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State v. Ambriz-Arguello

Court of Appeals of Oregon

November 28, 2018

STATE OF OREGON, Plaintiff-Appellant,
v.
MAURICIO AMBRIZ-ARGUELLO, Defendant-Respondent.

          Argued and submitted September 28, 2018

          Washington County Circuit Court C122756CR D. Charles Bailey, Jr., Judge.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General.

          Neil F. Byl, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Landau, Senior Judge.

         Case Summary: The state appeals in this criminal case following the Court of Appeals' decision in State v. Ambriz-Arguello, 285 Or.App. 583, 397 P.3d 547, rev den, 362 Or. 39 (2017) (Ambriz-Arguello I). In Ambriz-Arguello I, the Court of Appeals concluded that the trial court erred when it admitted an audio-video recording and transcript containing an interpreter's out-of-court English translations of defendant's statements in Spanish because those translations were hearsay and inadmissible under the exceptions to the rule against hearsay proffered by the state. Id. at 587-88. The state contends that the trial court erred when it concluded that the Court of Appeals' reversal of defendant's judgment of conviction and remand to the trial court required a new trial. Specifically, the state argues that the trial court should have permitted the state on remand to offer two alternative bases to admit the interpreter's translation in order to avoid a new trial. Held: The trial court did not err when it ordered a new trial because the state's argument that the translations were admissible as nonhear-say admissions of a party opponent was resolved adversely against the state in [295 Or.App. 107] Ambriz-Arguello I. Furthermore, the trial court did not err when it declined to consider whether the evidence was admissible under the residual hearsay exception because the state expressly disavowed that as an alternative basis for affirmance in Ambriz-Arguello I, and nothing in the Court of Appeals' opinion or remand order indicated that the trial court was required to revisit that issue on remand.

         [295 Or.App. 108] SHORR, J.

         The state appeals from an order granting defendant a new trial following our decision in State v. Ambriz-Arguello, 285 Or.App. 583, 397 P.3d 547, rev den, 362 Or. 39 (2017) (Ambriz-Arguello I).[1] In Ambriz-Arguello I, we concluded that the trial court erred when it admitted an audio-video recording and transcript containing an interpreter's out-of-court English translations of defendant's statements in Spanish because those translations were hearsay and inadmissible under the exceptions to the rule against hearsay proffered by the state. Id. at 587-88. The state now contends that the trial court erred when it concluded that our reversal of defendant's judgment of conviction and remand to the trial court required a new trial. The state argues that the trial court should have permitted the state on remand to offer alternative bases to admit the interpreter's translation in order to avoid a new trial. We conclude that the trial court did not err when it granted a new trial, because the state's argument that the translations were admissible as nonhear-say admissions of a party opponent was resolved adversely to the state in Ambriz-Arguello I. Furthermore, the trial court did not err when it declined to consider whether the evidence was admissible under the residual hearsay exception, because the state expressly disavowed that as an alternative basis for affirmance in Ambriz-Arguello I. Accordingly, we affirm.

         The following facts are mostly procedural and undisputed for the purpose of this appeal. After defendant was arrested on a charge of sexually abusing his stepdaughter, A, defendant participated in a recorded interview with a detective at a police station. In that interview, defendant admitted to the detective that he had sexually abused A, but defendant spoke in Spanish, and a police interpreter translated his statements to the detective to English.

         The state sought to admit defendant's translated statements at trial through an audio-video recording and transcript of the interview. Defendant raised a hearsay objection to the admissibility of all of the out-of-court translations [295 Or.App. 109] of defendant's statements by the police interpreter, arguing that the interpreter's statements added a layer of hearsay that must qualify under an exception to the rule against hearsay[2] The state contended that defendant's statements were not hearsay because they were made by a party opponent and, because the interpreter was "merely * * * translating from one language into the other," the interpreter's translation was "not a separate statement" that added a layer of hearsay[3] The state argued in the alternative that the interpreter's translations would be admissible under the residual exception to the rule against hearsay[4] In response, defendant argued that the residual hearsay exception could not be raised on the eve of trial, because the state had failed to comply with the residual exception's notice requirement. The trial court stated, "I think if we dealt with the * * * notice issue, * * * we could get it in * * * under the residual" exception. However, instead of resolving the notice issue, the trial court concluded that the interpreter's out-of-court translations of defendant's statements did not make the [295 Or.App. 110] interpreter an additional declarant and, therefore, defendant's statements were not hearsay because defendant was a party opponent. The trial court admitted the audio-video recording and transcript of defendant's interview with the detective, and the jury found defendant guilty of multiple crimes.

         Defendant appealed, arguing "that the trial court erred in admitting the audio-video recording and transcript containing the interpreter's English translations of defendant's statements * * * because those translations amounted to inadmissible hearsay." Ambriz-Arguello I, 285 Or.App. at 587. The state did "not defend the trial court's ruling that the interpreter's translations were admissible under OEC 801(4)(b)(A), which provides that a party's own statement offered against that party is not hearsay," and we concluded that the trial court erred in ruling that "the interpreter's English translations of defendant's statements in Spanish *** were admissible because defendant-not the interpreter-remained the declarant." Id. at 587-88 (citing State v. Montoya-Franco, 250 Or.App. 665, 669, 282 P.3d 939, rev den, 352 Or. 666 (2012) (an "out-of-court translation of a non-English speaker's statements to a third party constitutes hearsay because the interpreter's translation constitutes an assertion of the English meaning of the original statement")).

         Additionally, in the state's answering brief, the state expressly declared that it was "not relying upon the residual hearsay exception rule for the basis of the trial court's ruling." Rather, the state argued for the first time that the interpreter's English translations were admissible under "OEC 801(4)(b)(C) and (D), which provide that a statement is not hearsay if the statement is offered against a party and is made by 'the party's agent,' or if the statement is made 'by a person authorized by the party to make a statement concerning the subject.'" Id. at 588. We concluded that the state's newly raised theories of admissibility did not qualify as alternative bases to affirm the trial court's ruling "because the state did not argue either of those theories below." Id. (citing Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001) (appellate courts may not rely on an alternate ground for upholding a [295 Or.App. 111] trial court's ruling when the record either is not adequate or would have been developed differently if the alternate ground had been raised at trial)). We further concluded that the erroneous admission of the interpreter's out-of-court English translations was not harmless and we reversed the judgment of conviction and remanded the case to the trial court. Id. at 589-90.

         On remand, the state argued to the trial court "that the issue that caused the remand is something that can be settled with a hearing, rather than with a [new] trial." Specifically, the state contended that a new trial was not necessary if the trial court concluded that "the residual hearsay exception applies" to the interpreter's out-of-court translations of defendant's statements or that "the statements at issue are admissions of a party-opponent offered by the state against the defendant via testimony of an interpreter pursuant to OEC 801(4)(b)(A) (as originally argued by the state before the trial court in 2013)." First, defendant responded that we "definitely said that this hearsay coming in for the party opponent as not hearsay was error." Second, defendant argued that "the notice for the residual hearsay exception is inadequate" and, if the state had given the proper notice by raising the residual exception in a timely manner, defendant would have had the opportunity to prepare additional arguments and "the record would have developed differently." The state, for its part, acknowledged that it "should have provided a better notice sooner" and that it should have raised the residual exception "in front of the Court of Appeals so that they could [resolve the] issue on its merits, rather than [creating] the procedural problem that occurred at the Court of Appeals level." Defendant stated that "appellate taglines must be read in the context of the opinion as a whole," and because "there is no clear indication that the court was reversing Ambriz-Arguello for a partial remand, the 'reversed' part of the tagline negates the appealed judgment and the remanded part sends the case back to the lower tribunal as though the original proceeding did not occur."

         After hearing the parties' arguments and reviewing the case law, the trial court noted at a hearing that "all [the Court of Appeals] said was reverse and remand" and [295 Or.App. 112] "didn't give any indication to the court [in Ambriz-Arguello I] that the court could entertain what the state was ultimately asking the court to entertain * * * and, therefore, the court finds ...


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