State v. Clark

ROSENBLUM, J.,

dissenting.

This case is about whether the deceased victim’s conversation with a friend (the witness Pennington) that was had in the presence of — and heard by — defendant, describing an incident in which defendant had threatened to kill the victim, should have been allowed into evidence at trial. Defendant killed the victim, his former girlfriend, a few nights after the conversation with Pennington. The majority concludes that the statements were hearsay and that the trial court erred in admitting them as “adopted admissions” by defendant under OEC 801(4)(b)(B). I disagree that the trial court erred and, therefore, dissent.

The circumstances of this case are unusual in several important respects: First, unlike many “adopted admissions” cases, there was no police presence whatsoever at the time the statements were made. No crime had occurred; no crime was under investigation. Second, the state’s sole purpose in offering the statement in this case was to provide circumstantial evidence of defendant’s intent to kill the victim. Thus, the statement was offered to prove only that defendant had said, on a prior occasion, that he would kill the victim if he could not have her as his girlfriend. That is precisely the sort of statement that cries out for a denial or clarification by the maker of the statement — if in fact it was not made or was otherwise misunderstood. This is particularly true when, as here, there was a clear opportunity for defendant to clarify his intentions, whether or not he had made the statement. Instead, defendant responded simply by staring at the wall. A few days later, the victim was dead, and the defense to the murder charge was that defendant had not acted intentionally.

*489 As the majority notes, Oregon does not have a definitive rule prohibiting adopted admissions by silence in all criminal cases. 217 Or App at 482-83. Indeed, the legislative commentary accompanying the enactment of the Oregon Evidence Code indicates that the legislature, while being fully cognizant of the special concerns raised in criminal cases, chose not to adopt such a bar, except in the narrow circumstances where the silence occurs during police interrogation after Miranda warnings have been given:

“Adoption or acquiescence may be manifested in any appropriate manner. The greatest issues surround silence, where the theory is that the person would have protested an untrue statement. This calls for an evaluation of probable human behavior under the circumstances. In civil cases the results have been generally satisfactory. In criminal cases, troublesome questions are raised. The inference involved is fairly weak to begin with. Silence may be motivated by advice of counsel or a realization that ‘anything you say may be used against you.’ Unusual opportunity is afforded to manufacture evidence. Encroachment upon the privilege against self-inclimination seems inescapable. Not surprisingly, in Doyle v. Ohio, 426 US 610 , 96 S Ct 2240 , 49 L Ed 2d 91 (1976) and United States v. Hale, 422 US 171 , 95 S Ct 2133 , 45 L Ed 2d 99 (1975), the United States Supreme Court held that evidence of silence during police interrogation is inadmissible at the defendant’s subsequent trial for the purpose of impeaching the defendant’s credibility. Such evidence was declared to be insolubly ambiguous, fundamentally unfair and possessed of an intolerably prejudicial impact. The Legislative Assembly agrees. This subparagraph should not be construed to allow the admission, for any purpose in a criminal case, of evidence of silence during police interrogation after the defendant has been informed of the right to remain silent as provided in Miranda v. Arizona, 384 US 436 , 86 S Ct 1602 , 16 L Ed 2d 694 (1966). In light of the Doyle and Hale decisions, Rule 801 contains no special provisions concerning failure to deny in criminal cases.”

Legislative Commentary to OEC 801(4)(b)(B), reprinted in Laird C. Kirkpatrick, Oregon Evidence § 801.03, 674 (5th ed 2007). The legislature thus contemplated that a criminal defendant’s silence could constitute an adopted admission as long as the circumstances did not involve police interrogation *490 after the administration of Miranda warnings. See also Kirkpatrick, Oregon Evidence § 801.03 at 685 (“Silence in the face of accusations by persons other than law enforcement officers may be admissible against the defendant in a criminal case.”).

In my view, this case presents an opportunity to clarify that a criminal defendant’s silence may manifest an adoption where, as here, defendant heard and understood the accusatory statement, it was the sort of statement that, under the circumstances, a reasonable person would deny, disavow, or, at a minimum, attempt to clarify, and where the statement did not arise during police interrogation after Miranda warnings had been given.

Defendant argues that this approach is precluded in Oregon, relying on the court’s observation in State v. Severson, 298 Or 652, 657 , 696 P2d 521 (1985), and quoted in State v. Carlson, 311 Or 201, 207 , 808 P2d 1002 (1991), that “[a] party may adopt a statement either expressly, impliedly, by conduct or, in a civil case, by silence. Commentary to Oregon Evidence Code 148-49 (1981).” (Emphasis added.) The majority is, at least to some extent, persuaded by that argument. See 217 Or App at 482 (positing that “[djefendant’s contention is not clearly incorrect” and noting that the Alabama Supreme Court has adopted it). Yet, as the majority recognizes, it does not necessarily follow from the statement made by the court in Severson that the opposite is also true — that is, that silence can never be sufficient in a criminal case. Such a reading of Severson is particularly doubtful in light of the Severson court’s citation to the legislative commentary, which, as demonstrated above, evidences the legislature’s intention to exclude the use of silence in criminal cases only in certain circumstances. See Kirkpatrick, Oregon Evidence § 801.03 at 685 (“As the Commentary indicates, adoption by silence should rarely be found in a criminal case where the defendant has failed to respond to an accusation made by or in the presence of a law enforcement officer.” (Emphasis added.)).

Carlson , the leading Oregon case on the subject of adopted admissions, also does not compel the conclusion that silence is automatically an insufficient basis upon which to *491 find that a statement has been adopted by a criminal defendant. Although the court in Carlson explained that “[a] mere listening presence does not indicate that a party has manifested an adoption of or a belief in the truth of another person’s statement,” 311 Or at 207 , the import of the court’s comment is simply that silence does not automatically satisfy the requirement of the rule for adopted admissions; it does not foreclose the possibility that, given the totality of the circumstances under which the statement was made, a criminal defendant’s silence in light of those circumstances may nevertheless demonstrate, rather than a “mere listening presence,” the defendant’s intention to adopt the statement. Indeed, the federal treatise cited by the Carlson court for the proposition that a “listening presence” alone is insufficient says as much:

“[D]eciding that a party was present and that he heard a statement uttered by another represents only one step in a larger inquiry. It should not by itself satisfy Rule 801(d)(2)(B).[ 1 ] A mere listening presence does not indicate that a party has adopted or manifested his belief in everything that is said, and even active participation in a conversation does not so indicate. The philosophy of the adversary system does not, in such minimal circumstances, suggest that the absence of the usual safeguards of oath, cross-examination, and demeanor evidence should be excused. In addition to a listening presence, it should be shown that a party has replied or otherwise spoken or acted in a manner which shows his adoption or belief in the statement or, if the party has stood silent, that the circumstances indicate that silence manifests belief or adoption”

David W. Louisell & Christopher B. Mueller, 4 Federal Evidence § 424, 265-66 (1980) (footnote omitted; emphasis added); 2 see also Kirkpatrick, Oregon Evidence § 801.03 at *492 683 (“Adoption by implication may be found when a party remains silent in response to a statement where a reasonable person, under the circumstances, would deny correct, or otherwise answer the statement if false.”).

The treatise farther explains that, when a party does or says nothing in response to a statement, the question whether the inaction or silence indicates adoption must be resolved by examining the circumstances. Louisell and Mueller, 4 Federal Evidence § 424 at 268. To indicate adoption, it must appear that the party heard the statement, the matter was within his or her knowledge, and, “perhaps most importantly,” “the occasion and nature of the statement [were] such that the party would likely have replied if he did not mean to accept what was said.” Id. (footnote omitted); see also U.S. v. Kehoe, 310 F3d 579, 591 (8th Cir 2002), cert den, 538 US 1048 (2003) (for an out-of-court statement to constitute an adopted admission under FRE 801(d)(2)(B), the defendant must have been present when the statement was made, have understood it, and have had an opportunity to deny it); United States v. Moore, 522 F2d 1068, 1075-76 (9th Cir 1975), cert den, 423 US 1049 (1976) (“The general rule concerning admissions by silence or acquiescence is well established. When an accusatory statement is made in the defendant’s presence and hearing, and he understands and has an opportunity to deny it, the statement and his failure to deny are admissible against him.”). Even if the minimum conditions are satisfied, however, the statement still should be excluded if it appears that (1) the party did not understand the statement or its significance, (2) the party was prevented from replying by “some physical or psychological force,” (3) the speaker was someone whom the party would be likely to ignore, or (4) in the criminal context, the statement was made by law enforcement officers, or persons acting on their *493 behalf, during custodial interrogation. Louisell and Mueller, 4 Federal Evidence § 424 at 268-69.

The circumstances in this case satisfy the requirements for an adopted admission as outlined above. First, the trial court found — and the evidence supports — that defendant heard the victim’s statements. The bar was relatively quiet that night, no music was playing, and defendant was sitting within hearing range of the victim. It is also beyond dispute that defendant had knowledge of the subject matter of the statements.

Next, the statements did not occur in response to police questioning or, indeed, even in the presence of a police officer or under other circumstances where defendant might reasonably be expected to remain silent due to concerns that “anything he said could be used against him.” This is far different from the circumstances of Carlson , in which the statements were made in the presence of police officers as they were investigating the defendant for possible criminal behavior. 3

Most importantly, the “occasion and nature” of the statements were such that a reply would be expected. Louisell and Mueller, 4 Federal Evidence § 424 at 268 (among the factors to be considered in determining whether a party’s silence indicates adoption, perhaps most important is whether “the occasion and nature of the statement were such *494 that the party would likely have replied if he did not mean to accept what was said”). As the Second Circuit explained:

“Where the defendant’s adoption of another person’s statement purportedly is manifested by silence, or other ambiguous conduct, courts will consider the incriminatory content of the statement in order to determine whether the defendant actually has adopted the statement by his silence. The rationale of such cases is that a person ordinarily will respond to an incriminatory or defamatory statement with a denial, or at least with some indication that he objects to the statement as untrue.”

United States v. Shulman, 624 F2d 384, 390 (2d Cir 1980).

Here, the statements attributable to defendant were particularly inflammatory and portrayed defendant in the worst possible light — according to the victim, he said “[h]e was going to kill her” and “if he couldn’t have her then nobody else was going to.” Those are precisely the type of words that would be expected to draw a reply if defendant did not mean to accept that he had said them. And, defendant had ample opportunity to reflect on what the victim said and to refute the statements. That is especially true in light of the fact that he was prompted to respond by the victim: When Pennington pointed out that defendant was sitting close enough to hear the victim, the victim responded, “I don’t care. He can hear. He knows what he did.” Even so, defendant did nothing to deny or disavow that he had made such serious threats. Even after Pennington suggested to the victim that she contact the police, defendant did not respond.

Still, the majority contends that the circumstances fail to establish that defendant’s silence was “anything more than a ‘mere listening presence.’ ” 217 Or App at 484. The majority is apparently persuaded that defendant’s lack of reply was explained by some psychological force or because the victim was someone whom defendant would likely ignore, see 217 Or App at 484 n 3 (explaining other possible reasons for defendant’s lack of response and recounting the testimony of one witness that “it would not have been out of character for defendant to maintain silence in response to a negative statement that the victim made about him”). 4

*495 That position is not supported by the record. As to this point, some elaboration of the facts recounted in the majority opinion is necessary. The majority relates that the victim and defendant were both at the Grove Tavern the night the conversation that is the subject of this appeal took place, and they were also both there a few nights later, the night of the victim’s death. What is not readily apparent from the majority opinion, however, is that the Grove was essentially a home away from home for defendant and the victim and the “on again, off again” relationship between them largely existed at the Grove, a small bar where the “regulars” all knew one another. The victim worked at the Grove as a cook and bartender and lived nearby; defendant, who was out of work, often just hung out there when the victim was working; and the two socialized there all the time, both together and independently. On the night of the victim’s death, for example, although they had broken up a few weeks earlier, and the victim was not working that night, both defendant and the victim were at the Grove at around 5:00 to 6:00 in the evening, and they were still there when the bar got ready to close between 2:00 and 2:30 the following morning. They also were both present in the bar on the several nights before the crime occurred.

Testimony at trial revealed that the drama of their tumultuous relationship also often played out at the Grove. Indeed, the picture that had emerged at trial by the time the court admitted the disputed testimony was one of frequent— and loud — arguing and bickering between defendant and the victim. (As one witness indicated, “everyone knew they weren’t getting along.”) Defendant was not just a passive receptor for the victim’s negative comments, as the majority would have us believe. For example, Newton, who also worked at the Grove, testified that, during one of their fights, defendant called the victim names, such as “nasty fat bitch,” loud enough for everyone to hear. Again, on the night before the crime, the victim was tending bar and defendant “kept pestering her.” According to Newton, “he would come in and say things and it would upset her.” This went on for several *496 hours, according to Newton. Ames, another frequenter of the Grove, described their arguments as “more of them saying smart comments to each other loud enough for the whole bar to hear.” Rhodes, who also knew the victim and defendant from the Grove, testified that “[t]here was fighting a lot,” generally about money and flirting, and “[i]f they’d start raising their voices, I’d leave.” Similarly, the owner of the tavern described the arguments between them as “airing their dirty laundry” loud enough for others to hear.

For the same reasons, defendant also cannot, as the majority suggests, be characterized as a “bystander” to the conversation. 217 Or App at 485. This is not a case, in the words of Mueller and Kirkpatrick, of “saddl[ing] [defendant] with statements by outsiders to which [he has] a loose and uncertain connection.” Mueller and Kirkpatrick, 4 Federal Evidence § 8:47 at 387. Defendant and the victim had an existing relationship. They were often at the Grove at the same time, and, whether they could be characterized as being there “together” on any particular day, it was not unusual for them to argue back and forth or to make negative comments about the other loud enough for the other to hear. At the time the statements in question were made, they were even seated very close — within a seat or two of one another — and, at some point during the evening, when the victim moved over a seat or two, defendant also moved over. 5

In sum, while I am mindful that inferring adoption from silence in a criminal case must be approached with caution, given the totality of the circumstances of this case, I agree with the trial court that defendant’s silence represented a “classic” adopted admission by silence. In other words, I would affirm the ruling of the trial court because the evidence supports that defendant heard and understood the *497 statement, it was of a type that a reasonable person would likely have responded to if untrue, defendant had an opportunity to deny, disavow, or explain the statement, but did not, and the statement was not made in the presence of police. None of the factors that might, nevertheless, suggest that exclusion would be appropriate, 217 Or App at 492-93 (Rosenblum, J., dissenting), is present here.

Therefore, I respectfully dissent.

Haselton, Armstrong, and Ortega, JJ., join in this dissent.

FRCP 801(d)(2)(B) is essentially identical to OEC 801(4)(b)(B).

The most recent edition of the treatise, authored by Mueller and Kirkpatrick, contains a similar explanation, expressing the concept as follows:

“The philosophy of the adversary system and the underlying notion of personal responsibility do not extend so far as to suggest that parties should be saddled with statements by outsiders to which they have a loose and uncertain connection. Adoption turns on whether a party replied in a way that shows agreement with something said by another person, or otherwise spoke or acted in a *492 manner that shows agreement less directly. If she remained silent as others spoke, this behavior too can show agreement, but much then depends on the nature of the situation, and inferring agreement from inaction or silence is more problematic.”

Christopher B. Mueller and Laird C. Kirkpatrick, 4 Federal Evidence § 8:47,386-87 (3d ed 2007) (emphasis added). Because the first edition of the treatise is the edition relied on by the Supreme Court in the Carlson decision, we generally cite it throughout this opinion. The same discussion, however, appears in the current edition. See Mueller and Kirkpatrick, 4 Federal Evidence § 8:47 at 386-97 (3d ed 2007).

Interestingly, Mueller and Kirkpatrick suggest that, under FRE 801(d)(2)(B), even the presence of police officers may not be enough to defeat the finding that a suggestive statement was adopted by silence:

“Silence by the defendant .within earshot of officials in the face of accusations or suggestive questions by friends or cohorts is probably admissible if the situation suggests adoption.

“If the defendant is not in custody, the presence of law enforcement officers does not block an inference of adoption or raise constitutional concerns. The question whether silence indicates adoption depends entirely on the circumstances, and particularly on the question whether the accused (a reasonable person in the position of the accused) would likely have replied in some more definitive way than the defendant did when the statement was made, so that his silence or equivocal response fairly indicates agreement with the points implied in the statement.”

Mueller and Kirkpatrick, Federal Evidence § 8:48 at 402 (footnote omitted; emphasis in original).

None of the other exclusions is even arguably applicable here: Nothing in the record indicates that defendant did not understand or appreciate the significance *495 of the statement, no physical barriers prevented defendant from responding, and, as noted, the statement was not made during custodial interrogation or even, as was the case in Carlson, in the presence of police.

In any event, the majority overplays the significance of the federal courts’ reliance on the “active participant” distinction. 217 Or App at 484-86. In each of the cases the majority relies on to illustrate that proposition — U.S. v. Ward, 377 F3d 671 (7th Cir 2004), cert den, _ US _ , 127 S Ct 56 (2006); Kehoe, 310 F3d at 591 ; Moore , 522 F2d at 1076; and Arpan v. United States, 260 F2d 649, 657 (8th Cir 1958) — the fact that the defendant was or was not an “active participant” in the conversation was significant only to the court’s determination of whether the defendant had heard and understood the statement. In this case, however, the trial court made an explicit finding that defendant heard the statement and, as the majority concedes, that finding is supported by evidence in the record.