State v. Apperson ( 1987 )

JOSEPH, C. J.

Defendant appeals his conviction for assault in the fourth degree. He contends that the trial court erred in overruling his objection to the admission of hearsay.¹ We reverse.

Defendant was charged with assault in the fourth degree and harassment. At trial, the victim testified that she could not remember any physical contact between herself and defendant nor specifically what she told a police officer on the night in question. The state then called the officer to testify about statements which the victim had made to him. Defendant objected to the testimony as inadmissible hearsay. The trial court overruled the objection on the basis that the declarant (the victim) was unavailable, as defined in OEC 804(l)(c), and that the statements were admissible as an exception to the hearsay rule under OEC 804(3) (f). The officer then testified that, approximately 30 minutes after the alleged assault had occurred, the victim told him that she and defendant had been arguing, that she had threatened to leave him, that defendant had told her that he loved her and that he then threw her on the floor, slapped her, picked her up and threw her against the wall.² The jury found defendant not guilty of harassment and guilty of assault.

The parties agree that the statements do not qualify for admission under any of the specific exceptions to the hearsay rule. The state seeks to justify admission under OEC 804(3) (f), the residual exception, which provides:

“The following are not excluded by [OEC 802] if the declarant is unavailable as a witness:³ <<* * * * *

“(f) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this paragraph unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that the statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it.”

The legislative intent is that the residual hearsay exception “be used very rarely, and only in situations where application of the hearsay rule and its other exceptions would result in injustice. These rules are not a broad grant of authority to trial judges to admit hearsay statements.” Legislative Commentary to OEC 803(24). (Emphasis supplied.)⁴

The trial court determined that the requirements of (A), (B) and (C) had been met, but made no express determination of the statements’ trustworthiness. Defendant contends that they do not have sufficient circumstantial guarantees of trustworthiness. We agree.

Other testimony established that, immediately after the alleged assault, the victim went to a neighbor’s home to use the telephone. The neighbor testified that the victim was very upset and appeared to have a “pink spot” on her face. Testimony at trial also established that the victim talked with her mother twice between the incident and when she spoke with the officer. She also met with another officer⁵ before she spoke with the officer who testified. The victim testified that she could not remember any physical contact between herself and defendant, that she had been angry because defendant had been with his ex-wife at the ex-wife’s home and that she had intended to enter the ex-wife’s home and start a fight with her.

We conclude that there is nothing in those facts to give the statements a guarantee of trustworthiness equivalent to that accorded the kinds of statements specified in OEC 804(3), because they lack the motivational basis for truth-telling that the specific exceptions in the rule have.⁶ If we were to hold that the circumstances described are sufficient to support a conclusion of trustworthiness, we would effectively abolish the hearsay rule. Moreover, that the victim made her statements to a police officer does not render them significantly more trustworthy than if she had made them to anyone else. See, e.g., Reynoldson v. Jackson, 275 Or 641, 552 P2d 236 (1976).⁷

Reversed and remanded for a new trial.

1 Defendant’s other assignments of error lack merit and therefore require no discussion.

2 We express no opinion about the meaning of love in this context.

3 Defendant does not challenge the trial court’s finding that the victim was unavailable as a witness. See OEC 804(l)(c).

4 The legislative commentary to OEC 803(24) applies to OEC 804(3) (f). Legislative Commentary to OEC 804(3) (f).

5 That officer testified that he saw a bruise and a scratch on the victim’s face. That, of course, was not hearsay. He did not testify that the victim said anything to him about defendant.

6 The specific exceptions are: former testimony, statements made under belief of impending death, statements against pecuniary or proprietary interest, statements concerning family history and statements made in a professional capacity. OEC 804(3).

7 The dissenter needs to reread State v. Campbell, 299 Or 633, 705 P2d 694 (1985). The general exceptions in OEC 803 and OEC 804 cannot serve to avoid the strictures of the specific exceptions themselves. The dissent also totally ignores the fact that the statements in issue are wholly unlike any of the specific exceptions in the rule. Finally, one must wonder what this court’s duty is if it does not encompass “mandating how the trial judge had to rule on the admissibility of this evidence.” 85 Or App at 435.