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May 8, 2018 02:27 PM IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Clackamas County Circuit Court Case No. CR1400136 Plaintiff-Respondent, Respondent on Review, CA A158854 v. S065355 KELLY LEE EDMONDS, Defendant-Appellant Petitioner on Review. PETITIONER’S BRIEF ON THE MERITS Review the decision of the Court of Appeals on Appeal from a Judgment of the Circuit Court for Clackamas County Honorable Douglas V. Van Dyk, Judge Opinion Filed: June 1, 2017 Author of Opinion: Linder, S. J. Concurring Judges: Tookey, Presiding Judge, and Shorr, Judge, ERNEST G. LANNET #013248 ELLEN F. ROSENBLUM #753239 Chief Defender Attorney General Criminal Appellate Section BENJAMIN GUTMAN #160599 KRISTIN A. CARVETH #052157 Solicitor General Senior Deputy Public Defender DAVID B. THOMPSON #951246 Office of Public Defense Services Assistant Attorney General 1175 Court Street NE 400 Justice Building Salem, OR 97301 1162 Court Street NE [email protected] Salem, OR 97301 Phone: (503) 378-3349 [email protected] Attorneys for Petitioner on Review Phone: (503) 378-4402 Attorneys for Respondent on Review 63739 05/18 i TABLE OF CONTENTS STATEMENT OF THE CASE ............................................................................ 1 Questions Presented and Proposed Rules of Law .......................................... 2 Summary of Argument .................................................................................. 4 Historical and Procedural Facts ..................................................................... 8 Argument ..................................................................................................... 13 I. Introduction ........................................................................................ 13 II. The state cannot rely on OEC 803(6) as an alternative basis for affirmance because law enforcement reports are inadmissible against a criminal defendant under OEC 803(8)(b). ............................................. 14 A. A defendant cannot be expected to have preserved a response in the trial court to an argument the state did not make until appeal; to require preservation under those circumstances undermines procedural fairness. ................................................................................................. 14 B. A law enforcement report is not admissible against a criminal defendant even if it meets the requirements of the business records exception. .............................................................................................. 18 III. Even if this court concludes that the transcript could be admitted under OEC 803(6), notwithstanding OEC 803(8), this court should not affirm on that basis. ............................................................................ 30 A. A reviewing court cannot affirm on an alternative basis if the factual record could have developed differently had the prevailing party relied on the alternative basis below. ........................................... 30 B. This court cannot say that the factual record developed below was necessarily the same record that would have developed if the state had relied on the business records exception below. .................... 33 ii C. This court should not affirm on an alternative basis when that alternative ground would have involved a discretionary decision by the trial court if it had been raised there in the first instance. ............... 40 IV. The erroneous admission of C’s 2002 statement to detectives was not harmless. ...................................................................................... 42 CONCLUSION .................................................................................................455 TABLE OF AUTHORITIES Cases Davis v. O’Brien, 320 Or 729, 891 P2d 1307 (1995) ................................................................... 16 Lindell v. Kalugin, 353 Or 338, 297 P3d 1266 (2013) ................................................................... 26 Outdoor Media Dimensions Inc v. State of Oregon, 331 Or 634, 20 P3d 180 (2001) ............................ 4, 7, 8, 12, 17, 30, 31, 33, 40 Peeples v. Lampert, 345 Or 209, 191 P3d 637 (2008) .............................................................. 15, 16 PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) ............................................................ 20, 21 State v. Burgess, 352 Or 499, 287 P3d 1093 (2012) ................................................................... 33 State v. Edmonds, 285 Or App 855, 398 P3d 998 (2017) ...................................... 2, 11, 12, 15, 36 State v. Edmonds, 362 Or 482, 412 P3d 194 (2018) .................................................... 2, 13, 15, 45 State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) ............................................................ 20, 21 iii State v. Guzek, 322 Or 245, 906 P2d 272 (1995) ..................................................................... 22 State v. Hansen, 304 Or 169, 743 P2d 157 (1987) ..................................................................... 42 State v. Kuznetsov, 345 Or 479, 199 P3d 311 (2008) ..................................................................... 18 State v. Meyrick, 313 Or 125, 831 P2d 666 (1992) ..................................................................... 39 State v. Moen, 309 Or 45, 786 P2d 111 (1990) ....................................................................... 23 State v. Nascimento, 360 Or 28, 379 P3d 484 (2016) ................................................................ 32, 33 State v. Pinnell, 311 Or 98, 806 P2d 110 (1991) ....................................................................... 14 State v. Rodriguez-Castillo, 345 Or 39, 188 P3d 268 (2012) ................................................................ 41, 42 State v. Scally, 92 Or App 149, 758 P2d 365 (1988) ............................................ 15, 16, 17, 40 State v. Townsend, 290 Or App 919, __ P3d __ (2018) ................................................................. 17 Strickland v. Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984) ...................................... 39 U of O Co-Op v. Dept of Rev, 273 Or 539, 542 P2d 900 (1975) ..................................................................... 23 United States v. Brown, 9 F3d 907 (11th Cir 1993), cert den, 513 US 852 (1994) ............................... 27 United States v. Cain, 615 F2d 380 (5th Cir 1980) ............................................................................. 27 iv United States v. Oates, 560 F2d 45 (2nd Cir 1977) ..................................................... 24, 25, 26, 27, 30 United States v. Orellano-Blanco, 294 F3d 1143 (9th Cir 2002) ........................................................................... 27 United States v. Orozco, 590 F2d 789 (9th Cir), cert den, 442 US 920 (1979) ...................................... 29 United States v. Sims, 617 F2d 1371 (9th Cir 1980) ........................................................................... 28 Constitutional Provision and Statutes Or Const, Art VII (Amended), § 3 ...................................................................... 42 FRE 803 .................................................................. 6, 17, 23, 24, 25, 26, 27, 29, i OEC 103 .............................................................................................................. 42 OEC 801 .............................................................................................................. 14 OEC 802 ................................................................................................. 13, 19, 22 OEC 803 .................................................... 3, 5, 6, 7, 8, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 28, 29, 30, 31, 34, 35, 36, 40, 41 OEC 804 .............................................................................................................. 14 OEC 805 .............................................................................................................. 13 ORS 174.020 ....................................................................................................... 22 ORS 41.690 ......................................................................................................... 40 v Other Authorities 120 Cong Rec H12254 (daily ed Dec 18, 1974) ................................................. 25 Charles Alan Wright and Arthur Miller, Federal Practice and Procedure, §7047, at 190 (3rd ed. 2011) ...................... 28 House Bill 2030 in 1981 ..................................................................................... 23 Laird C. Kirkpatrick, Oregon Evidence § 803.01 (6th ed 2013) .................................... 22, 23, 28, 41 Or Laws 1981, ch 892, § 64 ................................................................................ 23 S.Rep. No. 1277, 93d Cong., 2d Sess ................................................................. 29 PETITIONER’S BRIEF ON THE MERITS STATEMENT OF THE CASE Defendant was charged with the rape of a five-year-old girl that occurred more than 20 years ago, when his then-wife ran a daycare out of their home. At trial, defendant claimed that the now 25-year-old victim, C, had fabricated a memory of the event and was confusing it with subsequent sexual abuse committed against her by her stepfather. The state presented little evidence that C had discussed the rape with anyone before she reported it to police as an adult. Critical
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