431
Argued and submitted February 12, 2019, reversed and remanded May 28, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERICK ALEXIS GUTIERREZ,
Defendant-Appellant.
Washington County Circuit Court
16CR72603; A164536
466 P3d 75
Defendant was convicted of one count of harassment, ORS 166.065, based on
having subjected M to offensive physical contact. On appeal, defendant argues
that his confrontation rights under the Sixth Amendment were violated when the
trial court allowed a police officer to testify at trial to certain out-of-court statements by M—who did not testify—to the effect that defendant had “punched” her
and caused her pain of 8 on a scale of 10. When defendant objected to the officer’s
testimony, the state argued that defendant had “opened the door” during cross-examination, and the trial court agreed and overruled defendant’s objection.
Held: The trial court erred in overruling defendant’s confrontation objection and
admitting M’s out-of-court statements. The term “opened the door” is ambiguous,
but, in this context, the court appears to have admitted the testimony under the
general concept of “opening the door,” not the narrower curative admissibility
doctrine, notwithstanding the parties’ arguments on appeal regarding the curative admissibility doctrine. Even if defendant “opened the door” in the general
sense, it was error under the Sixth Amendment to admit the out-of-court statements, and, on this record, the error was not harmless.
Reversed and remanded.
Theodore E. Sims, Judge.
Mark Kimbrell, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Christopher Page, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
432 State v. Gutierrez
AOYAGI, J.
Reversed and remanded.
Cite as 304 Or App 431 (2020) 433
AOYAGI, J.
Defendant was convicted of one count of harassment, ORS 166.065. On appeal, he argues that the trial
court erred in allowing a police officer to testify to certain
out-of-court statements by the victim, who did not testify at
trial, over defendant’s objection that it violated his confrontation rights. The state argues that the trial court properly
admitted the statements under the curative admissibility
doctrine. We agree with defendant that the trial court erred
in admitting the statements and that the error was not
harmless. Accordingly, we reverse and remand.1
FACTS
We first describe the evidence admitted without
objection, to provide context for the evidence to which defendant objected.
Defendant and M were in a relationship and have
two children together. The incident at issue occurred after
defendant and M separated. M and her sister V drove to
defendant’s house to pick up the children. While there,
defendant and M got into a dispute. V called 9-1-1 as she, M,
and the children drove away from defendant’s house. At the
beginning of the call, V told the dispatcher three times that
defendant had “hit” M, but she insisted that M was “fine”
and did not need medical care. Near the end of the call, V
described what happened as defendant having “reache[d]
out to punch [M] in the face.” Officer Hernandez responded
to the 9-1-1 call and, as described more later, spoke with M
and V and, separately, defendant.
Defendant was subsequently charged with felony
fourth-degree assault, constituting domestic violence, ORS
163.160(3), for causing “physical injury” to M in the presence of a child, and harassment, ORS 166.065, for subjecting M to “offensive physical contact.”2 The key issue at trial
1
Given our disposition, we do not reach defendant’s second assignment of
error, which pertains to a jury instruction that may or may not be given if he is
retried, or his third and fourth assignments of error, which pertain to attorney
fees and a no-contact order included in the judgment of conviction.
2
Defendant was also charged with an unrelated third crime, which was
tried to the bench and resulted in an acquittal. Because the third charge has no
bearing on the appeal, we omit it from our discussion.
434 State v. Gutierrez
was whether defendant had hit M during the argument. M
did not appear at trial and was deemed unavailable, so the
state’s only witnesses were V and Hernandez.
V testified under subpoena. Notwithstanding her
statements to the 9-1-1 dispatcher, V denied having seen
defendant hit M. She said that she did not really remember the incident or want to remember it. She testified that
she had “assumed” that defendant hit M, because she saw
his arm “come out” from somewhere, but that she did not
actually see defendant hit M and did not know if he “really
hit” her. During the incident, V was “just scared,” and the
children and M were crying, so it was a “hectic moment.” V
claimed not to remember when M had been crying exactly,
noting that the children were crying too. V also testified
that, although she remembered M saying that “it hurt,” she
did not know what M had meant.
Hernandez testified on direct that, when he
responded to the call, M appeared scared and was upset
and crying. He did not see any “serious injuries” on M,
but he did see red speckles on the left side of her face and
her chin, which he considered a “physical injury.” (Photos
that Hernandez took of M’s face were admitted at trial.)
Hernandez further testified that, at the scene, V told him
that defendant had punched M in the face with a clenched
fist and that M had started crying. Hernandez then went
to speak to defendant, who admitted to arguing with M but
denied hitting her.
On cross-examination, defense counsel asked
Hernandez whether he had observed any indications that M
was in pain on the day of the call, limiting his questions—
with one exception—to Hernandez’s own observations:
“[DEFENSE COUNSEL]: In this case, your report
notes only that you saw a slight redness on [M], correct?
“[HERNANDEZ]: Yes.
“[DEFENSE COUNSEL]: And so if you had noticed
things like wincing in pain, that would be in your report?
“[HERNANDEZ]: Yes.
“[DEFENSE COUNSEL]: Tenderness would have
been in your report?
Cite as 304 Or App 431 (2020) 435
“(No audible response.)
“[DEFENSE COUNSEL]: If she was touching it and
it was tender, or you touched it and she said it was tender,
that would be in your report?
“[HERNANDEZ]: If she told me that, yes.
“[DEFENSE COUNSEL]: Okay. Now, if you had
noticed she had trouble speaking, that would be in your
report?
“[HERNANDEZ]: Yes.
“[DEFENSE COUNSEL]: If she had trouble using her
jaw, that would be in your report?
“[HERNANDEZ]: Yes.
“[DEFENSE COUNSEL]: [T]rouble using her jaw was
not in your report, correct?
“[HERNANDEZ]: Correct.
“[DEFENSE COUNSEL]: Trouble talking was not in
your report, correct?
“[HERNANDEZ]: Correct.”
Defense counsel then asked about Hernandez’s observations
of M ten days later, when he saw her at the grand jury proceedings, eliciting testimony that Hernandez had not noticed
any bruising, swelling, trouble speaking, or trouble smiling
and that he would have put those things in his report if he
had noticed them.
The testimony in dispute occurred on redirect. On
redirect, the prosecutor asked Hernandez whether he had
asked M on the day of the incident about her pain and if she
had responded. Hernandez answered both questions affirmatively. When the prosecutor asked what M had said about
her pain, defendant objected on hearsay grounds. The state
responded that defendant had “opened the door by his questioning of her injuries.” Defendant replied that his “question was specifically about touching it, if it was tender to the
touch.” At the court’s request, the prosecutor re-asked the
question, and the following exchange occurred:
“[PROSECUTOR]: … What was that statement
about the injury in terms of her pain?
436 State v. Gutierrez
“[HERNANDEZ]: She said it was an 8 at the time.
“[DEFENSE COUNSEL]: Again, objection, Your
Honor.
“THE COURT: Statement of present sense impression. Overruled.[3]
“[DEFENSE COUNSEL]: And still a confrontation
issue here, Your Honor.
“[PROSECUTOR]: Your Honor, I believe he’s the one
that opened the door about the injury. His whole point of
cross-examination was that there was no injury that he
observed.
“THE COURT: Agreed. Go ahead.
“[PROSECUTOR]: So what did she say her level of
pain was?
“[HERNANDEZ]: So she said her level of pain, from
a scale of 1 to 10, 1 being no pain, 10 being excruciating
pain, at the time of the incident it was an 8 when she got
punched.
“[PROSECUTOR]: Okay.
“[HERNANDEZ]: And then when I asked her at that
moment, I said, ‘What is your pain now?’ She said it was
still an 8 around her jaw.”
After the close of the state’s case, defendant testified on his own behalf. Defendant admitted that he had
argued with M but denied that he had hit her.
The jury acquitted defendant of fourth-degree
assault but found him guilty of harassment.4 The verdict on
the harassment charge, a Class B misdemeanor, was 10-2.5
Defendant appeals the resulting judgment.
3
Although defendant does not challenge this ruling on appeal, we note that
the trial court may have intended to rule that M’s statement was an “excited
utterance” under OEC 803(2), rather than a “present sense impression,” as
the latter hearsay exception does not exist under Oregon law. See Legislative
Commentary to OEC 803, reprinted in Laird C. Kirkpatrick, Oregon Evidence
§ 803.01[2] (5th ed 2007) at 720-21 (explaining decision not to adopt federal “present sense impression” exception to hearsay rule).
4
Given the combination of verdicts, the jury presumably found that defendant had hit M but not physically injured her.
5
The trial court polled the jury on the record. The poll was 10-2, although
the court misstated it as 11-1. Defendant describes the verdict consistently with
Cite as 304 Or App 431 (2020) 437
ANALYSIS
Defendant contends that the trial court erred in
overruling his objection to Hernandez’s testimony regarding
M’s out-of-court statements about her pain level being an
“8” when she “got punched” and still an “8 around her jaw”
at the time of questioning. Specifically, defendant argues
that allowing that testimony violated his right to confrontation under the Sixth Amendment to the United States
Constitution, even if it was otherwise admissible under a
hearsay exception. (Defendant does not challenge the trial
court’s ruling that the testimony came within a hearsay
exception.) The state responds that no Sixth Amendment
violation occurred because the curative admissibility doctrine permitted the admission of the statements.
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right … to be
confronted with the witnesses against him ….” In Crawford
v. Washington, 541 US 36,
124 S Ct 1354,
158 L Ed 2d 177
(2004), the United States Supreme Court announced a new
interpretation of that constitutional provision, rejecting its
prior interpretation. Under Crawford, if a hearsay statement
admitted against a defendant in a criminal trial is “testimonial” in nature, the Sixth Amendment Confrontation Clause
applies, and admission of the statement is prohibited unless
either (1) the declarant appears at trial, or (2) the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. Davis v. Washington,
547 US 813, 821,
126 S Ct 2266,
165 L Ed 2d 224 (2006).
“Conversely, if a hearsay statement is not ‘testimonial,’ then
the Sixth Amendment Confrontation Clause does not apply.”
State v. Cook,
340 Or 530, 542,
135 P3d 260 (2006). Whether
the admission of a hearsay statement violated the Sixth
Amendment is a question of law. State v. Jackson,
187 Or
App 679, 681,
690 P3d 722 (2003).
Defendant argues that M’s statements to Hernandez
about her pain level were “testimonial” in nature, the state
does not contend otherwise, and we agree that they were.
the poll, and the state does not contest that it was 10-2. Because defendant was
convicted of a Class B misdemeanor, the nonunanimous verdict does not implicate
the Sixth Amendment issue recently decided in Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020).
438 State v. Gutierrez
See State v. Camarena,
344 Or 28, 41-42,
176 P3d 380 (2008)
(complainant’s statement to investigating officers that
the defendant had struck her in the eye was testimonial);
State v. Mendoza-Lazaro,
225 Or App 57, 61,
200 P3d 167
(2008) (domestic violence victim’s statements to police that
her children had witnessed the defendant assault her were
testimonial); State v. Graves,
224 Or App 157, 166,
197 P3d
74 (2008), rev den,
346 Or 213 (2009) (police officer’s questions to domestic violence victim were designed to establish past events relevant to a later prosecution, so the victim’s answers were testimonial). And it is undisputed that,
although M was unavailable at trial, defendant had not had
a prior opportunity to cross-examine her. See Davis,
547 US
at 821 (testimonial hearsay may be admitted without violating the Sixth Amendment if the declarant is unavailable
at trial and the defendant had a prior opportunity to cross-examine her).
That would normally end the Sixth Amendment
analysis, requiring us to conclude that defendant’s Sixth
Amendment right was violated by the admission of M’s out-of-court statements to Hernandez about her pain level. In
this case, however, the state argues that the admission of the
statements did not violate the Sixth Amendment, because
the trial court properly applied the “curative admissibility doctrine” when it ruled that defendant had “opened the
door” during his cross-examination of Hernandez. Under
the curative admissibility doctrine, “where one party offers
inadmissible evidence, which is received, the opponent may
then offer similar facts whose only claim to admission is
that they negative or explain or counterbalance the prior
inadmissible evidence, presumably upon the same fact, subject matter or issue.” Wynn v. Sundquist, 259 Or 125, 136,
485 P2d 1085 (1971).
As a threshold matter, we consider whether the
curative admissibility issue is properly before us. In his
opening brief, defendant preemptively addresses that issue,
describing the state’s successful argument to the trial court
that he “opened the door” as “an apparent reference to the
curative admissibility doctrine” and arguing against that
doctrine’s applicability. In response, the state fully embraces
the notion that the trial court ruled on that basis, asserting
Cite as 304 Or App 431 (2020) 439
in its answering brief, that, during trial, “the state indicated
that it was relying on the curative admissibility doctrine for
the admission of the hearsay statement” (emphasis added);
“[d]efendant did not counter the state’s responsive argument
relying on the curative admissibility doctrine”; and “the
trial court admitted [M’s statements to Hernandez] under
the curative admissibility doctrine.”
It is not at all clear, however, that the trial court
actually relied on the curative admissibility doctrine in ruling on defendant’s objection. The state did not mention that
doctrine in the trial court, saying only that defendant had
“opened the door,” nor did the trial court mention it, saying
only that it “agreed” with the state. On appeal, the state
treats “opened the door” as unambiguous shorthand for the
curative admissibility doctrine. See State v. Walker, 350 Or
540, 550,
258 P3d 1234 (2011) (“Particularly in criminal
cases, in which there is a premium on considerations of cost
and speed, the realities of trial practice may be such that
fairly abbreviated shorthand references suffice to put all on
notice about the nature of a party’s arguments.”). The state
cites no authority for it being unambiguous shorthand, however, and there is reason to believe that it is not.
We recently addressed a similar issue in a case
where the trial court ruled that the defendant had “opened
the door” to certain questions, the parties disagreed on
appeal whether the trial court had meant to invoke the
curative admissibility doctrine, and we concluded that the
trial court was referring to the more general concept of having “opened the door,” not the specific doctrine of curative
admissibility. State v. Apodaca, 291 Or App 268, 274-75,
420 P3d 670 (2018). Also, at least one prominent commentator has described the phrase “opened the door” as
inherently vague: “The courts frequently invoke the vague
expression ‘open[ing] the door,’ resulting in blurring the distinctions between curative admissibility and related doctrines such as specific contradiction impeachment.” Edward
J. Imwinkelried, Clarifying the Curative Admissibility
Doctrine: Using the Principles of Forfeiture and Deterrence to
Shape the Relief for an Opponent’s Evidentiary Misconduct,
76 Fordham L Rev 1295, 1296 (2007).
440 State v. Gutierrez
Context is therefore critical to determine what a
trial court meant in a given situation in ruling that a party
“opened the door” on a particular subject. As explained in
Apodaca, the general concept of “opening the door” applies
whenever one party opens the door on a certain subject
and the other party seeks to counter or impeach that evidence, whereas the curative admissibility doctrine applies
more narrowly to circumstances in which one party elicits
inadmissible testimony and the other party is permitted to
counter it with otherwise inadmissible testimony. 291 Or
App at 274-75.
In this case, as in Apodaca, it appears that the
trial court’s ruling was based on the more general concept
of “opening the door,” not the curative admissibility doctrine on which the state now relies on appeal.6 On appeal,
the state focuses on a single cross-examination question,
when defense counsel asked a follow-up question about
tenderness phrased in such a way that it arguably invited
inadmissible hearsay (although Hernandez did not include
any hearsay in his answer to that question); the state
argues that that question effectively triggered the curative admissibility doctrine. In the trial court, however, the
state’s argument was decidedly broader. When defendant
objected on hearsay grounds, the state responded that he
had “opened the door.” When defendant objected on confrontation grounds, the state reiterated that he had “opened
the door about the injury” and said that “the whole point
of his cross-examination was that there was no injury that
[Hernandez] observed.” (Emphases added.) Thus, at trial, the
state’s response to defendant’s objection was directed at the
issue of M’s injury generally, defendant’s cross-examination
6
As previously noted, in his opening brief, defendant preemptively addresses
the curative admissibility doctrine, describing the state’s successful argument
that defendant had “opened the door” as “an apparent reference to the curative
admissibility doctrine.” Given his phrasing, defendant seems to be speculating,
rather than asserting, that the trial court had the curative admissibility doctrine
in mind. In any event, in reviewing a trial court’s ruling, we must review the ruling that the court actually made (unless we are considering an alternative basis
to affirm, but the state has not presented the curative admissibility doctrine as
an alternative basis to affirm). If the record does not indicate that the trial court
made a ruling on the curative admissibility doctrine in this case, then we would
no more affirm based on the proper application of that doctrine than we would
reverse based on the improper application of it.
Cite as 304 Or App 431 (2020) 441
generally, and what Hernandez had observed (a topic of
admissible evidence)—which is consistent with the general
“opened the door” principle—rather than being premised on
defendant having invited inadmissible hearsay in one specific question.
Given that the trial court “agreed” with the state’s
response to defendant’s objection without further elaboration, we presume that the court ruled on the same ground
that the state responded, rather than sua sponte injecting
the issue of the curative admissibility doctrine. That is, we
presume that the court ruled on defendant’s objection based
on the general “opened the door” doctrine, not the curative
admissibility doctrine.
Having so concluded, we decline to address the
curative admissibility doctrine on a hypothetical basis, particularly when its relationship to the Sixth Amendment is a
matter of first impression in Oregon.7 Some federal circuit
courts have held that, if a criminal defendant’s waiver of
confrontation rights is “clear and intentional,” the trial court
can admit hearsay statements under the curative admissibility doctrine without violating the Sixth Amendment.
E.g., U. S. v. Holmes, 620 F3d 836, 843 (8th Cir 2010); U. S.
v. Lopez-Medina,
596 F3d 716, 733 (10th Cir 2010). Other
circuit courts disagree, however, viewing that approach as
inconsistent with Crawford. For example, the Sixth Circuit
has taken the position that, even if hearsay statements are
admissible “[a]s a matter of modern evidence law” because
a defendant “opened the door” to a subject, that does not
permit their admission over a Sixth Amendment objection:
“If there is one theme that emerges from Crawford, it is that
the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules
7
Relatedly, the state argues on appeal that defendant did not preserve his
claim of error, because, although he objected on confrontation grounds, he did not
expressly address the curative admissibility doctrine after the state “indicated”
that it was relying on it. That is a bold argument, given that the state never
expressly addressed the curative admissibility doctrine either, and it is the state
that now claims to have been relying on it. Moreover, defendant’s reply to the
state’s first “opened the door” assertion—that his “question was specifically about
touching it, if it was tender to the touch”—is more susceptible to interpretation
as referring to the curative admissibility doctrine than what the state said. We
reject the state’s preservation argument without further discussion.
442 State v. Gutierrez
governing the admission of hearsay statements,” so “the
mere fact that [the defendant] may have opened the door
to the testimonial, out-of-court statement that violated his
confrontation right is not sufficient to erase that violation.”
U.S. v. Cromer, 389 F3d 662, 679 (6th Cir 2004); see also U.S.
v. Hinton,
423 F3d 355, 359-60 (3d Cir 2005) (adopting the
reasoning of Cromer).
Neither we nor the Oregon Supreme Court has had
occasion to address the relationship between the curative
admissibility doctrine and the Sixth Amendment, as would
be necessary to resolve that issue in Oregon until such time
as the United States Supreme Court resolves the circuit
split. We came close to the issue once in a pre-Crawford
case—see State v. Renly, 111 Or App 453, 458,
827 P2d 1345
(1992)—but ultimately did not address it because the curative admissibility doctrine was inapplicable in that case in
any event. Consequently, there is no Oregon case, before or
after Crawford, regarding if or when the curative admissibility doctrine may be used to admit hearsay statements that
the Sixth Amendment would otherwise preclude admitting.
Again, we decline to address an issue of first impression, let
alone one that the parties have not briefed,8 when the record
gives no indication that the trial court ruled on defendant’s
objection based on the curative admissibility doctrine.
As for the basis on which the trial court did rule—
the more general impeachment principle of a party having
“opened the door”—the state does not argue on appeal that
that principle of admissibility is sufficient to overcome a
Sixth Amendment Confrontation Clause objection, and we
do not see how it could be under Crawford. We therefore
conclude that the trial court erred in denying defendant’s
objection to the admission of M’s out-of-court statements
to Hernandez regarding her pain level on the day of the
incident.
We also conclude that the error was not harmless.
“Where a violation of a federal constitutional right is at
8
Defendant provides no briefing on the relationship between the curative
admissibility doctrine and the Sixth Amendment—limiting his arguments to
why the doctrine does not apply—and the state’s briefing consists of a footnote
citing two cases.
Cite as 304 Or App 431 (2020) 443
issue, we apply the federal harmless error standard.” State
v. Starr,
269 Or App 97, 110,
344 P3d 100 (2015). Under that
standard, “[a] violation of the Sixth Amendment does not
require reversal ‘if the reviewing court may confidently say,
on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ ”
Id. (quoting Delaware v.
Van Arsdall,
475 US 673, 681,
106 S Ct 1431,
89 L Ed 2d 674
(1986)). Relevant considerations include the importance of
the evidence to the state’s case, whether the evidence was
cumulative, the presence or absence of corroborative or contradictory evidence, and the overall strength of the state’s
case.
Id.
Here, the critical question for the jury with respect
to the harassment charge was whether defendant had actually hit M, i.e., subjected M to “offensive physical contact.”
The erroneously admitted evidence was qualitatively different from the other evidence on that issue. Notwithstanding
the 9-1-1 call, V insisted at trial that she had not actually
seen defendant hit M, that she had merely “assumed” that
he hit her when she saw his arm coming, and that she did
not know what M was referring to when M said that “it
hurt.” The only physical evidence was Hernandez’s photographs of the ambiguous red “speckles” on M’s face. As for
Hernandez’s testimony, prior to redirect, he had testified
only to M’s demeanor, M’s appearance, and V’s statement
to him, whereas, in rebuttal, he revealed M’s statements
to him—statements that could only mean that defendant
had actually “punched” M and, moreover, had done so hard
enough to cause her a pain level of “8” on a scale on which
“10” meant “excruciating pain.”
Given M’s absence from trial, V’s equivocal testimony as the only eyewitness, and the lack of clear physical evidence, Hernandez’s testimony about M’s direct statements to him could well have affected the verdict. That
conclusion is only amplified by the fact that the jury found
defendant guilty of harassment by a narrow 10-2 verdict.
Certainly, we cannot “confidently say” that the error “was
harmless beyond a reasonable doubt.” Starr, 269 Or App at
110.
Reversed and remanded.
