court ruled that some of the statements in the petition for a restraining order and also some of the notes that the wife had made complied with OEC 403 and were admissible. Those notes showed that defendant had told his wife " to buy a wooden spoon so that he could beat [her] with it," that " he'd already dug the hole for [her] for when he 'got rid of [her],'" and " that he had threatened to 'slit [her] throat bilaterally.'" After considering that and other evidence, the jury convicted defendant of aggravated murder, and the Court of Appeals affirmed the resulting judgment.
The issues on which defendant focuses on review all arise out of the trial court's ruling admitting his wife's hearsay statements. Defendant argues that the evidence was insufficient to establish the mental state necessary to invoke OEC 804(3)(g) --namely, that he engaged in wrongdoing with the intent " to cause [his wife] to be unavailable as a witness."  Beyond that, defendant contends that the common-law doctrine of forfeiture by wrongdoing required not only that a party purposefully have procured the witness's [354 Or. 744] absence but also that any hearsay statements admitted under that doctrine have an independent guarantee of reliability. Defendant reasons that OEC 804(3)(g), Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution all incorporate the common-law requirement that any statements admitted under the forfeiture doctrine be reliable. Finally, defendant argues that his wife's statements were so unreliable that their admission violated the Due Process Clause of the Fourteenth Amendment. Defendant reasons that the admission of his wife's statements prejudiced him because those statements undercut his defense that he had not intentionally shot his wife.
Defendant's sufficiency argument may turn on one of two propositions. Defendant may be arguing that the evidence is insufficient to support the finding that the trial court actually made (that a purpose in killing his wife was to eliminate her as a witness). Alternatively, defendant's argument may turn on the proposition that the evidence does not support the finding that, in his view, the trial court should have made. Specifically, his argument appears to assume that OEC 804(3)(g) required the trial court to find that he intended to prevent the admission of his wife's testimony in an " ongoing matter," that he acted based on a preconceived plan or design, and that his " primary purpose" in killing her was to eliminate her as a witness.
For the wife's hearsay statements to be admissible under OEC 804(3)(g), the state had to show that defendant had " engaged * * * in wrongful conduct that was intended to [and did] cause the [wife] to be unavailable as a witness." See OEC 804(3)(g) (stating that requirement). What defendant [354 Or. 745] intended is a question of fact, and the issue for the trial court was whether the state had proved defendant's intent by a preponderance of the evidence. See State v. Carlson, 311 Ore. 201, 209, 808 P.2d 1002
(1991) (identifying the standard of proof for preliminary questions of fact bearing on the admissibility of evidence). In this case, the trial court used the correct standard of proof: It found by a preponderance of the evidence that one reason why defendant killed his wife was to eliminate her as a witness. We are bound by that factual finding if there is evidence in the record to support it. See State v. Cunningham, 337 Ore. 528, 538, 99 P.3d 271 (2004) (stating the standard of review for preliminary factual findings bearing on the admission of evidence).
As the trial court implicitly recognized, the evidence permitted a finding that defendant had more than one purpose in killing his wife. For example, the evidence permitted a finding that defendant killed his wife to prevent her from retaining custody of their daughter; that is, he believed that, while he had been away in the military, his wife had neglected their daughter and endangered her safety. His wife would not agree to give up custody of their daughter, and ...