State v. Harris , 322 Or. App. 483 ( 2022 )

483
Argued and submitted January 18, reversed and remanded October 26, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
HOWARD LAMAR HARRIS, JR.,
Defendant-Appellant.
Marion County Circuit Court
19CR53125; A173579
520 P3d 897
Defendant appeals from a judgment of conviction for fourth-degree assault
constituting domestic violence. ORS 163.160(3)(d); ORS 132.586. He argues that
the trial court erred by admitting hearsay statements without adequate proof
of unavailability of the declarant in violation of his confrontation rights under
Article I, section 11, of the Oregon Constitution. The state argues that defendant
appeals from an unreviewable ruling and that he failed to preserve his argu-
ment. Held: Defendant preserved his argument and challenged a reviewable rul-
ing, and the admission of the out-of-court statements of the absent complainant
was error.
Reversed and remanded.
Thomas M. Hart, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Pagán, Judge, and
Hadlock, Judge pro tempore.*
MOONEY, P. J.
Reversed and remanded.
______________
* Pagán, J., vice DeHoog, J. pro tempore.
484 State v. Harris
MOONEY, P. J.
Defendant appeals from a judgment of conviction for
fourth-degree assault constituting domestic violence (Count
3) (ORS 163.160(3)(d); ORS 132.586). He assigns error to
the trial court’s decision to admit out-of-court statements of
the nontestifying complainant, H, without adequate proof
of unavailability, in violation of his constitutional right to
“meet the witnesses face to face” under Article I, section 11,
of the Oregon Constitution. The state responds that defen-
dant did not preserve his constitutional confrontation argu-
ment, that any error is not plain, and that even if plain error
occurred, we should not exercise our discretion to correct
it. We conclude that defendant preserved his confrontation
argument, this is a reviewable ruling, the state failed to
adequately establish unavailability, and, thus, admission
of the out-of-court statements violated defendant’s Article I,
section 11, confrontation rights. We reverse and remand.
“Whether an appellate argument is preserved is a
legal issue.” Dept. of Human Services v. M. E., 297 Or App
233, 239, 441 P3d 713 (2019) (citing State v. Fox, 165 Or App
289, 292, 995 P2d 1193 (2000)). We review a witness’s avail-
ability under Article I, section 11, for errors of law. State v.
Belden, 369 Or 1, 12-13, 499 P3d 783 (2021). “[T]o the extent
that [the] application of the legal standard turns on disputed
questions of fact, this court is bound by the trial court’s find-
ings” if they are supported by evidence in the record. Id. at
13 (citing State v. Iseli, 366 Or 151, 159, 458 P3d 653 (2020)).
Deputy Nathaniel Morse received a call from the
hospital about H, a pregnant patient, who had sought care
from the hospital for visible injuries that she attributed to
defendant, her boyfriend. Morse went to the hospital, spoke
with H, and took photographs of her swollen face and bruised
eye. When Morse later went to defendant’s home, defendant
denied seeing H that night.
At the ensuing assault trial, the state offered the
record of H’s hospital encounter as evidence against defen-
dant. That record documented H’s chief complaint of being
“struck in the left side of her face by her ex-boyfriend” as
well as H’s statements that she was in “pain after being
Cite as 322 Or App 483 (2022) 485
physically assaulted by her ex-boyfriend” who struck her
with his “fist.”
H did not appear at defendant’s trial. The state,
thus, moved to dismiss Count 1, strangulation, and Count 2,
one of the two assault charges, because it was unable to
proceed on those counts without H as a material witness.
According to the state, however, the same was not true as to
Count 3, the remaining assault charge, on which it intended
to proceed. At that point, defendant asked the court to dis-
miss all the charges with prejudice because the state “has
had plenty of time to personally serve” H but had not yet
done so. The state responded by detailing its efforts to con-
tact H, noting that, while defendant was in custody, the
state had been able to personally serve H with a subpoena,
but that, upon defendant’s release, H stopped returning
its phone calls. The state attempted to serve H by certified
mail, and it again attempted personal service through its
investigators who went to H’s current and previous known
addresses. The investigators tried to reach H through text
messages and social media but received no response. The
state explained that its attempts had been unsuccessful,
and that it had received information from another witness
that H was afraid of defendant. The state concluded that
H’s fear “play[ed] a role in her absence” and that she was
“actively trying to avoid service.”
The court granted the state’s motion to dismiss
Counts 1 and 2 without prejudice because of the state’s
“active effort” to contact H. As to Count 3, the state repre-
sented that it was ready to proceed without H’s live testimony
because it would rely on the hospital records that described
the injuries and the assault, as well as the testimony of the
responding officer, Morse. Defendant again objected, this
time arguing that proceeding with Count 3 on the basis of
the hospital records and Morse’s testimony, without the abil-
ity to cross-examine H, would violate his right to meet the
witnesses against him face to face. Defense counsel argued:
“[Defendant] has an absolute right to confront the wit-
nesses against him and all of this evidence will be brought
against him that is essentially from the mouth of [H] with-
out her being here for us to cross-examine, for us to get a
486 State v. Harris
full and complete picture from her, and that’s incredibly
prejudicial to my client. It literally makes the prosecution’s
entire case based on hearsay without any opportunity to
cross-examine or even put her under oath, and that is a
significant violation of his constitutional rights and I’d ask
the Court to not allow that to move forward.”
The court framed the issue as whether the out-of-court
statements contained in the hospital records were admis-
sible under an exception to the hearsay rule. Defendant
agreed that the hearsay exception provided by OEC 803(4)
for statements made for the purpose of medical diagnosis
and treatment applied but again emphasized that there
was “no opportunity to cross-examine.” The court did not
expressly rule on defendant’s argument that his inability
to cross-examine H about statements attributed to H in the
hospital records and by Morse violated his right to confront
witnesses. It did, however, mention that counsel could object
“at any particular time with regard to * * * a hearsay excep-
tion or something of that nature[.]”
At the close of the state’s evidence defendant “reas-
sert[ed] the objection [based on his] right of confrontation.”
He reiterated that the state’s case was “entirely based” on
the hearsay allegation of H that existed within the other-
wise admissible hospital record. Defendant “reassert[ed]
the objection to [his] right of confrontation,” and moved
for judgment of acquittal arguing that the state’s case was
wholly reliant on hearsay, that credibility was a key issue
and that “without an alleged victim to cross-examine, this
[would be] a miscarriage of justice.” The court denied the
motion for judgment of acquittal (MJOA). Defendant offered
no evidence or testimony in his own defense, and the trial
concluded with closing arguments.
In his closing argument, defendant again raised
his confrontation argument. He emphasized that, because
the key evidence against him—H’s statements—came in
through the testimony of Morse and the hospital record, he
had not been able to test H’s credibility because she was not
subject to cross-examination. The court ruled as follows:
“Okay. The reason that statements for diagnosis and
medical treatment are exceptions to the hearsay rule is
Cite as 322 Or App 483 (2022) 487
long based on their inherent reliability in that people don’t
lie to their doctors about things that they deal with medi-
cally, because it affects them personally.
“* * * * *
“There are witnesses. We had the witness of the deputy
who saw the demeanor of the defendant in response to all
of this, there are witnesses that have come to light through
the medical report, and there are pictures of real physical
injury that are in the record, and the date and the time is
not in question, and on the evidence before the Court it’s
absolutely proof beyond a reasonable doubt and I’m going
to find [defendant] guilty of the offense of assault in the
fourth degree[.]”
We begin with the questions of reviewability and
preservation. The state argues, first, that “there is no adverse
ruling regarding the hearsay evidence for defendant to
appeal because when defendant first made his confrontation
objection, the trial court deferred ruling until hearsay evi-
dence was offered, and then defendant failed to reraise the
objection when the medical records were offered.” Defendant
raised his confrontation argument pretrial in the context of
the state’s motion to dismiss Counts 1 and 2 and to proceed
on Count 3, again at the close of the state’s case in the con-
text of his MJOA, and finally in closing argument where he
requested acquittal. The court dismissed Counts 1 and 2
without prejudice and permitted the state to proceed to trial
on Count 3, denied defendant’s MJOA, and found him guilty
of assault. While it is true that the court reminded coun-
sel that he could make a hearsay objection as evidence was
being offered during trial, defendant did not have a hearsay
objection to the hospital records. In fact, he agreed that the
medical records fit within the medical diagnosis and treat-
ment exception to the hearsay exclusionary rule. His objec-
tion was instead based on his right to confront the witnesses
against him. The court’s decision to proceed on Count 3, and
to admit the hospital record into evidence, especially given
the relatively extensive discussion of the confrontation issue
between the court and counsel, were rulings that impliedly
denied and overruled defendant’s confrontation argument.
Those rulings were adverse to defendant and are reviewable
by us.
488 State v. Harris
The state next argues that “defendant did not pre-
serve an objection to the admission to the victim’s hear-
say under Article I, section 11, of the Oregon Constitution
because below defendant raised a generic confrontation
objection without citing a specific constitutional authority
or case that would provide the trial court with the relevant
analysis.” But the “touchstone” of preservation is proce-
dural fairness to the parties and the trial court. Peeples v.
Lampert, 345 Or 209, 219, 191 P3d 637 (2008). And “adduc-
ing particular authorities is not a prerequisite to preserva-
tion.” State v. Walker, 350 Or 540, 549, 258 P3d 1228 (2011).
A defendant’s failure to distinguish between state and fed-
eral constitutional arguments is not dispositive of a lack of
preservation. Id. at 550. As the court, in Walker, specifically
explained:
“[A] hard-and-fast rule that a failure to assert a differ-
ence between state and federal constitutional analysis is
an impediment to appellate review is simply incorrect. * * *
The appropriate focus, as our more recent cases make clear,
is whether a party has given opponents and the trial court
enough information to be able to understand the contention
and to fairly respond to it. The necessity of fleshing out a
contention with more developed or detailed analysis will
depend on the circumstances and the nature of the issue
that has been raised.”
Id. at 551-52. The state’s argument that, here, the trial court
never had an opportunity to address the Article I, section
11, confrontation argument is not borne out by the record.
Defendant first objected immediately after the prosecution
revealed its intention to move forward on Count 3 relying on
the medical records for H’s statements about what had hap-
pened. In fact, the court itself described defendant’s objec-
tion as being based on his right to confrontation:
“[DEFENSE COUNSEL]: We do have a waiver of jury,
Your Honor. Would you like to discuss that first or our
objection to moving forward today—
“[THE COURT]: Well, you can object to going on the
third one * * * your—essentially your right to confront the
witnesses.
“[DEFENSE COUNSEL]: Exactly, Your Honor * * *.”
Cite as 322 Or App 483 (2022) 489
In sum, defendant’s confrontation objection imme-
diately followed the state’s explanation of the efforts that it
had made to get H to appear for trial. He repeatedly empha-
sized H’s absence from court and his resulting inability to
cross-examine her. Moreover, defendant acknowledged that
a hearsay exception applied to the hospital records (and he
never hinted that his confrontation objection was based on
any other aspect of the constitutional tests for permissible
admission of out-of-court statements over a confrontation
objection). Given that context, the trial court and the state
had fair notice that defendant’s confrontation objection was
based on H’s absence, that is, that defendant was making
an argument based on his Article I, section 11, confronta-
tion right and the “unavailability” prong of the associated
legal test. That confrontation objection therefore triggered
the state’s “burden * * * to show that it [had] exhausted the
reasonably available measures for producing the witness.”
Belden, 369 Or at 11.
We now turn to the merits. Under Article I, sec-
tion 11, “the accused shall have the right * * * to meet the
witnesses face to face.” An out-of-court statement by a non-
testifying declarant may only be admitted under that pro-
vision when the declarant is unavailable and the statement
has adequate indicia of reliability. State v. Supanchick, 354
Or 737, 753, 323 P3d 231 (2014). Because the hospital records
at issue here fit squarely within a hearsay exception, reliabil-
ity is not disputed, leaving unavailability as the sole issue.
As noted, the state bears the burden to prove the
unavailability of a declarant. Unavailability is proved “if
the proponent of the declarant’s hearsay statements made
a good-faith but ultimately unsuccessful effort to obtain the
declarant’s testimony at trial.” State v. Simmons, 241 Or App
439, 453, 250 P3d 431 (2011). The unavailability exception
to the confrontation guarantee should not be “granted rou-
tinely” and applies only when a witness is “truly unavailable
to testify” so that the state’s reliance on prior out-of-court
statements is “genuinely necessary.” State v. Herrera, 286
Or 349, 355, 594 P2d 823 (1979). The state must “show that
it has exhausted the reasonably available measures for pro-
ducing the witness.” Belden, 369 Or at 11. The record does
490 State v. Harris
not support that conclusion here, and, because the state does
not advance any argument on the merits of unavailability,
we decline to develop such an argument on its behalf. See
R. S. R. v. Dept. of Human Services, 319 Or App 149, 161-62,
510 P3d 209 (2022).
Reversed and remanded.