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State v. Edmonds

Court of Appeals of Oregon

June 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KELLY LEE EDMONDS, Defendant-Appellant.

          Argued and Submitted February 27, 2017

         Clackamas County Circuit Court CR1400136 Douglas V. Van Dyk, Judge.

          Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

         Case Summary: Defendant appeals from a judgment of conviction for rape in the frst degree, ORS 163.375, challenging the trial court's admission of a short portion of a transcript under the hearsay exception for past recollection recorded, OEC 803(5). The state concedes that the evidence was not admissible on that basis, but argues that the trial court's ruling was nevertheless correct because the transcript was admissible under the hearsay exception for business records, OEC 803(6). Held: The trial court erred by admitting the contents of the transcript as a past recollection recorded under OEC 803(5). The portions of the transcript that were read to the jury were admissible as a business record under OEC 803(6). Therefore, the Court of Appeals exercised its discretion to affrm on the alternative basis proffered by the state.

         Affirmed.

         [285 Or.App. 856] LINDER, S. J.

         Defendant appeals from a judgment of conviction for rape in the first degree, ORS 163.375, challenging the trial court's admission of a short portion of a transcript under the hearsay exception for past recollection recorded, OEC 803(5). The state concedes that the evidence was not admissible on that basis, but argues that the trial court's ruling was nevertheless correct because the transcript was admissible under the hearsay exception for business records, OEC 803(6). As we will explain, we accept the state's concession, and we conclude that we should exercise our discretion to affirm on the alternative basis proffered by the state. We therefore affirm.

         We begin by relating the facts and procedural events pertinent to defendant's claim of error. Defendant was charged with raping a five-year-old girl sometime in 1994 or 1995, while she was staying in his home where his wife operated a daycare business. Defendant's theory at trial was that the victim, who was 25 years old at the time of trial, had formed a false memory of the event and was confusing it with sexual abuse committed by her stepfather, which started when she was seven years old. To rebut that defense of "recent fabrication, " the state sought to prove that the victim made statements and disclosures, both at the time of the rape and in the years that followed, that were consistent with her testimony describing the rape.[1]

         At issue here is evidence of a disclosure that the victim made in 2002, when two deputy sheriffs-Detective Delehant and Detective Clinton-interviewed the victim to determine if she was being sexually abused by her stepfather. During that interview, the victim related an instance of prior abuse that was consistent with her claim at trial that defendant had raped her while she was in daycare at his home. Delehant, for reasons that are not a matter of record, was not available to testify. Clinton, who was available as a witness, did not recall all the details of the 2002 interview [285 Or.App. 857] and, in particular, did not recall the victim's disclosure of the earlier abuse. The state therefore intended to rely on a transcript of the interview that was part of the police file on the stepfather's case.

         Defendant filed a motion in limine seeking to exclude the transcript on hearsay grounds.[2] The state responded that the transcript was admissible as a past recollection recorded, given Clinton's inability to recall the victim's disclosure. Defendant disputed its admissibility on that ground, pointing to the requirement in OEC 803(5) that a past recollection recorded must be "shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly."[3] (Emphasis added.) Defendant argued that Delehant had been responsible for having the transcript of the interview prepared and that Clinton, the only one of the two who to be called as a witness, had neither prepared nor personally reviewed the transcript for accuracy after the interview. As a result, according to defendant, the state could not satisfy the foundation needed for the past recollection recorded exception to the hearsay rule.

         The state, for its part, did not dispute that Delehant, and not Clinton, had been responsible for preparing and reviewing the transcript. But the state maintained that it could lay the requisite foundation for the exception through Clinton's testimony. According to the state, Clinton could testify to the regular procedures followed by the sheriff's office for victim interviews, which was to record the interview and then prepare a transcript of that recording that an officer present for the interview checked for accuracy. The transcript was then made a part of "their business record." In this case, it was undisputed that Delehant had signed [285 Or.App. 858] the transcript and the transcript had been placed in the file of the case that he was investigating at the time. The state urged that Clinton's description of the regular procedures followed in the sheriff's office, coupled with Delehant's signature on the transcript, established that Delehant had "made or adopted" the transcript when the details of the interview were fresh in his mind, satisfying the requirements of the past recollection recorded exception to the hearsay rule.

         The trial court agreed, concluding that the state's proffer "is likely to be a sufficient foundation" to admit the evidence as a past recollection recorded. The court therefore denied defendant's pretrial motion to exclude the evidence, while noting that the defense was free to "make its objection again" if the state did not lay the foundation that it had represented it would lay.

         At trial, the state called Clinton as a witness. Although Clinton recalled the 2002 interview of the victim generally, he did not recall the victim disclosing the prior abuse. As a predicate to asking Clinton to read a portion of the transcript of the 2002 interview, the state established that Clinton, who had been employed by the Clackamas County Sheriffs Office for 27 years and was a detective for 20 of those years, knew the procedures followed by the sheriff's office for making and keeping records of victim interviews. Clinton explained that, at the time of the 2002 interview, the normal practice for an officer investigating a criminal case was to make a recording of an interview using a cassette recorder. The officer who made the recording would then submit it to the records division, which in turn would prepare a written transcript of the recording and return both the transcript and the audio recording to the officer. The officer would check the transcript for accuracy and identify any needed corrections while the interview was fresh in the officer's mind. After that review, the audio recording and the transcript would be filed in the case file. Once the case being investigated was "over, " the audio recording usually was destroyed due to space limitations, but the written transcript was retained in the file.

         In this instance, Delehant, not Clinton, recorded the 2002 interview with the victim. Clinton therefore had [285 Or.App. 859] no role in preparing or reviewing the transcript of the 2002 interview; those tasks were Delehant's responsibility. Clinton therefore could not say whether Delehant in fact had reviewed the transcript for accuracy while the interview was fresh in Delehant's memory. Consistently with its policies, the sheriff's office had retained the written transcript of the interview in its files. In preparation for trial in this case, Clinton had reviewed the transcript, but that review did not refresh his memory of the victim's statements about the prior ...


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