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State v. Townsend

Court of Appeals of Oregon

March 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD DEREK TOWNSEND, Defendant-Appellant.

          Submitted January 23, 2018

          Multnomah County Circuit Court 051154529 Henry Kantor, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for possession of a Schedule I controlled substance. On appeal, he challenges the trial court's ruling permitting an officer, who had no memory of his encounter with defendant, to testify from portions of his written report over the objection of defense counsel, asserting that the portions of the written report read at trial were inadmissible hearsay under OEC 803(8) and that their admission violated defendant's right to confrontation under both the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 11, of the Oregon Constitution. In response, the state argues that defendant's argument is foreclosed by the Court of Appeals' decision in State v. Scally, 92 Or.App. 149, 152, 758 P.2d 365 (1988).

         Held:

         Defendant's OEC 803(8) and state constitutional arguments are disposed of by Scally. However, Scally's federal confrontation clause analysis relied on the framework set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) and that analytical approach to federal confrontation rights was fundamentally altered in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Consequently, Scally does not answer the question whether the federal confrontation clause-as applied under Crawford-prohibited the officer [290 Or. 920] from reading from his report in this case. The Court of Appeals concluded that, on this record, the federal confrontation clause was satisfied.

         Affirmed.

         [290 Or. 921] JAMES, J.

         Defendant appeals a judgment of conviction for possession of a Schedule I controlled substance. On appeal, he challenges the trial court's ruling permitting an officer, who had no memory of his encounter with defendant, to testify from portions of his written report over the objection of defense counsel, asserting that the portions of the written report read at trial were inadmissible hearsay under OEC 803(8) and that their admission violated defendant's right to confrontation under both the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 11, of the Oregon Constitution. In response, the state argues that defendant's argument is foreclosed by our decision in State v. Scally, 92 Or.App. 149, 758 P.2d 365 (1988). We agree with the state that defendant's OEC 803(8) and state constitutional arguments are disposed of by Scally, and we decline defendant's invitation to revisit those aspects of Scally. We write, however, because Scally's federal Confrontation Clause analysis relied on the framework set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). That analytical approach to federal confrontation rights was fundamentally altered in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Consequently, Scally does not answer the question whether the federal Confrontation Clause-as applied under Crawford-prohibited the officer from reading from his report in this case. We conclude that, on this record, the federal Confrontation Clause was satisfied. Accordingly, we affirm.

         The facts are not disputed by the parties. The police encountered defendant during a traffic stop in 2005 and arrested him on an outstanding warrant. Upon booking at the station, the police found narcotics on defendant. Defendant was charged with misdemeanor possession of a controlled substance. However, defendant failed to appear multiple times, absconding for a period totaling approximately 11 years. By the time of trial in 2016, the arresting officers remembered the traffic stop of defendant that resulted in his arrest on an outstanding warrant, but they had little to no independent recollection of the interactions [290 Or. 922] at the police station resulting in the discovery of the controlled substance. However, the officers had made written recordings of their knowledge at the time, in the form of their police reports.

         Prior to trial, defendant moved to exclude evidence contained in the police reports. The trial court denied the objection and permitted the officers to read from their reports. Defendant was ultimately convicted and now challenges the trial court's evidentiary ruling on appeal. We review a constitutional confrontation challenge to the admission of evidence for errors of ...


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