Benjamin Gutman #160599 Kristin A

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

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

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 to the state’s case, then, was a hearsay statement she made in

2002, when she was 13 years old and interviewed by police about her stepfather. She told detectives that she had been touched in a sexual way at a babysitter’s house when she was “really, really, really young.” Neither the detective who testified at trial, nor C, remembered that statement having been made. Over defendant’s hearsay objection, the trial court permitted the detective to read a transcript of that portion of the interview at trial under the past recollection recorded exception to the rule against hearsay.

On appeal, defendant argued that the first layer of hearsay involved – the transcript of C’s interview – did not meet the requirements of the past recollection recorded exception and the entire statement was therefore inadmissible. The state conceded that the past recollection recorded exception 2 did not apply under these circumstances. But the state contended for the first time on appeal that a different hearsay exception – one for business records – permitted the introduction of the transcript.

The Court of Appeals accepted the state’s concession that the trial court erred by admitting the evidence as a prior recollection recorded, agreed with the state that the evidence would nevertheless have been admissible under the business records exception, and affirmed defendant’s conviction on that basis.

State v. Edmonds, 285 Or App 855, 398 P3d 998 (2017). Defendant petitioned from that decision, and this court allowed review. State v. Edmonds, 362 Or

482, 412 P3d 194 (2018).

Questions Presented and Proposed Rules of Law

First Question Presented

If the prevailing party relies on an alternative basis for affirmance on appeal, is the opposing party required to have preserved, in the trial court, his response to that new ground for affirmance?

First Proposed Rule of Law

The losing party is not required to have preserved in the trial court a response to an argument the prevailing party was not yet making. Under those circumstances, the preservation requirement is excused. 3

Moreover, to affirm on an alternative basis, a reviewing court must determine if the trial court’s ruling was correct for the new reason offered. A court cannot do that unless it fully considers the issue, including any responses to the alternative ground.

Second Question Presented

OEC 803(8) excludes from the hearsay ban certain public records. OEC

803(8)(b) provides an exception for reports of matters observed, but goes on to specifically bar the admission of reports “by police officers and other law enforcement personnel” against a criminal defendant. OEC 803(8)(c) provides an exception from the rule against hearsay for reports and statements that make

“factual findings, resulting from an investigation made pursuant to authority granted by law,” but only “[i]n civil actions and proceedings and against the government in criminal cases.” May the state avoid the express and implicit prohibitions in OEC 803(8) by seeking to have a report prepared by law enforcement personnel admitted under the business records exception, OEC

803(6), instead?

Second Proposed Rule

OEC 803(8) specifically prohibits the admission of police reports against criminal defendants and controls over the more general business records exception. A party cannot subvert OEC 803(8) by relying on OEC 803(6).

Third Questions Presented

To affirm on an alternative basis, one requirement of Outdoor Media is that the record must be materially the same as would have developed if the prevailing party had made the argument below. May a reviewing court conclude that that requirement has been met by relying exclusively on statements made by a criminal defendant, without the assistance of his attorney, when those statements are not grounded in the relevant legal authority?

Third Proposed Rule

If a reviewing court relies on statements made by a represented defendant, without the assistance of his attorney, in concluding that the record would have been the same, those statements must be equivalent to a nuanced development of the record and legal argument that would be expected from his trained attorney.

Summary of Argument

At issue in this case is the admissibility of a transcript of an interview of

C conducted by detectives when she was 13 years old. The transcript contains two layers of hearsay and was only admissible if both layers satisfied an exception to the rule against hearsay. Defendant challenges the first layer only

– what the transcriber heard C say to detectives. In the trial court, the state argued that the transcript was admissible as a prior recollection recorded, OEC 5

803(5). On appeal, the state abandoned its reliance on that exception and instead argued an alternative ground for affirmance – the business records exception, OEC 803(6). In response to that new argument, defendant countered that OEC 803(8)(b) prohibits the admission of the transcript under

OEC 803(6) because OEC 803(8)(b) broadly bars the admission of police reports against criminal defendants, and the state cannot get around that prohibition by pointing to the business records exception instead.

The Court of Appeals declined to address defendant’s response to the state’s alternative basis for affirmance because defendant had not preserved that argument in the trial court. That was an unreasonable application of the preservation doctrine. A defendant cannot be expected to preserve a response to an argument the state had not yet made. Moreover, defendant did not have the same motivation to rely on OEC 803(8)(b) in the trial court. Controlling

Court of Appeals case law held that OEC 803(8)(b) does not bar admission of police reports that are offered and admitted under the prior recollection recorded exception – the exception the state was relying on below. Finally, to affirm on an alternative basis, a reviewing court must determine if the trial court’s decision was correct, and to make that decision, it must fully consider the issue. It cannot do so when it refuses to consider a response on misdirected preservation principles. 6

If the Court of Appeals had fully considered whether OEC 803(8)(b) prohibits the admission of police reports as a business record under OEC

803(6), it would have answered in the affirmative. OEC 803(8)(b), the public records exception, specifically prohibits the admission of police reports against a criminal defendant. The legislature has indicated that a more specific statute controls over the general, and OEC 803(8)(b)’s prohibition therefore controls over OEC 803(6).

OEC 803 is materially indistinguishable from the relevant provisions of its federal counterpart, and this court can look to federal cases in construing the interplay between OEC 803(8)(b) and OEC 803(6). Significantly, several years before the adoption of OEC 803, the Second Circuit Court of Appeals conducted an exhaustive analysis of the issue, examining the text and legislative history of FRE 803(6) and FRE 803(8). It ultimately concluded that Congress intended FRE 803(8)(b) to provide an absolute bar to the admission of police records against criminal defendants, and that that prohibition applies “with equal force” to any other hearsay exceptions. Other courts and legal commentators have reached the same conclusion. This court too should hold that police records are not admissible under OEC 803(6) because of OEC

803(8)(b)’s specific prohibition on admission.

Lastly, even if this court disagrees with the above argument and concludes that the state can seek admission of police records against a criminal 7 defendant under OEC 803(6), this court should not affirm on that alternative ground. Under Outdoor Media, an appellate court can affirm on an alternative basis only if certain requirements are met, one of which is that, if the issue is not purely one of law, the evidentiary record must be sufficient. And for the record to be sufficient, it must be materially the same as would have been developed if the prevailing party had relied on the theory below.

The factual record here may have developed differently if the state had relied on OEC 803(6) below. That is because OEC 803(6), unlike OEC 803(5), specifically grants the trial court wide discretion to exclude a business record otherwise meeting the requirements of the exception if there are concerns about its trustworthiness. If the state had relied on OEC 803(6) below, defendant could have cross-examined the detective and otherwise made a record demonstrating that the transcript was untrustworthy.

The Court of Appeals rejected defendant’s contention that the issue of the trustworthiness would have developed a different record by pointing to a lengthy colloquy between defendant, on his own behalf and without counsel assisting him, and the trial court. The Court of Appeals unexpectedly concluded that that was the same record that would have been developed if defendant’s attorney had sought to undermine the trustworthiness of the transcription. But defendant’s discussion with the trial court was not grounded in any relevant legal authority – it was couched as a complaint about “some sort 8 of Brady violation” – and lacked the nuanced development of the record and cogent legal argument that would be expected from a trained attorney.

Therefore, even if this court determines that OEC 803(6) provides a path to the transcript’s admissibility, the requirements of Outdoor Media were not met to affirm on that basis, and defendant is entitled to a new trial.

Historical and Procedural Facts

The Court of Appeals summarized the relevant historical and procedural facts:

“Defendant was charged with raping a five-year-old girl sometime in 1994 or 1995, while she was staying in his home where his wife operated a daycare business. Defendant’s theory at trial was that the victim, who was 25 years old at the time of trial, had formed a false memory of the event and was confusing it with sexual abuse committed by her stepfather, which started when she was seven years old. To rebut that defense of ‘recent fabrication,’ the state sought to prove that the victim made statements and disclosures, both at the time of the rape and in the years that followed, that were consistent with her testimony describing the rape.

“At issue here is evidence of a disclosure that the victim made in 2002, when two deputy sheriffs—Detective Delehant and Detective Clinton—interviewed the victim to determine if she was being sexually abused by her stepfather. During that interview, the victim related an instance of prior abuse that was consistent with her claim at trial that defendant had raped her while she was in daycare at his home. Delehant, for reasons that are not a matter of record, was not available to testify. Clinton, who was available as a witness, did not recall all the details of the 2002 interview and, in particular, did not recall the victim’s disclosure of the earlier abuse. The state therefore intended to rely on a transcript of the interview that was part of the police file on the stepfather’s case. 9

“Defendant filed a motion in limine seeking to exclude the transcript on hearsay grounds. The state responded that the transcript was admissible as a past recollection recorded, given Clinton’s inability to recall the victim’s disclosure. Defendant disputed its admissibility on that ground, pointing to the requirement in OEC 803 (5) that a past recollection recorded must be ‘shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly.’ (Emphasis added.) Defendant argued that Delehant had been responsible for having the transcript of the interview prepared and that Clinton, the only one of the two to be called as a witness, had neither prepared nor personally reviewed the transcript for accuracy after the interview. As a result, according to defendant, the state could not satisfy the foundation needed for the past recollection recorded exception to the hearsay rule.

“The state, for its part, did not dispute that Delehant, and not Clinton, had been responsible for preparing and reviewing the transcript. But the state maintained that it could lay the requisite foundation for the exception through Clinton’s testimony. According to the state, Clinton could testify to the regular procedures followed by the sheriff’s office for victim interviews, which was to record the interview and then prepare a transcript of that recording that an officer present for the interview checked for accuracy. The transcript was then made a part of ‘their business record.’ In this case, it was undisputed that Delehant had signed the transcript and the transcript had been placed in the file of the case that he was investigating at the time. The state urged that Clinton’s description of the regular procedures followed in the sheriff’s office, coupled with Delehant’s signature on the transcript, established that Delehant had ‘made or adopted’ the transcript when the details of the interview were fresh in his mind, satisfying the requirements of the past recollection recorded exception to the hearsay rule.

“The trial court agreed, concluding that the state’s proffer ‘is likely to be a sufficient foundation’ to admit the evidence as a past recollection recorded. The court therefore denied defendant’s pretrial motion to exclude the evidence, while noting that the 10 defense was free to ‘make its objection again’ if the state did not lay the foundation that it had represented it would lay.

“At trial, the state called Clinton as a witness. Although Clinton recalled the 2002 interview of the victim generally, he did not recall the victim disclosing the prior abuse. As a predicate to asking Clinton to read a portion of the transcript of the 2002 interview, the state established that Clinton, who had been employed by the Clackamas County Sheriff's Office for 27 years and was a detective for 20 of those years, knew the procedures followed by the sheriff's office for making and keeping records of victim interviews. Clinton explained that, at the time of the 2002 interview, the normal practice for an officer investigating a criminal case was to make a recording of an interview using a cassette recorder. The officer who made the recording would then submit it to the records division, which in turn would prepare a written transcript of the recording and return both the transcript and the audio recording to the officer. The officer would check the transcript for accuracy and identify any needed corrections while the interview was fresh in the officer’s mind. After that review, the audio recording and the transcript would be filed in the case file. Once the case being investigated was ‘over,’ the audio recording usually was destroyed due to space limitations, but the written transcript was retained in the file.

“In this instance, Delehant, not Clinton, recorded the 2002 interview with the victim. Clinton therefore had no role in preparing or reviewing the transcript of the 2002 interview; those tasks were Delehant’s responsibility. Clinton therefore could not say whether Delehant in fact had reviewed the transcript for accuracy while the interview was fresh in Delehant’s memory. Consistently with its policies, the sheriff’s office had retained the written transcript of the interview in its files. In preparation for trial in this case, Clinton had reviewed the transcript, but that review did not refresh his memory of the victim’s statements about the prior abuse. However, based on what he could independently recall of the interview, and given the office’s regularly followed procedures, Clinton did not doubt the transcript’s accuracy.

“After eliciting that testimony from Clinton, the state began to ask the detective about the contents of the transcript. Defendant 11

renewed his objection based on a lack of foundation; the trial court overruled it. Clinton then read a short portion of the transcript to the jury in which the victim told the detectives that she had been touched in a sexual way at a ‘babysitter’s’ when she was much younger. One of the detectives asked if the touching had happened in Oregon, and the victim confirmed that it had. The detectives did not ask her any other questions about that disclosure, and no other portions of the 2002 interview transcript were presented to the jury in the trial in this case.”1

Edmonds, 285 Or App at 856-59.

On appeal, defendant renewed his argument that the state had failed to satisfy the foundational requirements for the past recollection recorded exception to the hearsay rule, OEC 803(5), and the trial court therefore should not have admitted the contents of the transcript. App Br at 20-27. The state agreed that the past recollection recorded exception did not justify the admission of the transcript, but contended that it was nevertheless admissible under the business records exception, OEC 803(6). Resp Br at 6-12.

Defendant raised several arguments in reply to the state’s alternative basis for affirmance. First, defendant asserted that OEC 803(8)(b), which prohibits admission of reports of “matters observed by police officers and other law enforcement personnel” against a criminal defendant, precluded admission of the transcript as a business record. That is, OEC 803(8)(b) controls over the

1 There was no indication in the trial court that detectives conducted any further investigation into C’s disclosure at the time she made it in 2002. Tr 33, 468. 12 more general business records exception. Therefore, 803(6) could not be relied upon by the state in these circumstances. Reply Br at 10-13.

Assuming the business records exception could apply here, defendant raised an alternative argument. Defendant contended that the business records exception, OEC 803(6), permits the trial court to exclude a record that otherwise met the exception if it lacked trustworthiness. The prior recorded recollection exception, in contrast, has no such explicit trustworthiness analysis.

The record could have developed differently if the state had relied on the business records exception below, then, because defendant would have had an impetus to demonstrate that the transcript lacked trustworthiness. As such, the requirements of Outdoor Media Dimensions Inc v. State of Oregon, 331 Or 634,

20 P3d 180 (2001), were not satisfied. Reply Br at 13-14.

The Court of Appeals agreed with the state. The court refused to address defendant’s response that the business records exception could not be relied upon in this case because a different and more specific hearsay provision prohibits the admission of police reports against a criminal defendant. The

Court of Appeals noted that because defendant had not raised that argument in the trial court, that response was unpreserved. Edmonds, 285 Or App at 868 n

10.

The Court of Appeals explicitly rejected defendant’s argument that the requirements of Outdoor Media were not satisfied because the record could 13 have developed differently had that business records hearsay exception been relied upon below. Id. at 867. In holding that the record already adequately addressed factual issues of trustworthiness raised by the business records exception, the court relied exclusively on statements defendant made to the trial court personally and without the assistance of counsel. Those statements were disjointed, not grounded in the relevant legal authority, and prefaced by defense counsel informing the trial court, “I’m not entirely sure I understand

[defendant’s argument] either.” Tr 53. The court then held that the transcript was admissible as a business record and affirmed defendant’s conviction.

Edmonds, 266 Or App at 868.

Argument

I. Introduction

This case involves the admissibility of hearsay evidence: Detective

Clinton read a transcript of C’s statement, given to detectives when she was 13 years old, in which she stated that she had been touched in a sexual way at a babysitter’s house when she was much younger. In other words, Clinton testified about what the transcriber heard C say to detectives, and did so to prove the truth of the matter asserted. That is double hearsay and only admissible if each level of hearsay satisfies an exception to the rule. See OEC

805 (“Hearsay included within hearsay is not excluded under [OEC 802] if each 14 part of the combined statements conforms with an exception set forth in

[OEC 803 or 804].”). Defendant is challenging only the first layer of hearsay – what the transcriber heard C say to detectives. That level of hearsay “involves the perception, recollection, narration and sincerity of the [transcriber].” State v. Pinnell, 311 Or 98, 117 n 29, 806 P2d 110 (1991) (describing two layers of hearsay at issue in a transcript of a security release hearing). The second layer of hearsay, or what C said in response to the detectives’ questions, is not at issue.2

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).

Appeals that OEC 803(6), the business records exception, justified the introduction of the transcript. In response to that alternative basis for

2 The state argued below, and the trial court apparently agreed, that the second layer of hearsay – C’s statements to detectives – was admissible under OEC 801(4)(a)(B) (statement not hearsay if declarant testifies and statement is offered to rebut charge of recent fabrication) or OEC 803(18a)(b) (statement of act of abuse not excluded by hearsay rule if declarant testifies and is available for cross-examination). 15 affirmance, defendant argued that OEC 803(8)(b) specifically forbids the admission of police reports against a criminal defendant as a business record, and the state cannot bypass that prohibition by relying on the business records exception. See Reply Br at 10-13 (so arguing).

The Court of Appeals invoked principles of preservation and refused to address defendant’s response:

“Unlike the state’s argument for affirmance on an alternative ground, defendant’s reliance on OEC 803(8) is an alternative ground for reversing the trial court, one that we will not consider unless the trial court’s failure to exclude the evidence on that ground qualifies as plain error. State ex rel Juv Dept v. Pfaff, 164 Or App 470, 480 n 6, 994 P 2d 147 (1999), rev den, 331 Or 193, 10 P 3d 944 (2000) (‘[A]lthough it is axiomatic that we may affirm on grounds not argued to the trial court, there is no authority for the proposition that, without invoking ‘plain error,’ we can reverse the trial court on grounds not argued to it.’ (Emphasis in original.)). Defendant could have raised his OEC 803(8) argument at trial, but he did not. On appeal, he does not attempt to argue that admission of the transcript was plain error on that ground, which, among other things, would require an error of law that is obvious and not reasonably in dispute. See State v. Serrano, 355 Or 172, 179, 324 P 3d 1274 (2014), cert den, ––– U.S. ––––, 135 S Ct 2861, 192 L Ed 2d 899 (2015) (outlining criteria for doctrine); cf. State v. Scally, 92 Or App 149, 151-52, 758 P 2d 365 (1988) (officer could read report into record pursuant to OEC 803(5) even though report was inadmissible under OEC 803(8)). Consequently, we do not consider defendant’s unpreserved reliance on OEC 803(8).”

Edmonds, 285 Or App at 868 n 10 (emphasis in original).

That is a manifestly unreasonable application of the preservation requirement, the “touchstone” of which is “procedural fairness.” Peeples v.

Lampert, 345 Or 209, 220, 191 P3d 637 (2008). In the trial court, a defendant 16 cannot be expected to defend against all possible future legal arguments the state may make just in case the state decides to switch course on appeal. It is worth noting that a purpose of the preservation rule is, among others, to ensure

“fairness to an opposing party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise.” Id.

Paradoxically, the Court of Appeals relied on preservation rules to frustrate defendant’s only opportunity to respond the state’s new argument on appeal, leaving defendant without any substantive answer to the state’s invocation of

OEC 803(6). And that led the Court of Appeals to the extraordinary holding that police files are now admissible against criminal defendants as business records. That is exactly the type of unprecedented result that the rules of preservation are designed to prevent. See Davis v. O’Brien, 320 Or 729, 737-

38, 891 P2d 1307 (1995) (preservation ensures “that parties are not * * * denied opportunities to meet an argument”).

This court has held that under certain circumstances, the preservation requirement “gives way entirely, such as when a party has no practical ability to raise an issue.” Peeples, 345 Or at 220. This is that situation: defendant had no impetus or motivation in the trial court to refute an argument the state was not yet making. Again, in the trial court, the state pointed only to the past recollection recorded exception. In State v. Scally, 92 Or App 149, 151-52, 758

P2d 365 (1988), the Court of Appeals explicitly rejected the argument that OEC 17

803(8)(b) bars the admission of police reports under the past recollection recorded exception when the author of the report testifies at trial.3 That is, the argument that OEC 803(8) prohibited admission of the transcript was foreclosed by existing Court of Appeals case law due to the hearsay exception the state was actually relying on at trial.4 It was not until the state changed its position on appeal that defendant had a meritorious argument that OEC 803(8) prevented admission of the evidence under the business records exception.

Imposing a preservation requirement under those circumstances would not only frustrate procedural fairness, but it would also require a certain degree of clairvoyance.

The Court of Appeals’ reliance on preservation to avoid addressing defendant’s response to the state’s alternative basis for affirmance was misplaced for another reason. A reviewing court cannot affirm on an alternative basis unless the requirements of Outdoor Media have been satisfied.

And one of those requirements is that the decision of the trial court must

3 The Court of Appeals looked to federal case law interpreting the federal rules and held that, “The purpose of FRE 803(8)(b) is to bar police reports as a substitute for testimony of the officer.” Scally, 92 Or App at 151. If the officer testifies, “the danger of unreliability is minimized[.]” Id. at 152.

4 The Court of Appeals recently reaffirmed its decision in Scally in State v. Townsend, 290 Or App 919, __ P3d __ (2018) (holding that when police report is admitted as a past recollection recorded and author testifies at trial, “[w]e agree with the state that defendant’s OEC 803(8) and state constitutional arguments are disposed of by Scally[.]”). 18

actually be correct for the reason presented by the state on appeal. Outdoor

Media, 331 Or at 660 (“The second condition is that the decision of the lower

court must be correct for a reason other than that on which the lower court

relied.”). A reviewing court must determine, then, if the proposed alternative

ground for affirmance is legally proper. Here, the Court of Appeals had an

obligation to fully consider whether the business records exception was

available to the state. It did not. And, as discussed below, a thorough analysis

would have demonstrated that the business records exception could not be

relied upon under these circumstances in light of OEC 803(8). For all of those

reasons, defendant was not required to have preserved a response in the trial

court to a hearsay exception the state did not raise until appeal. See State v.

Kuznetsov, 345 Or 479, 486-87, 199 P3d 311 (2008) (addressing merits of

defendant’s argument, raised for the first time at oral argument in the Court of

Appeals and in response to the state’s alternative basis for affirmance, despite

Court of Appeals’ conclusion that the response was unpreserved).

B. A law enforcement report is not admissible against a criminal defendant even if it meets the requirements of the business records exception.

1. At the first-level rule of statutory construction, the legislature has indicated that a specific statute controls over the more general. This court must determine whether a law enforcement record that satisfies the business records exception, OEC 803(6), is nevertheless 19 inadmissible against a criminal defendant because OEC 803(8)(b) completely bars the admission of such records.

OEC 803 contains exceptions to the rule against hearsay and provides that, “The following are not excluded by [OEC 8025] even though the declarant is available as a witness * * * .”

OEC 803(6), the business records exception, provides that the following are not excluded by OEC 802:

“[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method [or] circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

And OEC 803(8), the public records exception, provides that certain

public records are not excluded, but bars admission of law enforcement records

against a criminal defendant:

“(8) Records, reports, statements or data compilations, in any form, of public offices or agencies, including federally recognized American Indian tribal governments, setting forth:

“(a) The activities of the office or agency;

5 OEC 802 generally prohibits hearsay. 20

“(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, in criminal cases, matters observed by police officers and other law enforcement personnel [“law enforcement reports”];

“(c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness [“evaluative reports”]; or

“(d) In civil actions and criminal proceedings, a sheriff’s return of service.”

(Emphasis added).

Because, as in this case, those two rules may conflict, this court must determine whether the legislature intended OEC 803(8)(b) to prohibit the admission of law enforcement reports against a criminal defendant, notwithstanding the fact that the record meets the requirements of the business records exception. To do so, the court applies the methodology set forth in

PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143

(1993), and clarified in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042

(2009). That is, this court reviews the meaning of the text, the context, the

legislative history of the statute, and if necessary, resorts to general maxims of statutory construction. PGE, 317 Or at 610-12.6

At the first level of statutory construction, it is significant that the exceptions contained in OEC 803 are not phrased in terms of admission.

Instead they are designed to prevent automatic exclusion on hearsay grounds.

“The exceptions to the rule against admissibility of hearsay evidence set forth in this rule are phrased in negative terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility. This is done to repel any implication that other grounds for excluding the evidence are eliminated from consideration.”

Legislative Commentary to OEC 803, reprinted in Laird C. Kirkpatrick,

6 As the Gaines court explained:

“The first step remains an examination of text and context. * * * But, contrary to this court’s pronouncement in PGE, we no longer will require an ambiguity in the text of a statute as a necessary predicate to the second step – consideration of pertinent legislative history that a party may proffer. Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute’s text, where that legislative history appears useful to the court’s analysis. However, the extent of the court’s consideration of that history, and the evaluative weight that the court gives it, is for the court to determine. The third, and final step, of the interpretative methodology is unchanged. If the legislature’s intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.”

346 Or at 171-72. 22

Oregon Evidence § 803.01, 777 (6th ed 2013) (emphasis added). The import of that wording is that hearsay evidence that meets an exception contained in

OEC 803 is not admissible if a different provision of law (aside from OEC 802) excludes it. In other words, the purpose of OEC 803 is to simply list exceptions to which OEC 802 does not apply, it does not create automatic admission. That suggests that hearsay that meets the business records exception – thought not barred by OEC 802 – may still be prohibited by another provision, such as OEC

803(8)(b).

Also at the first level of analysis, the legislature has indicated that the more specific statute should control over the general. See ORS 174.020(2)

(“When a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent.”). At least with respect to law enforcement reports offered against a criminal defendant, OEC 803(6) and OEC

803(8)(b) conflict. Because OEC 803(8)(b) clearly excludes law enforcement reports when those reports are offered against a criminal defendant, and OEC

803(6), in turn, more generally exempts business records from OEC 802, the former must control over the latter. The only way to interpret the two provisions consistently is to conclude that law enforcement reports are not admissible against a criminal defendant, even if those reports meet the business records exception. See State v. Guzek, 322 Or 245, 268, 906 P2d 272 (1995) 23

(explaining that “when one statute deals with a subject in general terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, while giving effect to a consistent legislative policy.”).

2. The relevant provisions of OEC 803 were based on the federal rules of evidence, and federal courts have held that the government cannot make an end-run around FRE 803(8) by seeking to have law enforcement reports admitted against a criminal defendant under FRE 803(6).

The Oregon Evidence Code, including OEC 803, was enacted as HB

2030 in 1981. Or Laws 1981, ch 892, § 64. As proposed, OEC 803 was identical to its federal counterpart except for the omission of subsections (1) and (18) (relating to present sense impression and learned treatises).

Legislative Commentary to OEC 803, reprinted in Kirkpatrick, Oregon

Evidence at 777. Because OEC 803(6) and OEC 803(8) are materially indistinguishable7 from their federal counterparts, this court can look to federal cases in construing the Oregon analogs. State v. Moen, 309 Or 45, 58-60, 786

P2d 111 (1990) (so doing with OEC 803(4)); see also U of O Co-Op v. Dept of

Rev, 273 Or 539, 544, 542 P2d 900 (1975) (“When an Oregon statute has been

7 The current versions of FRE 803(6) and (8) are set out in full at App-1. 24 copied from federal law this court will adopt the interpretation given the federal act by the federal courts.”).

One of the first cases to address, exhaustively, the interplay between FRE

803(6) and FRE 803(8) was United States v. Oates, 560 F2d 45 (2nd Cir 1977).

In Oates, the government sought to introduce two laboratory reports confirming that the substance seized from the defendant was heroin. Id. 63. The government argued that the reports should be admitted under the business records exception, FRE 803(6). Id. at 64.

The Second Circuit began by recognizing that FRE 803 (like OEC 803) was drafted as exemptions from Rule 802, rather than in positive terms of admissibility. Id. at 66. The legislative history of that choice demonstrated a

“clear intention to draft the rules in such a way as to eliminate, if possible, any tension between the hearsay rule as embodied in * * * the Federal Rules of

Evidence and the confrontation clause.” Id. The Oates court noted that the most “emphatic expression” of the desire to avoid that conflict was found in

FRE 803(8), which prohibited the admission of law enforcement and evaluative reports against criminal defendants. Id.

The Second Circuit examined the voluminous legislative history surrounding the enactment of FRE 803 and noted that the intent of Congress

“could not have been articulated with any more clarity than it was by

Representative William L. Hungate,” who was the Chairman of the House 25

Judiciary Subcommittee on Criminal Justice. Id. at 69. He explained that the committee had rejected proposed amendments that would have permitted admission of police reports authored by officers unavailable to testify. Id. at 70.

Hungate went on to explain:

“As the rules of evidence now stand, police and law enforcement reports are not admissible against defendants in criminal cases. This is made quite clear by rule 803(8)(B) and (C).”

Id. (quoting 120 Cong Rec H12254 (daily ed Dec 18, 1974)). After examining additional legislative history in more detail, the Oates court concluded,

“We thus think it manifest that it was the clear intention of Congress to make evaluative and law enforcement reports absolutely inadmissible against defendants in criminal cases. Just as importantly, it must have been the unquestionable belief of Congress that the language of FRE 803 (8)(B) and (C) accomplished that very result.”

Id. at 73.

Next, the court attempted to ascertain the legislative intent behind the business records exception, FRE 803(6), and the potential conflict between that rule and FRE 803(8). The court once again looked to legislative history and concluded that the only way to reconcile FRE 803(6) with the clear intention of

Congress to make law enforcement reports inadmissible against a criminal defendant “is to interpret FRE 803(6) and the other hearsay exceptions in such a way that police and evaluative reports not satisfying the standards of FRE 26

803(8)(B) and (C) may not qualify for admission under FRE 803(6) or any other exceptions to the hearsay rule.” Id. at 77.

The Oates court also noted that that conclusion – FRE 803(6) must be read in conjunction with FRE 803(8)(B) and (C) – was consistent with

Congress’s articulated purpose behind the narrow drafting of FRE 803 in general, and FRE 803(8) in particular. Id. at 78.

“Specifically, the pervasive fear of the draftsmen and of Congress that interference with an accused’s right to confrontation would occur was the reason why in criminal cases evaluative reports of government agencies and law enforcement reports were expressly denied the benefit to which they might otherwise be entitled under FRE 803 (8). It follows that this explanation of the reason for the special treatment of evaluative and law enforcement reports under FRE 803(8) applies with equal force to the treatment of such reports under any of the other exceptions to the hearsay rule. The prosecutor’s utilization of any hearsay exception to achieve admission of evaluative and law enforcement reports would serve to deprive the accused of the opportunity to confront his accusers as effective as would reliance on a ‘public records’ exception.”

Id. at 78 (emphasis added). Therefore, the Oates court reiterated, law enforcement reports cannot satisfy any hearsay exception if those reports are sought to be admitted against a criminal defendant. Id. at 83-84.

Notably, the Oates decision predated Oregon’s enactment of OEC 803.

And this court has noted that when the Oregon legislature borrows a statute from another jurisdiction, “there is a presumption that that the legislature borrowed the controlling case law interpreting the statute along with it.”

Lindell v. Kalugin, 353 Or 338, 355, 297 P3d 1266 (2013). Of course, the 27

Second Circuit Court of Appeals is not the highest federal court and its decision is therefore not “controlling case law,” but it is nevertheless persuasive when this court seeks to discern the Oregon legislature’s intent behind OEC

803(8). See id. (looking to federal court of appeals case law in absence of

United States Supreme Court interpretation of analogous federal statute, and noting that those decisions were “at least highly persuasive as to the intentions of the Oregon Legislature in borrowing from the federal rules”).

Since Oates, other federal circuits have reached the same conclusion –

FRE 803(6) cannot be used as a “back door” to introduce evidence that would not be admissible under FRE 803(8). See, e.g., United States v. Cain, 615 F2d

380 (5th Cir 1980) (“For the reasons set forth in Oates, we conclude that statements inadmissible as public agency reports under Rule 803(8) may not be received merely because they satisfy Rule 803(6) and that section (6) does not open a back door for evidence excluded by section (8).”); United States v.

Orellano-Blanco, 294 F3d 1143 (9th Cir 2002) (rejecting admission of immigration document under FRE 803(6) and recognizing that district courts should admit law enforcement reports, if at all, under FRE 803(8)); United

States v. Brown, 9 F3d 907 (11th Cir 1993), cert den, 513 US 852 (1994) (“Rule

803(6) cannot be used as a back door to admit evidence excluded by Rule

803(8)(B)”). 28

Legal commentators have likewise affirmed that evidence excluded under Rule 803(8) should not be admitted under Rule 803(6):

“The breadth of Rule 803(6) overlaps the hearsay exception for public records contained in Rule 803(8). Where a conflict exists, a public record not meeting the requirements of the more specific rule, in particular Rule 803(8)(A)(ii) and (iii), should not ordinarily be admitted under Rule 803(6), although such public record may be admissible under another hearsay exception such as Rule 803(5), Rule 803(1), or Rule 807. Any other construction would frustrate the intent of Congress with respect to limitations on admissibility imposed in Rule 803(8)(ii) and (iii).”

Charles Alan Wright and Arthur Miller, Federal Practice and Procedure,

§7047, at 190 (3rd ed. 2011) (footnotes omitted) (emphasis in original);

Kirkpatrick, Oregon Evidence at 813 (recognizing that “[r]ecords expressly excluded by Rule 803(8), such as police reports offered against a criminal defendant in a criminal case, are generally inadmissible under Rule 803(6)”).

What the foregoing authorities demonstrate, then, is that the state cannot rely on OEC 803(6) when it is seeking to admit a law enforcement report against a criminal defendant. See United States v. Sims, 617 F2d 1371, 1377

(9th Cir 1980) (“[T]he plain language of Rule 803(8) makes it abundantly clear that it is the rule which covers reports made by law enforcement personnel[.]”)

(emphasis added). OEC 803(6) cannot provide an independent path to admissibility.

Here, the state offered OEC 803(6) as an alternative basis for affirmance.

The state argued that the business records exception would have permitted it to 29 introduce evidence contained in a transcript of detectives interviewing a sexual assault victim for law enforcement purposes. That law enforcement report did not meet the requirements of the public records exception, OEC

803(8), and in fact was specifically excluded by it.8 The state could not rely on

8 Some federal circuit courts have recognized a limited exception to FRE 803(8)’s bar on the admissibility of law enforcement reports against criminal defendants. Those circuits exclude from FRE 803(8)’s general prohibition “records of routine, nonadversarial matters” such as when a customs inspector automatically records the license plates of all vehicles coming across the border. See United States v. Orozco, 590 F2d 789, 793 (9th Cir), cert den, 442 US 920 (1979) (so providing). The reason for this “nonadversarial” exception is because, according to those courts, that type of routine matter is not what Rule 803(8) was designed to exclude; rather, the reason for Rule 803(8)’s ban on police report admission is,

“that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.”

S.Rep. No. 1277, 93d Cong., 2d Sess., quoted in Orozco, 590 F2d at 793.

To the extent that the state may argue that the transcript at issue here is not excluded by OEC 803(8)(b) because it is a routine, nonadversarial matter, defendant disagrees for several reasons. …footnote continued… 30

OEC 803(6) to get around that bar. The Court of Appeals conclusion that the transcript was admissible under OEC 803(6) was in error.

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.

A. A reviewing court cannot affirm on an alternative basis

First, by its plain terms, OEC 803(8)(b) bars admission of all law enforcement reports against criminal defendants and the provision contains no exceptions. This court should reject the reasoning of those courts that have inserted an exclusion that is completely absent from the text of the rule. As the Oates court recognized, Rule 803(8) was drafted “to serve as a filter to screen out evidence which might be suspect in the event of a constitutional challenge on confrontation grounds.” Oates, 560 F2d at 79 (emphasis added). In other words, the rule was designed to be prophylactic; it was not made to operate only when there was an actual conflict with the Confrontation Clause. Therefore, OEC 803(8)(b) should be construed to prohibit admission of all law enforcement reports against a criminal defendant, without exception.

Even if this court concludes that OEC 803(8)(b) contains an exception for routine, nonadversarial matters, the transcript at issue here does not satisfy that exception. It was a written transcript of an interview conducted by two police detectives with a crime victim; the purpose of the interview was undoubtedly investigatory in nature. The person who transcribed the recording was an employee of the same law enforcement agency and this court cannot say that transcribing an investigatory police interview is not adversarial.

Finally, to the extent that there are any further questions about the role of the transcriber, then defendant notes that the record could have developed differently in that regard if the state had relied on OEC 803(6) below. See Part III, below (discussion of Outdoor Media and requirement that record development would have been the same if the state had relied on the business records exception at trial). That is, defendant could have adduced evidence concerning who transcribed the recording, that person’s role at the sheriff’s office, and that person’s relationship to the detectives conducting the interview. 31

if the factual record could have developed differently had the prevailing party relied on the alternative basis below. In the trial court, the state argued only that the transcript of the pertinent exchange was admissible as a past recollection recorded, OEC 803(5). The state then disavowed that theory on appeal and instead contended that the transcript was admissible as a business record, OEC 803(6). That argument is an alternative basis for affirmance and must meet the requirements of Outdoor

Media.

In Outdoor Media, 331 Or at 659, this court held that the “right for the wrong reason” doctrine permits an appellate court to affirm a lower court on an alternative basis if certain conditions are met. If the issue presented is not purely one of law, then the evidentiary record must be sufficient be support the alternative basis:

“That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance.”

Id. at 659-60 (emphasis in original). 32

This court has addressed the third requirement – that the factual record necessarily be the same as would have been created under the alternative basis – in several cases. For example, in State v. Nascimento, 360 Or 28, 379 P3d 484

(2016), the defendant was convicted of computer crime for using a computer at work to print and steal lottery tickets. In the trial court, despite some conflicting evidence, the state conceded that the defendant had authority from her supervisor to use the computer terminal. The state argued instead that her actions were “unauthorized,” as required by the statute, because she was using the computer to commit theft. Id. at 36-37.

In this court and as an alternative basis for affirmance, the state changed its position and argued that the defendant did not actually have authority from her supervisor to use the work computer and pointed to the conflicting evidence adduced at trial. Id. at 36. This court rejected that argument because, had the state raised that argument below (rather than disclaiming reliance on it), the factual record could have developed differently. Id. at 37.

“The evidence on which the state now relies for affirmance on that ground was equivocal and weak, at best. Had the state relied on it in opposition to a motion for judgment of acquittal rather than disavowing it as the basis for its legal argument, defendant easily could have countered that evidence in her own case-in-chief, as there appears to have been no shortage of witnesses who would have confirmed that defendant was, in fact, trained by her supervisor to use the lottery terminal to print lottery tickets and was expected to do so as part of her job.” Id. 33

Likewise, in State v. Burgess, 352 Or 499, 501, 287 P3d 1093 (2012), the state charged the defendant with assault and proceeded solely on the theory that the defendant aided and abetted his co-defendant’s assault of the victim with steel-toed boots. The defendant was convicted and challenged the sufficiency of the evidence on appeal. The state argued in this court that even if the evidence was insufficient to convict the defendant as an accomplice, there was sufficient evidence for the jury to find him guilty as a principal for using the “muddy ground” as a deadly weapon, notwithstanding the fact that the state had never suggested that theory of liability below. Id. at 503.

This court held that because the defendant had no reason to challenge the factual contentions necessary to a finding of principal liability in the trial court, it would be “fundamentally unfair” to sustain his conviction on that basis. Id. at

504. Moreover, the third condition articulated in Outdoor Media was not satisfied: “Specifically, it is highly likely that defendant would have developed the record differently if defendant had had actual notice that the state was pursuing principal liability against him on the theory that the ‘muddy ground’ was a dangerous weapon[.]” Id. at 507.

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. Here, as in Nascimento and Burgess, the third requirement from Outdoor

Media was not satisfied. That is, this court cannot say that the record is 34 necessarily the same as would have been created if the state had relied on the business records exception below.

OEC 803(6) specifies that the trial court may exclude a record that otherwise meets the requirements of the exception if “the source of information or the method o[r] circumstances of preparation indicate a lack of trustworthiness.”9 The hearsay exception relied upon in the trial court, the prior

9 Again, OEC 803(6), the business records exception, provides:

“(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method o[r] circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

recollection recorded exception, has no similar explicit inquiry into the trustworthiness of the document.10

Defendant therefore lacked the same motivation below to make a record demonstrating that the transcript lacked trustworthiness. If the state had relied on OEC 803(6) in the trial court, defendant could have questioned Detective

Clinton about the process for investigating reports of child sexual abuse in the state; the lack of any follow-up on C’s report of abuse at a babysitter’s house, in

Oregon, when she was young; the likelihood that a claim of child sexual abuse would be, essentially, ignored by detectives at the time it is made; how often

Clinton found inaccuracies when reviewing transcriptions of his own interviews; and the likelihood that he would forget hearing a child’s report of being sexually abused at a babysitter’s house when she was little. In short, defendant could have elicited further testimony that the transcription lacked sufficient trustworthiness and that it therefore should be excluded from his trial.

But, because the state did not rely on OEC 803(6) below, he did not do so.

10 The prior recorded recollection exception, OEC 803(5), provides:

“(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the memory of the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.” 36

The Court of Appeals rejected defendant’s argument that the factual record would have developed differently by pointing to a colloquy between the trial court and defendant, on his own behalf and without the assistance of his attorney, in which defendant asserted that the transcript was “planted” evidence.

Edmonds, 285 Or App at 867-68. The Court of Appeals concluded that that is the same record that would have been developed if the state had relied on OEC

803(6) below and defense counsel had the impetus to develop a record and argue to the trial court that the trustworthiness of the transcript was questionable. That conclusion is not only belied by the record, which defendant sets out more fully below, but it is also at odds with significant role that constitutionally-mandated counsel plays in a criminal trial.

During the pretrial hearing on the admissibility of the transcript, the prosecutor asked the court to “have the defendant refrain from his outbursts.”

Tr 37. In response, the trial court admonished defendant to “just listen politely and professionally[.]” Tr 38. Defendant responded,

“I really, really want to make—to talk about this issue, because for eight months—

“THE COURT: You can’t.

“THE DEFENDANT: —I asked—

“THE COURT: You talk to [defense counsel] about it.

“THE DEFENDANT: It’s just a question of evidence.

“THE COURT: Now is not the time anyway for you to talk even—

“THE DEFENDANT: I can’t ever—

“THE COURT: I can only talk to one person at a time. We don’t talk to two. It’s not the Jerry Springer show. We don’t let everybody talk. I’m not sitting around the kitchen table. You don’t get to be heard until he’s done. Okay? * * *”

Tr 38-39.

The prosecutor, defense counsel, and the trial court continued to discuss the admissibility of the transcript under the prior recollection recorded exception. Tr 39-51. Defense counsel then informed the court that

“[defendant] has been chomping at the bit,” and that defense counsel needed “to find out if there is anything else he wants me to say.” Tr 51. After a brief discussion off the record, defense counsel told the court that “[defendant]’s argument” is that there was “some sort of Brady violation,” because he did not receive the transcript or police reports involving C’s stepfather in a timely manner. Tr 52. The trial court responded that that argument did not make sense because defendant did receive the reports, and defense counsel responded,

“I’m not entirely sure I understand either, Your Honor. [Defendant] is expressing frustration. He’s saying suppressed evidence. I’m filtering that through my knowledge of the law and trying to articulate it in a legal fashion.”

Tr 53.

The trial court then spoke with defendant: 38

“THE COURT: So you asked for it over and over again and you asked for it as much as eight months.

“THE DEFENDANT: And I was told it was unavailable, that there was none.

“THE COURT: And there turned out to be some.

“THE DEFENDANT: So finally when my attorney—

“THE COURT: But how are you prejudiced by that here now?

“THE DEFENDANT: Because listen, Your Honor, if they had anything—

“THE COURT: How were you hurt by it is another way of asking that question? “THE DEFENDANT: What I’m trying to say is—listen if—

“THE COURT: How were you hurt by it?

“THE DEFENDANT: If this had something good in it for the DA’s office, for the prosecutor’s office, the prosecutor would have brought forth that evidence a long time ago.

“THE COURT: That doesn’t answer it. How were you hurt by it?

“THE DEFENDANT: I’m hurt by it because I believe that those four lines that are in there are planted in there. That’s not an original transcript. I believe—for one thing, Your Honor, detective (tape indiscernible) who told—who bothers to even ask a person, listen, have you ever been touched in a way you didn’t like? And she said yeah, a babysitter when I was really, really, really young. A detective is not just going to go, oh, is that in Oregon? The detective is going to go, who was that babysitter?

“I believe that it is—that it just came all of a sudden and all of a sudden it’s good for the district attorney. If the district attorney had looked at this a long time ago—the fact that she was abused by 39

[her stepfather] was in my discovery. The district attorney would have looked at this evidence a long time ago.

“THE COURT: Well, I’m going to overrule your objection and—on that basis, [defendant], you’re speculating. There is nothing to support your speculation. And if we made rulings around speculation we would not accomplish a just result.”

Tr 53-55.

As the transcript demonstrates, an appellate court cannot say that that record would necessarily be the same one developed by trained counsel if the trial court was tasked with assessing the admissibility of the transcript under the business records exception. As discussed previously, defense counsel could have developed a record with the precise goal of demonstrating that the transcript lacked trustworthiness. That was not accomplished by defendant making a vague Brady violation claim and “speculating” that the “four lines” in the transcript were “planted,” especially after he had already been admonished to stay quiet and was informed by both the court and his own attorney that they did not understand his objection. There is reason that both the state and federal constitutions guarantee a criminal defendant the right to counsel and that courts

“indulge in every reasonable presumption against waiver of the right to counsel.” State v. Meyrick, 313 Or 125, 136, 831 P2d 666 (1992). The right to counsel plays a critical role in the adversarial system and the Court of Appeals failed to recognize that fact. See Strickland v. Washington, 466 US 668, 685,

104 S Ct 2052, 80 L Ed 2d 674 (1984) (access to counsel’s skill and knowledge 40 is necessary to give defendants opportunity to meet the prosecution’s case).

The Court of Appeals conclusion that the record actually developed below was the same record that would have been developed if the state had relied on the business records exception is simply incorrect.11

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. Again, the business records exception vests the trial court with discretion to exclude the document, even if it otherwise meets the requirements of a business record, if the court has concerns about its trustworthiness. Similar language appeared in the former version of the statute, ORS 41.690, and was

11 It is defendant’s primary contention that, when the prevailing party raises an alternative basis for affirmance on appeal, the losing party is not required to have preserved any legal responses to that new ground for affirmance. That is because Outdoor Media requires the reviewing court to determine if the alternative ground for affirmance is actually correct, and to do so it must fully consider the issue. It cannot do that by ignoring legal arguments to the contrary. See Outdoor Media, 331 Or at 660 (“The second condition is that the decision of the lower court must be correct for a reason other than that on which the lower court relied.”); see also Part II.A., above (arguing that the Court of Appeals’ refusal to address, on preservation grounds, defendant’s response to OEC 803(6) was incorrect).

If this court disagrees with that assertion and instead concurs with the Court of Appeals that defendant was required to have preserved his legal response in the trial court to the state’s alternative basis for affirmance, then defendant notes that that is yet another way the record could have developed differently in this case. That is, if the state had raised OEC 803(6), rather than OEC 803(5), the trial court’s decision would not have been controlled by Scally and defendant could have invoked OEC 803(8) as a response. 41 interpreted to grant “the trial court wide discretion in admitting or refusing to admit business records as evidence.” Legislative Commentary to OEC 803, reprinted in Kirkpatrick, Oregon Evidence at 807. Here, defendant not only lacked the same motive to offer evidence attacking the trustworthiness of the transcript, but the trial court never had the opportunity to make a discretionary ruling on the issue.

In State v. Rodriguez-Castillo, 345 Or 39, 188 P3d 268 (2012), this court declined to affirm the admission of hearsay on an alternative ground when that alternative basis ordinarily involves trial court discretion. In that case, the state argued for the first time on appeal that the residual exception to the rule against hearsay, OEC 803(28), would have allowed the admission of the evidence. Id. at 49. Among the discretionary decisions a trial court must make in determining whether to admit hearsay under the residual exception are (1) whether the statement has equivalent circumstantial guarantees of trustworthiness as other hearsay exceptions; (2) whether it is more probative than other available evidence; and (3) whether the interests of justice would be served by its admission. Id. at 49-50. This court noted that other courts to consider the issue have held that a party should not be able to rely on the residual exception for the first time on appeal, and this court concurred:

“Because the state did not argue before the trial court that it was relying on OEC 803(28) as the basis for admitting the detective’s statements, neither defendant nor the state presented any 42

evidence on the criteria set out in that rule. Moreover, the trial court did not have an opportunity to rule on the criteria that OEC 803(28) directs it to consider. It follows that we are not in a position to rule as a matter of law that the detective’s statements were admissible under OEC 803(28).”

Id. at 51 (emphasis added).

Here, as in Rodriguez-Castillo, the trial court never had the chance to make the discretionary decision to which it was entrusted. The trial court missed the opportunity to exercise its “wide discretion” to determine whether the transcript lacked trustworthiness and was therefore inadmissible as a business record. For that reason as well, this court should decline to affirm on the state’s proffered alternative ground.

IV. The erroneous admission of C’s 2002 statement to detectives was not harmless.

A ruling by the trial court must be both erroneous and prejudicial to warrant reversal. An appellate court may affirm despite the error only if it determines that there is “little likelihood that the error affected the verdict.”

State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987); OEC 103; Or Const, Art

VII (Amended), § 3.

The error here was not harmless. The case against defendant rested almost entirely on a 20-year-old memory acquired by someone at an age in which memories are not considered particularly reliable. See Tr 522 (testimony 43 that memories acquired at the age of five or younger “are usually less reliable memories”). There was no corroborating physical evidence, yet there was testimony that physical evidence would have been expected under the circumstances. Tr 540. Not a single witness testified to noticing any physical abnormalities or behavioral changes around the time of the incident. App Br at

5-13 (statement of facts).

When C was young, she was also living with a man who sexually abused her and was eventually convicted of a sex crime. Tr 582-83. And a clinical psychologist testified to the ease with which memories can be distorted. Tr

504.

Against that backdrop, C’s statement to detectives in 2002 that she had been abused by a babysitter when she was very young was significant. Not only did it provide strong evidence to rebut the defense theory that this was a more recent fabrication, but it was the only evidence that C disclosed what had happened to anyone outside of her family before eventually contacting the police when she was an adult. The state recognized the corroborative power of

C’s 2002 statement to police during closing argument:

“[PROSECUTOR]: When we’re talking about motive and credibility, then look at what her statement was to Detective Clinton and Detective Maurice Delehant. She says to them in a recorded interview when they ask—it’s kind of a side question when they’re investigating the [stepfather] case—has anyone else touched you inappropriately in a way that you didn’t like, words to that effect? And she said yes, my babysitter, but that was really a long, long 44

time ago.

“So in 2002 she’s now still remembering what happened to her at the babysitter’s. Look at the way she expresses it as kind of a dismissive way, yes but it happened to me a really, really long time ago. Doesn’t that corroborate and bolster her credibility when she tells you, I believe my mother had taken care of it and it is something that had happened a long time ago and it was taken care of. Do you think she tells the police who were investigating her about a different sex case, it’s a long, long time ago, it was a babysitter.”

Tr. 630-31.

Because the state’s case against defendant was not overwhelming and the

2002 interview provided the state with significant corroborating evidence, this court cannot conclude that the erroneous admission of C’s statements was unlikely to have affected the verdict. The trial court error in this case warrants reversal.

CONCLUSION

For the above reasons, defendant respectfully asks this court to reverse his rape conviction and remand the matter to the trial court.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ______KRISTIN A. CARVETH OSB #052157 SENIOR DEPUTY PUBLIC DEFENDER [email protected]

Attorneys for Petitioner on Review Kelly Lee Edmonds CERTIFICATE OF COMPLIANCE WITH ORAP 5.05

Brief length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05 and (2) the word-count of this brief is 11,340 words.

Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes.

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Petitioner's Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on May 8, 2018.

I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Petitioner's Brief on the Merits will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFiler) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-Respondent.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ______KRISTIN A. CARVETH OSB #052157 SENIOR DEPUTY PUBLIC DEFENDER [email protected]

Attorneys for Petitioner on Review Kelly Lee Edmonds