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State v. Harris

Supreme Court of Oregon

October 19, 2017

STATE OF OREGON, Petitioner on Review,
KENNETH JAMES HARRIS, aka Kenneth James Harris-Maynard, aka Kenneth James Maynard, Respondent on Review.

          Argued and submitted May 9, 2017.

         On review from the Court of Appeals No. (CC 12FE0978; CA A154977).[*]

          Gregory A. Rios, Assistant Attorney General, Salem, argued the cause for petitioner on review. Jennifer S. Lloyd, Assistant Attorney General, fled the brief, joined by Gregory A. Rios. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          John Evans, Deputy Public Defender, Salem, argued the cause and fled the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Margaret Garvin, Portland, fled the brief for amicus cur-iae National Crime Victim Law Institute at Lewis & Clark Law School. Also on the brief was Rebecca S.T. Khalil.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, and Nakamoto, Justices, and Baldwin, Senior Justice pro tempore. [**]

         [362 Or. 56] Case Summary: In a criminal case, the trial court admitted hearsay evidence over the defendant's objection that the state had failed to establish that its witness was unavailable and so the evidence was barred by his constitutional confrontation right. Held: (1) when the state seeks to admit hearsay evidence over a confrontation objection, it must affirmatively establish that the witness is unavailable, meaning that the state has exhausted reasonable means of obtaining the witness; (2) serving a subpoena on a witness, without more, does not generally constitute exhaustion of reasonable means; and (3) because defendant had objected to a continuance to allow the state to pursue further means of obtaining the witness, he could not now complain that the court erred in finding that the witness was unavailable.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

          [362 Or. 57]

          LANDAU, J.

         Article I, section 11, of the Oregon Constitution provides a criminal defendant the right "to meet the witnesses face to face." That right of confrontation is not absolute, though. If the state shows that a witness is "unavailable, " it may offer reliable hearsay evidence without presenting a live witness at trial. The issue in this case is what is required to establish that a witness is "unavailable."

         In this case, the state issued a subpoena for a witness against defendant, and the witness did not appear for trial. The state then offered hearsay evidence in lieu of live testimony, arguing that the witness's failure to appear in response to the subpoena sufficed to establish her unavailability. Defendant argued that a witness is unavailable for confrontation purposes only when the state has exhausted all reasonable means of securing the appearance of the witness. Once the state became aware that its witness would not appear, he argued, it could have taken any number of additional actions to secure her appearance, but did not do so. The trial court offered to continue the trial to allow the state to take such additional steps, but defendant objected. The trial court then concluded that the state had made reasonable efforts to produce the witness and admitted the hearsay.

         The Court of Appeals reversed, holding that "more could have been done" to produce the witness at trial. State v. Harris. 279 Or.App. 446, 457, 379 P.3d 539 (2016). We conclude that, to establish unavailability for Article I, section 11, purposes, the state must show that it is unable to produce a witness after exhausting reasonable means of doing so. In most cases, the state will not be allowed simply to rely on a subpoena. In this case, however, defendant objected to a continuance that would have enabled the state to pursue other means of securing its witness. Under the circumstances, defendant cannot be heard now to complain that the state did not exhaust those measures. We therefore reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

         The relevant facts are not in dispute. Police received a 9-1-1 call from a minor victim. The victim told [362 Or. 58] the dispatcher that she was hiding in the bathroom from her mother's boyfriend, defendant, who had struck her with a belt and was outside the door fighting with her mother in front of her younger siblings. Police arrived and found the victim "hysterical" in the street outside the house. Defendant claimed that he had attempted to discipline the victim. The victim testified to a grand jury, and defendant was charged with felony fourth-degree assault.

         The state subpoenaed the victim to appear as a witness at trial. The record does not include the subpoena or the return of service, and it does not show the precise date that the subpoena was issued. On the morning of trial, the prosecutor learned that the victim was not going to appear. In lieu of her testimony, the state offered a recording of the 9-1-1 call, arguing that the recording was admissible under the excited-utterance exception to the rule against hearsay.

         The trial court held a hearing on the admissibility of the recording, focusing on defendant's Article I, section 11, right to confront witnesses face-to-face. The prosecutor argued that hearsay testimony is admissible notwithstanding confrontation rights if the declarant is unavailable and the statements are reliable. The prosecutor asserted that there was no dispute as to the reliability of the recording of the victim's 9-1-1 report, and her failure to appear in response to the subpoena established her unavailability. He explained that "the State has subpoenaed [the victim] * * *. [W] e have a return of service on her. We have been trying to call her to have her appear and reach her."

         The trial court asked the prosecutor whether "the mere fact of not showing up for a subpoena" satisfied the state's obligation to show that a witness is ...

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