and submitted May 9, 2017.
review from the Court of Appeals No. (CC 12FE0978; CA
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.
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
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.
Balmer, Chief Justice, and Kistler, Walters, Landau, and
Nakamoto, Justices, and Baldwin, Senior Justice pro tempore.
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
decision of the Court of Appeals is reversed. The judgment of
the circuit court is affirmed.
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."
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
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.
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.
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.
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."
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 ...