State v. Harris

No. 55 October 19, 2017 55

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

KENNETH JAMES HARRIS,

aka Kenneth James Harris-Maynard,

aka Kenneth James Maynard,

Respondent on Review.

(CC 12FE0978; CA A154977; SC S064377)

On review from the Court of Appeals.*

Argued and submitted May 9, 2017.

Gregory A. Rios, Assistant Attorney General, Salem,

argued the cause for petitioner on review. Jennifer S. Lloyd,

Assistant Attorney General, filed the brief, joined by Gregory

A. Rios. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

John Evans, Deputy Public Defender, Salem, argued the

cause and filed the brief for respondent on review. Also on

the brief was Ernest G. Lannet, Chief Defender, Office of

Public Defense Services.

Margaret Garvin, Portland, filed the brief for amicus

curiae National Crime Victim Law Institute at Lewis &

Clark Law School. Also on the brief was Rebecca S.T. Khalil.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, and Nakamoto, Justices, and Baldwin, Senior

Justice pro tempore.**

LANDAU, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

** On appeal from Deschutes County Circuit Court, Alta J. Brady, Judge.

279 Or App 446, 379 P3d 539 (2016).

**  Brewer, J., retired June 30, 2017, and did not participate in the decision

of this case. Flynn and Duncan, JJ., did not participate in the consideration or

decision of this case.

56 State v. Harris

Case Summary: In a criminal case, the trial court admitted hearsay evi-

dence over the defendant’s objection that the state had failed to establish that

its witness was unavailable and so the evidence was barred by his constitutional

confrontation right. Held: (1) when the state seeks to admit hearsay evidence

over a confrontation objection, it must affirmatively establish that the witness is

unavailable, meaning that the state has exhausted reasonable means of obtain-

ing the witness; (2) serving a subpoena on a witness, without more, does not gen-

erally constitute exhaustion of reasonable means; and (3) because defendant had

objected to a continuance to allow the state to pursue further means of obtaining

the witness, he could not now complain that the court erred in finding that the

witness was unavailable.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

Cite as 362 Or 55 (2017) 57

LANDAU, J.

Article I, section 11, of the Oregon Constitution pro-

vides a criminal defendant the right “to meet the witnesses

face to face.” That right of confrontation is not absolute,

though. If the state shows that a witness is “unavailable,” it

may offer reliable hearsay evidence without presenting a live

witness at trial. The issue in this case is what is required to

establish that a witness is “unavailable.”

In this case, the state issued a subpoena for a wit-

ness against defendant, and the witness did not appear for

trial. The state then offered hearsay evidence in lieu of live

testimony, arguing that the witness’s failure to appear in

response to the subpoena sufficed to establish her unavail-

ability. Defendant argued that a witness is unavailable for

confrontation purposes only when the state has exhausted

all reasonable means of securing the appearance of the wit-

ness. Once the state became aware that its witness would

not appear, he argued, it could have taken any number of

additional actions to secure her appearance, but did not do

so. The trial court offered to continue the trial to allow the

state to take such additional steps, but defendant objected.

The trial court then concluded that the state had made rea-

sonable efforts to produce the witness and admitted the

hearsay.

The Court of Appeals reversed, holding that “more

could have been done” to produce the witness at trial. State

v. Harris, 279 Or App 446, 457, 379 P3d 539 (2016). We

conclude that, to establish unavailability for Article I, sec-

tion 11, purposes, the state must show that it is unable to

produce a witness after exhausting reasonable means of

doing so. In most cases, the state will not be allowed sim-

ply to rely on a subpoena. In this case, however, defendant

objected to a continuance that would have enabled the state

to pursue other means of securing its witness. Under the

circumstances, defendant cannot be heard now to complain

that the state did not exhaust those measures. We therefore

reverse the decision of the Court of Appeals and affirm the

judgment of the circuit court.

The relevant facts are not in dispute. Police

received a 9-1-1 call from a minor victim. The victim told

58 State v. Harris

the dispatcher that she was hiding in the bathroom from

her mother’s boyfriend, defendant, who had struck her with

a belt and was outside the door fighting with her mother in

front of her younger siblings. Police arrived and found the

victim “hysterical” in the street outside the house. Defendant

claimed that he had attempted to discipline the victim. The

victim testified to a grand jury, and defendant was charged

with felony fourth-degree assault.

The state subpoenaed the victim to appear as a wit-

ness at trial. The record does not include the subpoena or

the return of service, and it does not show the precise date

that the subpoena was issued. On the morning of trial, the

prosecutor learned that the victim was not going to appear.

In lieu of her testimony, the state offered a recording of the

9-1-1 call, arguing that the recording was admissible under

the excited-utterance exception to the rule against hearsay.

The trial court held a hearing on the admissibility

of the recording, focusing on defendant’s Article I, section

11, right to confront witnesses face-to-face. The prosecutor

argued that hearsay testimony is admissible notwithstand-

ing confrontation rights if the declarant is unavailable and

the statements are reliable. The prosecutor asserted that

there was no dispute as to the reliability of the recording

of the victim’s 9-1-1 report, and her failure to appear in

response to the subpoena established her unavailability. He

explained that “the State has subpoenaed [the victim] * * *.

[W]e have a return of service on her. We have been trying to

call her to have her appear and reach her.”

The trial court asked the prosecutor whether “the

mere fact of not showing up for a subpoena” satisfied the

state’s obligation to show that a witness is unavailable. The

prosecutor responded:

“I know we have to make that showing * * *. And I

think when the State subpoenaed a witness, that we have

attempted to call her, we can’t reach her. I spoke to her

mother this morning in order to confirm whether she was

coming or not.

“* * * I think where the line comes in is where there is no

effort made, we are just going to not bother to try to get the

witness here that that becomes an issue. But that was not

Cite as 362 Or 55 (2017) 59

the state’s intent. * * * [I]t would have been easier to have a

witness here. We wouldn’t have to be having this argument

about what comes in and what doesn’t if she were here. And

we made the efforts to get her here. We did serve her. * * *

[S]he is refusing to appear.”

Defendant did not dispute the reliability of the 9-1-1

recording, but did contest that the state established that the

witness was unavailable. According to defendant, “the effort

has been minimal at this point, basically no effort finding

out that she doesn’t want to come in.” Defendant argued that

the state could ask the court to order her to appear as a

material witness. Apart from that, he argued, “the Sheriff

or police officers could be sent out to have her available.”

The court noted that it understood why the state

might be hesitant to take those actions in a domestic vio-

lence case and proposed the following solution:

“[W]e could set this to begin tomorrow * * * and allow

the state to do whatever further—make whatever further

efforts it wishes to make at this time whether through offi-

cers that are on the case or otherwise. And then we could

take it up tomorrow morning.

“It feels to me like there is a little bit more—and I am

not * * * formally ruling on that, but it seems to me that

there might be a little more that could be done to ensure

that [defendant’s] Constitutional rights are protected that

won’t interfere with the operation of this—completion of

this trial under the circumstances. So I would give the

state that opportunity to do so.”

The prosecutor agreed to that plan. But defendant objected

to allowing the state further time to secure the witness’s

presence, arguing that the court had to decide whether

the state had satisfied the legal standard for unavailabil-

ity based on the state’s pretrial efforts to secure her atten-

dance. Given defendant’s objection to the continuance, the

court instead ruled that,

“based upon the information that the State had prior to

today’s date, the fact that they had a return of service that

[the witness] had been served with a subpoena, without

specific reason to know that she would not comply with that

such that they need to take additional steps beforehand,

the guidance * * * available from the Court of Appeals on

60 State v. Harris

this issue is that the State has made a reasonable effort to

procure her attendance. She has not attended and so is not

available.”

The court further ruled that the statements were reliable as

excited utterances and admitted the 9-1-1 recording.1 The

court found defendant guilty of the lesser-included offense of

attempted misdemeanor fourth-degree assault.

Defendant appealed to the Court of Appeals, assign-

ing error to the trial court’s decision to admit the 9-1-1

recording. He argued that the court incorrectly determined

that the state had made an adequate effort to secure the

witness to establish her unavailability for Article I, section

11, purposes. The state reprised its argument that service

of a subpoena alone was a sufficient effort to secure witness

testimony.

The Court of Appeals agreed with defendant. The

court explained that “the test for unavailability is, ulti-

mately, one of necessity,” and the state failed to satisfy that

test. Harris, 279 Or App at 454 (emphasis in original). In

the view of the Court of Appeals, the state’s effort to locate

the witness was minimal:

“[T]he state did not attempt to locate [the witness] through

her mother, who was present at the courthouse, or through

other relatives or law enforcement; it did not send or even

propose to send law enforcement to get her; nor did the

state invoke the court’s contempt power or seek a material

witness order to ensure [the victim’s] attendance once she

failed to show up on the morning of trial; and, although the

prosecutor was perhaps amenable to a continuance to make

further efforts to procure [the witness’s] testimony, he did

not request a continuance for that purpose.”

Id. at 456-57. The court noted that the state had agreed to

a continuance to pursue other means of producing the wit-

ness, but concluded that that was of no significance because

the state had not moved for a continuance. Id. at 457 n 4.

1

OEC 803(2) states an exception to the rule against the admission of hear-

say evidence that applies to “[a] statement relating to a startling event or condi-

tion made while the declarant was under the stress of excitement caused by the

event or condition.” See generally State v. Longo, 341 Or 580, 601-02, 148 P3d 892

(2006) (applying rule).

Cite as 362 Or 55 (2017) 61

Because the court determined that the state had failed

to make a reasonable good-faith effort to secure the wit-

ness’s presence at trial, the Court of Appeals reversed and

remanded.

Before this court, the state argues that the Court

of Appeals erred in requiring more than a showing that it

served a witness with an enforceable subpoena to establish

the witness’s unavailability. In the state’s view, the court

placed too much emphasis on references in this court’s prec-

edents to a requirement that the proponent of the admis-

sion of hearsay over confrontation objections must prove the

“necessity” of relying on hearsay. According to the state,

Article I, section 11, requires only that the state demon-

strate “reasonable, good-faith efforts to obtain in-person

trial testimony from a hearsay declarant” and that it sat-

isfies that obligation “when it shows that it has served her

with a valid subpoena requiring her to appear at trial, but

she nonetheless fails to appear.”

Defendant responds that the state satisfies its obli-

gation to establish the unavailability of a witness only when

it shows that it has “exhaust[ed] every reasonable means

of securing the witness’s appearance.” In this case, defen-

dant argues, “[t]he state had reasonable and readily avail-

able methods for securing [the witness’s] attendance that it

never tried.” Among other things, defendant suggests that

the state “could have sent someone to her house to persuade

her to attend and to offer her a ride to the courthouse.”

Defendant adds that the prosecutor also could have “asked

the court to set over the trial so that remedial-contempt pro-

ceedings could be initiated.”

Under Article I, section 11, of the Oregon

Constitution, a defendant has the right “to meet the wit-

nesses face to face” in all criminal prosecutions. The con-

stitution states the right in absolute, unqualified terms. Yet

this court has never interpreted it literally. To the contrary,

the court has concluded that Article I, section 11, must be

construed in light of certain well-established exceptions that

existed at common law. State v. Copeland, 353 Or 816, 822,

306 P3d 610 (2013). Among those well-established exceptions

is one that permits the use of prior out-of-court statements

62 State v. Harris

that are “necessary” because of the “unavailability” of the

declarant. In State ex rel. Gladden v. Lonergan, 201 Or 163,

269 P2d 491 (1954), for example, the court held that the con-

frontation guarantee of Article I, section 11, did not fore-

close the admission of depositions and former testimony if

the declarant was unavailable. The court did not precisely

define what must be shown to establish the unavailability of

a witness. It did, however, emphasize that the issue is con-

trolled by “the simple principle of necessity—i.e., the absence

of any other means of utilizing the witness’ knowledge.” Id.

at 182 (quoting 5 John Henry Wigmore, A Treatise on the

Anglo-American System of Evidence § 1402 (3d ed 1940)

(emphasis in original)).2 Thus, at least under Lonergan, it

was not enough for the state to show that it had attempted

unsuccessfully to produce a witness by a reasonable means.

Rather, the court required that the court exhaust all rea-

sonable means.

In State v. Herrera, 286 Or 349, 594 P2d 823 (1979),

the court reaffirmed the validity of an unavailability excep-

tion to the confrontation guarantee. But it cautioned that

the exception applies only “when a witness is truly unavail-

able to testify at trial.” Id. at 355. Because of the defendant’s

“strong interest” in being able to confront witnesses, the

court said, “this exception cannot be granted routinely.” Id.

Before the state can rely on prior out-of-court statements,

it must demonstrate why the use of such evidence is “genu-

inely necessary.” Id.

The manner in which the court applied those prin-

ciples in Herrera illustrates the demanding nature of the

showing required of the proponent of the out-of-court state-

ments. In Herrera, the state argued that its witness was

unavailable because he had invoked the privilege against

self-incrimination. Id. at 355-56. The court concluded that

the simple fact that the witness had invoked the privilege

2

The section of Wigmore that the court cited went on to say that the rule at

common law required unavailability “by any means whatever,” but noted that it

was not clear whether, in practice, all courts consistently followed that rule. Id.

Wigmore cited, among other things, Simon Greenleaf’s nineteenth-century trea-

tise on evidence for the proposition that, to prove unavailability, the proponent of

hearsay evidence must show that it had “irrecoverably lost the power of produc-

ing the witness.” Id. (quoting Simon Greenleaf, A Treatise on the Law of Evidence

§ 168 (1842)).

Cite as 362 Or 55 (2017) 63

was insufficient to show that he was unavailable. The court

noted that the witness had invoked the privilege because

he had been promised immunity and that, under those cir-

cumstances, the state had available to it statutory means of

nevertheless compelling the witness’s testimony. Id. at 357.

To establish unavailability for confrontation purposes, the

court explained, “at the minimum the state must show * * *

why it does not wish to avail itself of statutes which can

compel his testimony at the trial.” Id. at 356. In other words,

to establish unavailability, the state was required to explain

why it had not followed reasonable means of compelling the

testimony.

The court in Herrera cited as authority for its con-

stitutional analysis the United States Supreme Court’s deci-

sion in Barber v. Page, 390 US 719, 88 S Ct 1318, 20 L Ed

2d 255 (1968), which construed the parallel confrontation

guarantee of the Sixth Amendment to the United States

Constitution.3 In that case, the state sought to introduce a

transcript of a preliminary hearing in lieu of the live tes-

timony of a witness who was then incarcerated in another

state. The state argued that the transcript was admissi-

ble because the witness was outside the jurisdiction. The

Supreme Court rejected the argument, explaining that the

confrontation guarantee allowed such out-of-court testi-

mony in cases of “necessity.” Id. at 722. Because the state

had not explained why it had not pursued existing statutory

means of obtaining the witness in spite of his location, the

Court said, the state had not demonstrated the necessity of

admitting the hearsay. Id. at 722-24.

This court again relied on federal precedents to

interpret and apply the confrontation guarantee of Article I,

section 11, in State v. Campbell, 299 Or 633, 651, 705 P2d

694 (1985). At issue was the admissibility of the hearsay

testimony of a mother as to her child’s statements. The

state argued that the testimony was admissible because

the child, then three years of age, was not competent to

testify. Addressing the question whether admission of that

hearsay evidence violated the defendant’s Article I, section

3

The Sixth Amendment guarantees a criminal defendant the right “to be

confronted with the witnesses against him.”

64 State v. Harris

11, confrontation rights, this court expressly adopted the

reasoning of the United States Supreme Court in Ohio v.

Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980),

overruled by Crawford v. Washington, 541 US 36, 43-50, 124

S Ct 1354, 158 L Ed 2d 177 (2004).

In Roberts, the Supreme Court had articulated a

two-part test for the admissibility of hearsay testimony over

confrontation-rights objections: First, the declarant must

be unavailable. Second, if the declarant is unavailable, the

declarant’s out-of-court’s statements must have “adequate

indicia of reliability.” Roberts, 448 US at 66. Quoting its ear-

lier opinion in Barber, the Court explained that a witness

is not unavailable, for confrontation purposes, “unless the

prosecutorial authorities have made a good-faith effort to

obtain his presence at trial.” Roberts, 448 US at 74. The

Court commented that, although “[t]he law does not require

the doing of a futile act,” the prosecutor must exhaust rea-

sonable measures for obtaining the witness: “[I]f there

is a possibility, albeit remote, that affirmative measures

might produce the declarant, the obligation of good faith

may demand their effectuation.” Id. (emphasis in original).

Ultimately, the Court said, the extent of the prosecutor’s

obligation to procure the witness is a question of reason-

ableness. Id.

Applying those principles in Campbell, this court

concluded that the state had failed to make a record estab-

lishing the incompetency of the child victim to testify.

Accordingly, it reversed and remanded for the trial court to

make that determination. 299 Or at 652.

To be sure, in later cases, the Supreme Court

first qualified and then overruled its decision in Roberts.

See United States v. Inadi, 475 US 387, 392-94, 106 S Ct

1121, 89 L Ed 2d 390 (1986) (unavailability not required to

admit hearsay testimony of coconspirator); White v. Illinois,

502 US 346, 353-56, 112 S Ct 736, 116 L Ed 2d 848 (1992)

(unavailability not required to admit spontaneous decla-

rations); Crawford, 541 US at 43-65 (overruling Roberts).

Nevertheless, this court continues to adhere to the Roberts

analysis in interpreting and applying the confrontation

guarantee of Article I, section 11.

Cite as 362 Or 55 (2017) 65

Of particular significance for our purposes is this

court’s opinion in State v. Moore, 334 Or 328, 49 P3d 785

(2002). In that case, the state argued that, in light of the

federal case law after Roberts, this court should reconsider

its adherence to Roberts. This court declined to do so. After

considering the text of Article I, section 11, the provision’s

historical purposes, and the prior case law construing it,

the court decided to maintain the Roberts requirements

of unavailability and reliability. Moore, 334 Or at 339-40.

Citing Lonergan, the court emphasized that its prior cases

adhered to a demanding requirement of unavailability: “only

when confrontation, in the classic sense was impossible,” the

court observed, was hearsay admitted over confrontation

objections. Id. at 339 (emphasis in original). That case law,

the court said, “continued to focus on necessity as the justi-

fication for admitting hearsay against a criminal defendant,

once confrontation became impossible.” Id.

This court has reaffirmed Campbell and Moore in a

number of subsequent decisions. In State v. Birchfield, 342

Or 624, 629, 157 P3d 216 (2007), the court noted Moore’s

express adherence to the two-part test of Roberts and, in

particular, on the unavailability requirement. Indeed, it

emphasized Moore’s insistence that “the focus when con-

sidering the strictures of the Oregon Constitution had been

and would continue to be on ‘necessity as the justification for

admitting hearsay against a criminal defendant, once con-

frontation became impossible.’ ” Birchfield, 342 Or at 629-30

(quoting Moore, 334 Or at 339). More recently, in Copeland,

353 Or at 826, the court reaffirmed Campbell and Moore.

The court noted that the latter decision had “referred to the

unavailability requirement in sweeping terms.” Id. But it

did nothing to qualify that requirement.

As did the court in Copeland, we acknowledge that

there is phrasing in Moore that is indeed sweeping. The

court there referred to “necessity as the justification for

admitting hearsay against a criminal defendant, once con-

frontation became impossible.” Moore, 334 Or at 339. The

reference to impossibility must be taken in the light of the

Supreme Court’s qualification in Roberts that, of course, the

law does not require the state to engage in futile measures.

Roberts, 448 US at 74.

66 State v. Harris

That said, in light of the foregoing case law, the

state’s contention that Article I, section 11, requires only

that it have subpoenaed a witness is untenable. The con-

stitutional confrontation guarantee requires the state to

do more than select one from any number of reasonable

means of securing the presence of a witness and call it a

day. Reliance on hearsay in lieu of live testimony must be

a matter of “necessity.” The state must have exhausted all

reasonably available means of producing the witness.

In that regard, we have found a notable lack of

support in the case law of this state or others for the view

that the state proposes in this case, viz., that unavailability

may be established simply by showing that a witness did

not comply with a subpoena. See, e.g., State v. Beyer, 72 Haw

469, 473, 822 P2d 519 (1991) (“Mere service of a subpoena on

the complaining witness did not establish her unavailabil-

ity.”), overruled on other grounds by State v. Moore, 82 Haw

202, 921 P2d 122 (1996); State v. Rivera, 51 Wash App 556,

561, 754 P2d 701 (1988) (“The State cannot claim good faith

solely on the issuance of the subpoena.”); Bentley v. State,

706 P2d 1193, 1197 (Alaska Ct App 1985). But see State v.

Trice, 292 Neb 482, 490, 874 NW2d 286 (2016) (“[S]erving

a witness with a subpoena to testify ordinarily constitutes

a sufficient good faith effort to procure the witness’ atten-

dance at trial.”).

It is undisputed that the state could have pur-

sued other measures to produce the victim in this case.

We need not decide, however, whether the state reasonably

should have pursued those other measures. In this case, the

state agreed to a continuance to permit it to make further

attempts to secure its witness. But defendant objected to

any such continuance. Defendant does not explain, and we

do not understand, how the state can be faulted for failing

to obtain a continuance to pursue other means of produc-

ing the witness when defendant objected to the state being

allowed to do just that. The Court of Appeals found it signif-

icant that the state did not request a continuance. Harris,

279 Or App at 457 n 4. But, given that the trial court had

said that it would allow the state additional time to secure

the witness, a specific request for the court to do that was

not necessary.

Cite as 362 Or 55 (2017) 67

By objecting to the state being allowed to take fur-

ther measures to produce its witness, defendant essentially

invited any error that may have resulted. As this court has

long held, invited error is no basis for reversal. See, e.g.,

State v. Koennecke, 274 Or 169, 173-74, 545 P2d 127 (1976)

(state, having invited error by asking the trial judge to enter

an order, could not appeal that order); Valdin v. Holteen and

Nordstrom, 199 Or 134, 152, 260 P2d 504 (1953) (“[D]efen-

dant objected, and, because of his objection, the proper pro-

cedure was not followed. * * * Defendant invited this error

and is in no position to complain thereof.”); State v. Weitzel,

157 Or 334, 344, 69 P2d 958 (1937) (“It will not do for coun-

sel to invite error and then complain about it.”).

In sum, we reject the state’s contention that the

unavailability requirement of Article I, section 11, is sat-

isfied when a witness fails to comply with a subpoena. The

state must exhaust reasonably available measures for pro-

ducing the witness. In so holding, however, we reiterate that

the rule is one of reasonableness under the circumstances of

the individual case.

In this case, defendant objected to the state being

granted the time to pursue other means of producing the

victim as a witness. Under those circumstances, defendant

is in no position to complain that the trial court erred in

concluding that the victim was unavailable for confrontation

purposes and in admitting the 9-1-1 recording of her report.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.