[DV_listserv] Caselaw update on requirements for "unavailability"

[Domestic Violence issues]

ADMISSION OF HEARSAY STATEMENTS REVERSIBLE ERROR BECAUSE STATE DID NOT

ESTABLISH DECLARANT WAS "UNAVAILABLE"

State v. Simmons, 241 Or App __, __ P3d __ (March 16, 2011) (Linn) (AAG René

Holmes). Police officers responded to a report of a "melee." At the scene, the victim, who had

obviously been assaulted, made statements to the officer identifying defendant as one of the

assailants. When the victim failed to appear at trial, defendant objected to admission of the

victim's statements to the officer. The trial court admitted the statements after it found that

victim was unavailable, because the state had made a good-faith effort to secure the victim's

attendance but had been unable to do so. Held: Reversed. [1] Defendant adequately preserved

his argument that the state had to establish unavailability under Art I, § 11, even though defense

counsel appeared to conflate the requirements of the evidence code and the Oregon Constitution.

[2] The state did not establish that the victim was "unavailable." The state made only "minimal"

efforts to serve the subpoena: twice relying on the victim's expected attendance at court

appearances; made only a "few" telephone calls to the victim's attorney; did not make efforts to

locate the victim's whereabouts until the day before trial; law-enforcement officers did not go to

the victim's last known address or seek information from family members with whom the victim

had previously lived. [3] Erroneously admitting hearsay statements was not harmless error.

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