State v. Martin

                                        578

     Submitted July 16, 2020, affirmed July 28, petition for review allowed
                       November 24, 2021 (

)
                        See later issue Oregon Reports


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                DEANGELO FRANKLIN MARTIN,
                       Defendant-Appellant.
                 Multnomah County Circuit Court
                     18CR25299, 18CR31500;
                   A169801 (Control), A169803
                                   

     Defendant appeals from a judgment that he violated the conditions of his
probation. On appeal, he argues that the trial court violated his due process
right to confront the witnesses against him by admitting the victim’s out-of-court
statements made during a 9-1-1 call without good cause for why the victim was
not called as a witness during the hearing. In response, the state argues that,
regardless of whether there was good cause for not calling the victim during the
hearing, her statements were admissible because they were excited utterances,
a firmly rooted exception to the hearsay rule. Held: The trial court did not err in
admitting the victim’s statements. When a statement qualifies for a firmly rooted
hearsay exception, its admission does not violate the due process clause because
adversarial testing is not expected to add to its reliability. Accordingly, requiring
good cause for a witness’s unavailability will not meaningfully contribute to the
goal of ensuring reliability.
    Affirmed.



   Shelley D. Russell, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
   Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   KAMINS, J.
   Affirmed.
   James, J., dissenting.
Cite as 

 (2021)                                              579

           KAMINS, J.
         Defendant appeals from a judgment that he violated the conditions of his probation. On appeal, he challenges the trial court’s admission and consideration of out-of-court statements of the victim, who did not testify at the
hearing. Because the statements were admissible pursuant
to a “firmly rooted” hearsay exception, we affirm.
        Defendant was previously convicted of several
domestic violence crimes committed against his girlfriend,
MK. Part of his sentence for those crimes included 36 months
of supervised probation, which included a condition that he
does not contact MK. Despite this condition, defendant went
to MK’s house and chased her down the street as she tried
to evade him. During the chase, MK managed to call 9-1-1
and described what was occurring to the dispatcher.
         The trial court held a hearing to determine whether
defendant violated the conditions of his probation, including the condition that he does not contact MK.1 During that
hearing, the state submitted a recording of the 9-1-1 call
as proof of the violation. The state informed the court that
it was unable to locate MK in time for the hearing, so she
did not testify. Defendant objected to the admission of the
9-1-1 recording, arguing that it violated his right to confront
witnesses under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. The trial
court concluded that the admission of the recording complied
with the requirements to admit an out-of-court statement in
a probation revocation hearing. Defendant challenges that
decision on appeal.
        We review whether the admission of evidence at a
probation revocation hearing violates a defendant’s right to
confront adverse witnesses for errors of law. State v. Harris,

, 

 (2013).
         A defendant is not entitled to “the full panoply of
rights” during a probation revocation hearing that he would
be due during a criminal prosecution. Morrissey v. Brewer,

    1
      Defendant was also charged with a probation violation for failing to report
to his probation officer, which he conceded to the trial court.
580                                                       State v. Martin

, 

, 

 (1972).2
Rather, the probation revocation process is “flexible enough
to consider evidence … that would not be admissible in
an adversary criminal trial.” 

 Because a defendant in
a probation revocation proceeding has already been convicted of a crime, his freedom is not a matter of right, but
rather extended to him as a matter of discretion. Barker v.
Ireland, 

, 

 (1964). As a result, a defendant during a probation revocation hearing has no Sixth
Amendment right to confront witnesses. State v. Gonzalez,

, 

 (2007). Instead, that defendant
has a more limited right under the Due Process Clause “to
confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation).” Morrissey, 

.
         Here, the state contends that there is good cause for
admitting MK’s testimony without confrontation because
it would have been admissible at trial as an excited utterance under OEC 803(2)—a “firmly rooted” exception to the
hearsay rule. See State v. Moen, 

, 

 (1990) (“The excited utterance exception is a firmly
rooted traditional hearsay exception.”). In the state’s view,
the inherent reliability of a statement admissible pursuant
to a firmly rooted exception is sufficient to satisfy the due
process concerns that would otherwise require confrontation. To evaluate that argument, we must examine both the
requirements of due process and the theory of firmly rooted
hearsay exceptions.
         The fundamental requirement of the Due Process
Clause “is the opportunity to be heard at a meaningful time
and in a meaningful manner.” Mathews v. Eldridge, 

, 

, 

 (1976) (internal quotation marks omitted). In the context of defendant’s right to
confront witnesses, this means a meaningful opportunity
to test the veracity of the evidence via cross examination to
ensure that any revocation of probation is based on “verified

    2
      Although Morrissey was concerned with parole revocation proceedings, the
Supreme Court recognized that the same protections apply to probation revocation proceedings in Gagnon v. Scarpelli, 

, 

, 

 (1973).
Cite as 

 (2021)                             581

facts.” See Morrissey, 

. However, due process
is flexible; the protections it affords are responsive to the
needs of the situation. Jennings v. Rodriguez, 

,
___, 

, 

 (2018). “It requires
minimum procedural safeguards, depending on the nature
of the interests involved and a weighing of costs and benefits in terms of the risks of erroneous decisionmaking in
the generality of cases.” Trujillo v. Pacific Safety Supply,

, 

 (2002), aff’d, 

, 

 (2004). In situations where further procedural safeguards would be expected to add little, if anything, to the reliability of the factfinding process, due process does not require that courts impose them. Id. at 309.
Notably, because due process protections are flexible and
circumstance-dependent, the Supreme Court has explained
that they are not meant to equate to the protections that a
criminal defendant is entitled to under the Sixth Amendment
at trial. Morrissey, 

.
         Consistent with those principles, we outlined a
four-factor balancing test for determining whether “good
cause” exists for denying confrontation during a probation
revocation hearing in State v. Johnson, 

, 

 (2008): “(1) the importance of the evidence
to the court’s finding; (2) the probationer’s opportunity to
refute the evidence; (3) the difficulty and expense of obtaining witnesses; and (4) traditional indicia of reliability borne
by the evidence.” The first two factors assess the strength
of a defendant’s interest in confrontation, which is then
weighed against the state’s good cause for not producing the
declarant, as measured by the second two factors. Harris,

. “If, on balance, the state’s good cause
outweighs the defendant’s interest in confrontation, then
confrontation is not constitutionally required.” 

 Applying
the balancing test in Johnson, we concluded that a probation officer’s sworn affidavit averring that defendant had
failed to comply with the officer’s directives was admissible without confrontation. 

. Although two
factors weighed in defendant’s favor—that the evidence was
important and there was only a “perfunctory showing” as to
why the probation officer was not called as a witness—the
evidence bore substantial earmarks of reliability, concerned
582                                             State v. Martin

only relatively simple matters, and defendant did not meaningfully contest it. 

.

        In Johnson, however, we also left open the question of whether evidence that satisfies a “well-established
exception to the hearsay rule, might, standing alone, satisfy
due-process-based confrontation demands” without a need
for balancing. 

. The concept of firmly rooted
exceptions traces its roots back to the now-defunct framework for evaluating confrontation challenges under the
Sixth Amendment in Ohio v. Roberts, 

, 

, 

 (1980), abrogated by Crawford
v. Washington, 

, 

, 

(2004). Under Roberts, the theory went that there are certain firmly rooted hearsay exceptions that by their nature
are so inherently reliable “that admission of virtually any
evidence within them comports with the substance of the
[Confrontation Clause].” 

 The exception contemplated
by Johnson would thus allow the admission of statements
under the Due Process Clause that, by their nature, are
so inherently reliable that they would satisfy the Sixth
Amendment’s Confrontation Clause at trial.

          Such an exception makes sense. A statement qualifying for a firmly rooted hearsay exception is already considered “so trustworthy that adversarial testing can be
expected to add little to its reliability.” White v. Illinois, 

, 

, 

 (1992). And,
even among firmly rooted exceptions, excited utterances are
a “special breed.” People v. Stanphill, 170 Cal App 4th 61,
81, 87 Cal Rptr 3d 643, 657 (2009). The rationale behind the
excited utterance exception—that statements made under
the stress of an exciting event while the speaker lacks the
presence of mind to act in his or her own self-interest are
especially reliable—has proven so strong that the exception
has existed for over two centuries. White, 

n 8 (the excited utterance exception is “at least two centuries old” but “may date to the late 17th century” and, as of
1992, “is currently recognized … in nearly four-fifths of
the States”). In fact, Wigmore explains, such statements are
likely even better than live testimony because it is not possible to reproduce the same conditions in the courtroom that
Cite as 

 (2021)                            583

give rise to their reliability under the exception. John Henry
Wigmore, 6 Evidence § 1748 (Chadbourn rev 1976) (a statement made under the stress of an exciting event is “better
than is likely to be obtained from the same person upon the
stand”).

          Under these circumstances, the due process concerns
which ordinarily favor confrontation—and thus Johnson
balancing—are not present. If cross examination does not
increase the reliability of a statement admitted pursuant to
a firmly rooted hearsay exception, then, by definition, allowing confrontation would not provide defendant a meaningful
opportunity to test the veracity of the evidence for purposes
of due process. See Morrissey, 

 (due process
requires a meaningful opportunity “to assure that the finding of a parole violation will be based on verified facts”).
Instead, the inimitable circumstances which give rise to the
reliability of the statement in the first place provide defendant the assurances of veracity necessary to satisfy due
process concerns. Moreover, even if some value were still to
be gained by allowing cross examination, the fact remains
that “the Due Process Clause simply does not require the
best method for discovering the truth.” Trujillo, 

 (internal quotation marks omitted). It requires only
“minimum procedural safeguards, adapted to the particular
characteristics of [the situation].” Goldberg v. Kelly, 

, 

, 

 (1970). Accordingly,
we conclude that, when a statement is admitted pursuant
to a hearsay exception with firmly rooted reliability, the
requirements of due process are satisfied.

         Notably, we are far from alone in that conclusion. A
number of other courts have held that the requirements of
due process are automatically satisfied when the statement
at issue is admissible pursuant to a firmly rooted hearsay
exception. United States v. Jones, 

 (2d
Cir 2002); State v. Giovanni P., 155 Conn App 322, 335-36,
110 A3d 442, 452-53 (2015); State v. James, 

 (Me 2002); Bailey v. State, 327 Md 689, 698-99, 

 (1992); Commonwealth v. Durling, 407 Mass
108, 117-18, 

 (1990); State v. Nez, 

, 

 (Ct App 1997); Hampton
584                                                         State v. Martin

v. State, 

 (Okla Crim App 2009); see also
State ex rel. Simpson v. Schwarz, 

, 

 (Ct App 2001) (holding that a statement
admitted pursuant to any of the hearsay exceptions in the
state’s rules of evidence is sufficiently reliable to satisfy the
defendant’s confrontation rights); Stanphill, 170 Cal App 4th
at 81 (statements qualifying for “spontaneous declaration”
exception to hearsay rule are admissible without balancing
because of their inherent reliability).
         Our home circuit is the only federal court of appeals
to have expressly rejected such an exception.3 Valdivia v.
Schwarzenegger, 

 (9th Cir 2010). In Valdivia,
the Ninth Circuit explained that a statement falling within
a firmly rooted hearsay exception is not necessarily admissible because reliability is but one factor to be considered
under the balancing test. 

. The dissent pointed
out that requiring the state to demonstrate good cause for
admitting such evidence without confrontation elevates
a defendant’s rights in a probation revocation proceeding
beyond those of a defendant during a criminal prosecution
where a showing of good cause has never been necessary.

. The majority responded that a defendant in a full
criminal prosecution still retains a number of other rights
that a probation revocation defendant does not, “including
a jury trial, proof beyond a reasonable doubt, application of
the applicable rules of evidence, and Sixth Amendment confrontation rights.” 

.
         We reject the Valdivia majority’s reasoning. Although
the reliability of a statement might appear to be just a single factor in the balancing test, it is the primary focus of a
defendant’s due process confrontation right and the nexus
between all of the factors in the analysis. See Morrissey, 

 (Due process requires “an informal hearing structured to assure that the finding of a parole violation will
be based on verified facts”); Heller v. Doe, 

,

    3
      “[W]e are not bound by decisions of the Ninth Circuit—or any other federal
circuit—even on questions of federal law.” State v. Ward, 

, 

 (2020). Although we consider decisions by all lower federal courts, including
the Ninth Circuit, for their persuasive effect, we employ an independent analysis
to reach our own conclusions. Wolfe v. Brown, 

, 

(2018).
Cite as 

 (2021)                             585

, 

 (1993) (“[T]he Due Process
Clause [protects] the interest of a person subject to governmental action … in the accurate determination of the
matters before the court.”). Indeed, “the purpose of applying
due process protections to probation revocation hearings in
the first place is to vindicate and protect a criminal defendant’s cognizable interest in not having [probation] revoked
because of erroneous information.” People v. Gray, 63 Cal
App 5th 947, 954, 278 Cal Rptr 3d 291, 298 (2021) (recognizing that “[d]ue process is about reliability; the Confrontation
Clause, confrontation”).
         Accordingly, when the unique circumstances surrounding the making of a statement admissible pursuant
to a firmly rooted hearsay exception provide assurances
of reliability in other ways, it does not meaningfully serve
the concerns of due process to subject that statement to
confrontation. Doing so does not provide a defendant with
any more meaningful of an opportunity to test its reliability. See Roberts, 

 (statements admitted pursuant to a firmly rooted hearsay exception are “marked with
such trustworthiness that ‘there is no material departure
from the reason of the general rule.’ ” (quoting Snyder v.
Massachusetts, 

, 

, 

 (1934),
overruled on other grounds, Malloy v. Hogan, 

, 

, 

 (1964))).
         That conclusion is consistent with the Supreme
Court’s admonition that the rights afforded to a defendant
in a probation revocation proceeding under the Due Process
Clause are not equivalent to those of a defendant in a criminal prosecution “in any sense.” Morrissey, 

.
Applying Johnson balancing to statements that qualify for
a firmly rooted hearsay exception would require the state
to demonstrate good cause in every case for the admission
of the statements—something it has never been required to
show under any of the Sixth Amendment’s more rigorous
standards at trial. See Roberts, 

 (statements
admissible without confrontation if offered pursuant to a
firmly rooted hearsay exception); Crawford, 

(statements admissible without confrontation if nontestimonial); see also Davis v. Washington, 

, 827-28

, 

 (2006) (9-1-1 call seeking
586                                                          State v. Martin

aid during an ongoing emergency was nontestimonial and
therefore admissible without confrontation).4
         Against that backdrop, we turn to the case at hand.
Here, the state argues, and defendant does not dispute, that
MK’s statements would be admissible at trial as excited
utterances under OEC 803(2). Because the excited utterance
exception is firmly rooted—and therefore it would not serve
the interests of due process to subject MK’s statements to
confrontation—we conclude that the statements are admissible regardless of the outcome of the balancing test. The
trial court did not err in admitting MK’s statements.
           Affirmed.
           JAMES, J., dissenting.
          In Morrissey v. Brewer, the United States Supreme
Court announced that persons on parole have a Fourteenth
Amendment due process right “to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”

, 

, 

 (1972). That
right was extended to probation in Gagnon v. Scarpelli, 

, 

, 

 (1973). Subsequent
to Morrissey and Gagnon, a plethora of courts have held that
due process confrontation involves “balancing the [releasee’s]
right to confrontation against the Government’s good cause
for denying it.” United States v. Martin, 984 F2d 308, 310
(9th Cir 1993) (brackets in original); see also United States v.
Kindred, 918 F2d 485, 486-87 (5th Cir 1990) (“[C]ourts considering the admissibility of hearsay in revocation proceedings have adopted an approach which balances the parolee’s
interest in confronting a particular witness against the government’s good cause for denying it.”); United States v. Bell,
785 F2d 640, 642 (8th Cir 1986) (“These decisions indicate
that the trial court in a probation-revocation proceeding
must balance the probationer’s right to confront a witness
against the grounds asserted by the government for not
requiring confrontation.”); United States v. Penn, 721 F2d
    4
      In contrast to the result in Johnson, under the current Sixth Amendment
confrontation framework, a probation officer’s affidavit averring that defendant
had failed to comply with the officer’s directives would be a testimonial statement
inadmissible without confrontation.
Cite as 

 (2021)                                     587

762, 764 (11th Cir 1983) (Admission of hearsay must “balance the probationer’s right to confront and cross-examine
witnesses against any good cause asserted by the government for not allowing confrontation”).
        In United States v. Walker, the Ninth Circuit elaborated on factors to consider in conducting the balancing
between a probationer’s right to confront, and the good cause
asserted by the government for not allowing confrontation.
   “The defendant’s right to confrontation is weighed under
   the specific circumstances presented. … In conducting
   the balancing test, the trial court may consider the importance of the evidence to the court’s finding, the releasee’s
   opportunity to refute the evidence, and the consequences
   of the court’s finding. … The trial court might also consider the ‘ “difficulty and expense of procuring witnesses,” ’
   Martin, 984 F2d at 312 (quoting Gagnon, 

   n 5), and the ‘ “traditional indicia of reliability” borne by the
   evidence[.]’ Martin, 984 F2d at 312 (quoting United States v.
   Simmons, 812 F2d 561, 564 (9th Cir 1987)).”

 (9th Cir), cert den, 

 (1997) (citation omitted).
         We first applied the Ninth Circuit’s formulation in
State v. Johnson, noting,
       “In the absence of a more clearly useful standard and
   because the parties have framed their arguments consistently with it, we apply the Ninth Circuit’s balancing test
   to the record in this case to determine whether the admission of the challenged evidence violated defendant’s due
   process right to confrontation. That test has the advantage
   of serving administrative flexibility, one of the primary
   goals of the revocation proceedings jurisprudence; it recognizes that well-established hearsay exceptions play an
   important role by increasing reliability and reducing the
   weight of the probationer’s interest in the balance, and it
   helps ensure that revocation decisions are based on verified
   facts, while at the same time emphasizing the pragmatic
   factor of whether the challenged evidence was seriously
   controverted.”

, 

, rev den, 

(2008).
588                                                State v. Martin

        Ultimately, we used the following four-factor test
derived from Walker:
   “Relevant factors in the balancing process include (1) the
   importance of the evidence to the court’s finding; (2) the
   probationer’s opportunity to refute the evidence; (3) the difficulty and expense of obtaining witnesses; and (4) traditional indicia of reliability borne by the evidence.”
Johnson, 

.
        Two years later, in State v. Wibbens, we formally
adopted those four factors, and the balancing test, as
Oregon’s construction of due process confrontation:
       “In order to determine whether admission of hearsay
   evidence at a probation revocation proceeding violates a
   probationer’s right to confrontation, we have adopted the
   Ninth Circuit’s balancing approach, which weighs the probationer’s interest in confrontation against the government’s good cause for denying it. … The relevant factors
   in that analysis include ‘(1) the importance of the evidence
   to the court’s finding; (2) the probationer’s opportunity to
   refute the evidence; (3) the difficulty and expense of obtaining witnesses; and (4) traditional indicia of reliability borne
   by the evidence.’ ”

, 

 (2010) (citation omitted).
         In this case, the trial court applied the Johnson and
Wibbens four-factor balancing test. Defendant appealed,
and, understandably, argues the four-factor balancing test.
The state, in response, also argues the four-factor balancing
test, but simultaneously invites us to announce that, when
the evidence involved is a firmly rooted hearsay exception,
no balancing is required at all. By my reading, the state
invites us to effectively overrule Johnson and Wibbens, and
the majority accepts the invitation. For the majority, the
four-factor test is really only one factor—traditional indicia of reliability; nothing else matters, and axiomatically,
there is no balancing. Because firmly rooted hearsay exceptions are traditionally reliable, there is no need to consider
the difficulty or expense of obtaining the witness, or the
importance of the evidence, or how admitting the hearsay
will hamstring any meaningful opportunity to refute the
evidence.
Cite as 

 (2021)                                           589

         In so ruling, the majority places Oregon out of step
with the Ninth Circuit on an interpretation of a federal constitutional right. While we certainly can, and sometimes do,
differ from the Ninth Circuit, when the issue is a federal
constitutional right, it should at least give us pause when we
differ from the federal courts. As the Ninth Circuit noted in
rejecting the invitation the majority accepts here:
   “Reliability does not result in automatic admissibility:
   ‘Simply because hearsay evidence bears some indicia of
   reliability does not render it admissible.’ United States v.
   Hall, 

 (9th Cir 2005). Therefore, evidence
   falling under a hearsay exception does not circumvent the
   Comito balancing test.1 It remains a part of it as an ‘indicia
   of reliability,’ and subject to good cause analysis.”

Valdivia v. Schwarzenegger, 

 (9th Cir 2010),
cert den, 

 (2011).

          I agree with the reasoning of Valdivia and would
take the same course for Oregon. The consequence of the
majority is that Johnson and Wibbens balancing is no balancing at all. When a hearsay exception could apply, no matter how critical to the state’s case, and even when the witness is just down the hall in the prosecutor’s office, none of
that will be considered, because no balancing is to be done.
This is, in my view, too narrow a formulation of due process.

         Valdivia recognizes that Due Process confrontation, coming in the context of a probation hearing—where
the prophylactic protections of the Sixth Amendment are
not directly applicable—serves a purpose beyond the simple
search for reliability. The Sixth Amendment’s Confrontation
Clause appears in the context of a criminal defendant’s corresponding right “to have compulsory process for obtaining
witnesses in his favor,” among other rights. Due Process
confrontation is a part of a broader inquiry, and the admission of hearsay is evaluated through a wider lens that combines notions of confrontation with a probationer’s ability to
obtain and present opposing evidence. See Johnson, 

 (considering “the probationer’s opportunity to
   1
       United States v. Comito, 

 (9th Cir 1999).
590                                               State v. Martin

refute the evidence”). As the United States Supreme Court
has noted,
   “The phrase [due process of law] formulates a concept less
   rigid and more fluid than those envisaged in other specific
   and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested
   by an appraisal of the totality of facts in a given case. That
   which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may,
   in other circumstances, and in the light of other considerations, fall short of such denial.”

Cty. of Sacramento v. Lewis, 

, 

,

 (1998) (quoting Betts v. Brady, 

, 

, 

 (1942)) (brackets in Lewis).

         The majority eschews a totality consideration, replacing it with a uniform rule that, by its nature, can never
ensure the case-by-case fairness to which Due Process
aspires. Consider the following hypothetical: a defendant is
on probation, and a condition of her probation is no contact
with her ex-husband. Defendant’s probation officer alleges
a probation violation based on defendant coming to the
ex-husband’s house one evening. To support that allegation,
the state offers the husband’s statement on the night of the
incident, offered to police, and qualifying as an excited utterance under OEC 803(2) that the wife “had come to the house
and they had a fight.” Yet, if husband were to be examined
by opposing counsel, husband would have admitted that
wife came to the house because husband called her and told
her he was going to hurt the children.

         Under the majority, that information would never
come to light, despite the fact that it is critical information
to any court considering a discretionary choice of whether to
revoke probation. The state would offer husband’s singular
hearsay statement and likely obtain a probation revocation
with no balancing of the other factors that might consider
whether cross-examination of husband is required for Due
Process. And this is the crux of why Due Process is more than
just the narrow concern for reliability. Confrontation and
cross-examination are certainly a vehicle to test reliability,
Cite as 

 (2021)                             591

but they also serve to ferret out omission. Sometimes even
when what a witness affirmatively says is reliable, what that
witness has not said alters the context and tells the true
story. Only defendant has the motive to expose the omission.
It is confrontation, not evidentiary reliability, that, in some
instances, provides the “substantial protection against illconsidered revocation” that Due Process demands. Gagnon,

. Accordingly, denying the defendant the
opportunity to do that cannot comport with principles of Due
Process fairness without at least balancing the factors at
play and considering, under a totality of the circumstances,
whether confrontation is necessary under the facts of the
specific case.
        I respectfully dissent.