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Court of Appeals of Oregon.

STATE OF OREGON, Plaintiff-Respondent, v. RICHARD DEREK TOWNSEND, Defendant-Appellant.


    Decided: March 21, 2018

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.


Defendant appeals a judgment of conviction for possession of a Schedule I controlled substance. On appeal, he challenges the trial court's ruling permitting an officer, who had no memory of his encounter with defendant, to tes-tify from portions of his written report over the objection of defense counsel, asserting that the portions of the written report read at trial were inadmissible hearsay under OEC 803(8) and that their admission violated defendant's right to confrontation under both the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 11, of the Oregon Constitution. In response, the state argues that defendant's argument is foreclosed by our decision in State v. Scally, 92 Or App 149, 758 P2d 365 (1988). We agree with the state that defendant's OEC 803(8) and state constitutional arguments are disposed of by Scally, and we decline defendant's invitation to revisit those aspects of Scally. We write, however, because Scally's federal Confrontation Clause analysis relied on the frame-work set forth in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980). That analytical approach to federal confrontation rights was fundamentally altered in Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004). Consequently, Scally does not answer the ques-tion whether the federal Confrontation Clause—as applied under Crawford—prohibited the officer from reading from his report in this case. We conclude that, on this record, the federal Confrontation Clause was satisfied. Accordingly, we affirm.

The facts are not disputed by the parties. The police encountered defendant during a traffic stop in 2005 and arrested him on an outstanding warrant. Upon book-ing at the station, the police found narcotics on defendant. Defendant was charged with misdemeanor possession of a controlled substance. However, defendant failed to appear multiple times, absconding for a period totaling approxi-mately 11 years. By the time of trial in 2016, the arrest-ing officers remembered the traffic stop of defendant that resulted in his arrest on an outstanding warrant, but they had little to no independent recollection of the interactions at the police station resulting in the discovery of the controlled substance. However, the officers had made written recordings of their knowledge at the time, in the form of their police reports.

Prior to trial, defendant moved to exclude evidence contained in the police reports. The trial court denied the objection and permitted the officers to read from their reports. Defendant was ultimately convicted and now challenges the trial court's evidentiary ruling on appeal. We review a constitutional confrontation challenge to the admission of evidence for errors of law. State v. Moore, 159 Or App 144, 147, 978 P2d 395 (1999), aff'd, 334 Or 328, 49 P3d 785 (2002).

Under the Sixth Amendment, the admission of “testimonial” hearsay without an opportunity for cross-examination violates a defendant's confrontation rights. Crawford, 541 US at 53-54. “ ‘The main and essential purpose of confrontation [under the Sixth Amendment] is to secure for the opponent the opportunity of cross-examination’ ” in order to test the perception, memory, and credibility of the witness. Davis v. Alaska, 415 US 308, 315-16, 94 S Ct 1105, 39 L Ed 2d 347 (1974) (quoting John Henry Wigmore, 5 Evidence § 1395, 123 (3d ed 1940)).

The right to confrontation is “satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities [in the witness's testimony] through cross-examination[.]” State v. Quintero, 110 Or App 247, 254, 823 P2d 981 (1991) (en banc) (quoting United States v. Owens, 484 US 554, 558, 108 S Ct 838, 841, 98 L Ed 2d 951 (1988) (internal quotation marks omitted)). A full and fair opportunity exists when cross-examination can test the witness's “sincerity, memory, ability to perceive and relate, and the factual basis for [the witness's] statements[.]” State v. Fowler, 225 Or App 187, 194, 200 P3d 591, rev den, 346 Or 257 (2009).

Here, it is undisputed that the officers were subject to cross-examination. Defendant argues, however, that their memory loss rendered them available for cross-examination in form only, and did not constitute a full and fair opportunity to test the witness' statements. We disagree. Although the officers lacked a memory of the encounter with defendant, that memory loss did not ren-der their cross-examination constitutionally insignificant. “[T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Kentucky v. Stincer, 482 US 730, 739, 107 S Ct 2658, 2664, 96 L Ed 2d 631 (1987) (quoting Delaware v. Fensterer, 474 US 15, 20, 106 S Ct 292, 294, 88 L Ed 2d 15 (1985)) (original emphasis and internal quotation marks omitted).

Crawford itself seems to foreclose defendant's argument, in noting that:

“[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. *** It is therefore irrelevant that the reliability of some out-of-court statements ‘cannot be replicated, even if the declarant tes-tifies to the same matters in court.’ ”

Crawford, 541 US at 59 n 9 (quoting United States v. Inadi, 475 US 387, 395, 106 S Ct 1121, 89 L Ed 2d 390 (1986)) (internal citations omitted).

Numerous courts have noted that Crawford, despite its rules restricting admission of an absent declarant's testimonial statement, “leaves no room for doubt that the federal confrontation clause is not concerned with the admission of an out-of-court statement where the declarant appears at trial and is cross-examined about that statement.” State v. Fields, 115 Haw 503, 517, 168 P3d 955, 969 (2007); see Robinson v. State, 271 Ga App 584, 587, 610 SE2d 194, 197 (2005) (“Here, because the witnesses were present at trial and testified, Crawford does not apply.”); see also State v. Tester, 179 Vt 627, 631 n 2, 895 A2d 215, 221 n 2 (2006) (“Crawford is inapposite because [the declarant] testified at trial.”); People v. Johnson, 363 Ill App 3d 1060, 1071, 845 NE2d 645, 655 (2005) (“Here, the victim testified at trial and was subject to cross-examination. As such, none of the statements admitted * * * were improper under Crawford.”); Gomez v. State, 183 SW3d 86, 90 (Tex Crim App 2005) (“The fact that [the declarant] testified and was available for Appellant to cross examine her makes Crawford inapplica-ble here.”). We concur with those courts.

Accordingly, defendant had a full and fair opportunity to cross-examine the officers, despite their memory loss, and his confrontation rights under the Sixth Amendment were not violated.



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