State v. Brown

283

Argued and submitted June 2, reversed and remanded July 14, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

CALVIN LEE BROWN,

Defendant-Appellant.

Klamath County Circuit Court

18CR20571; A173249

496 P3d 701

Defendant appeals a judgment revoking his probation on two counts of first-

degree burglary and imposing a sentence of 90 months’ imprisonment. On appeal,

defendant argues that the trial court erred in admitting hearsay testimony from

his probation officer in light of his right to confront witnesses under the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.

The state responds that defendant failed to preserve that claim of error.

Held: Defendant preserved his claim of error. Although he did not use the words

“due process” or specifically and clearly invoke the right case names, he did

enough to alert the trial court to the substance of his objection. On the merits, in

light of the importance of defendant’s interest in confrontation and the absence

of good cause for denying it, the admission of the hearsay evidence violated defen-

dant’s due process right to confront an adverse witness, and the trial court erred

in admitting that evidence.

Reversed and remanded.

Andrea M. Janney, Judge.

Neil F. Byl, 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.

Rolf C. Moan, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

LAGESEN, P. J.

Reversed and remanded.

284 State v. Brown

LAGESEN, P. J.

Defendant appeals a judgment revoking his pro-

bation on two counts of first-degree burglary and impos-

ing a sentence of 90 months’ imprisonment. The trial court

entered that judgment after finding that defendant vio-

lated the terms of probation by changing his address with-

out prior approval from his probation officer. The state’s

evidence of the violation consisted largely of testimony by

defendant’s probation officer, Colahan, about documentation

and other information that Colahan had received from other

probation officers about their inability to locate defendant’s

purported address and where defendant had been contacted

by a sheriff’s deputy. On appeal, defendant argues that the

court erred in admitting that hearsay testimony in light

of his right to confront witnesses under the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution. See State v. Wibbens, 238 Or App 737, 741, 243

P3d 790 (2010) (explaining that whether “admission of hear-

say evidence at a probation revocation proceeding violates a

probationer’s right to confrontation” involves weighing “the

probationer’s interest in confrontation against the govern-

ment’s good cause for denying it”); id. at 741-42 (“The rele-

vant factors in that analysis include ‘(1) the importance of the

evidence to the court’s finding; (2) the probationer’s opportu-

nity to refute the evidence; (3) the difficulty and expense of

obtaining witnesses; and (4) traditional indicia of reliability

borne by the evidence.’ ” (Quoting State v. Johnson, 221 Or

App 394, 401, 190 P3d 455, rev den, 345 Or 418 (2008).)).

This case turns on the issue of preservation. The

state does not contend that, under the due-process balanc-

ing required by Wibbens and Johnson, the court properly

denied defendant the right to confrontation. Rather, the

state argues that defendant did not adequately preserve his

contention for appeal, because his objections were phrased in

terms of the “confrontation clause” rather than due process.1

The preservation question is a close call. As the

state points out, the analysis for confrontation under the

Due Process Clause is distinct from what is required of a

1

The state also advances a harmless error contention that we reject without

discussion.

Cite as 313 Or App 283 (2021) 285

trial court under the tests ordinarily invoked by a shorthand

reference to a “confrontation clause”—i.e., the tests under

the Sixth Amendment to the United States Constitution

or Article I, section 11, of the Oregon Constitution. And, if

“confrontation clause” had been the sum of defendant’s

objection, we would agree with the state that defendant had

not preserved his claim of error. But, here, there was more.

In addition to repeatedly invoking his right to “con-

frontation” and the “confrontation clause,” defendant also

informed the court that he discovered a 2010 case “saying

that anybody who accuses [the probationer] of anything

he gets to confront and it’s a violation of the confrontation

clause in a revocation hearing,” and that “[w]e’ve heard that

he shoplifted and we heard that he moved; nobody in here

can confirm that today.”2

The trial court did not further inquire about the case

that defendant had cited. Instead, the court stated that it

“would not require this particular PO to drive to Portland,

go to that, take pictures, sit there, and confirm whether or

not what he has been told by another trained professional

that lives in Portland that that address does not exist to

confirm that that address does not exist. He’s relying on

that information, that is his job.”

In response, defendant pointed out that the other probation

officers could easily be produced by the state as witnesses,

given the stakes of the proceeding for defendant:

“The idea that PO Colahan couldn’t go up to Portland to

take pictures and bring stuff down makes complete sense

but the idea that somebody could call in from Portland is

really easy, we do it all the time. Sending him up on essen-

tially hearsay is a pretty, it seems like a pretty serious—if

you’re sending somebody to prison for 90 months you need to

have a very solid foundation.”3

(Emphases added.)

2

The transcript refers to “State v. Livens” rather than “Wibbens.”

3

We acknowledge, as the state points out, that defendant did not carefully

delineate between exclusion of the hearsay testimony and the court’s error in

relying on that hearsay testimony to revoke his probation. Given the way in

which the arguments developed, we are not persuaded that defendant’s failure to

draw a distinction in that regard would have affected the trial court’s decision on

the question of confrontation.

286 State v. Brown

It is true that defendant did not use the words “due

process” or specifically and clearly invoke the right case

names, but we are persuaded that he did enough to alert the

trial court to the substance of his objection. Preservation

rules are “pragmatic as well as prudential,” and they are

intended to promote the administration of justice, not sub-

vert it. Peeples v. Lampert, 345 Or 209, 220, 191 P3d 637

(2008). Defendant objected to the hearsay evidence, raised

the issue of confrontation, made an effort to cite a case

involving confrontation in the specific context of probation

revocation, and identified specific factors relevant to due

process considerations: lack of reliability of the hearsay, that

the witnesses were easily produced by telephone, the sig-

nificance of the evidence to the state’s case, and the stakes

for defendant in terms of a 90-month imprisonment. We

are persuaded that the prudential and pragmatic concerns

underlying the preservation doctrine have been satisfied.

On the merits, we agree with defendant that the

case is controlled by our decision in Wibbens, 238 Or App at

741, and the state does not contend otherwise on appeal. The

hearsay evidence was central to the state’s case, defendant

requested confrontation, and the state never demonstrated

a basis to deny it on the facts of this case. We note, in par-

ticular, that there is no basis to conclude on this record that

the witness could not have appeared by telephone, as defen-

dant suggested. Thus, as we held in Wibbens:

“In light of the importance of defendant’s interest in

confrontation, and the absence of good cause for denying

it, the balance weighs in favor of confrontation. Based

on the Johnson factors, the admission of the hearsay evi-

dence violated defendant’s due process right to confront

an adverse witness, and the trial court erred in admitting

that evidence.”

238 Or App at 744. We therefore reverse and remand for

further proceedings.

Reversed and remanded.