FILED: April 20, 2005
IN THE COURT OF APPEALS OF THE STATE OF OREGONSTATE OF OREGON,
MALEY MILLS WILLIAM,
Appeal from Circuit Court, Multnomah County.Michael McShane, Judge. Argued and submitted September 8, 2004.
Stephanie Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before Landau, Presiding Judge, and Brewer, Judge, and Arnold, Judge pro tempore.
LANDAU, P. J.
LANDAU, P. J.
"The rule, although sanctioned by constitutional declaration, like all general rules, has its exceptions. It does not apply to such documentary evidence to establish collateral facts, as would be admissible under the rules of the common law in other cases."Id. In State v. Conway, 70 Or App 721, 690 P2d 1128 (1984), rev den, 298 Or 704 (1985), we applied the foregoing exception to the particular variety of public records at issue in the case before us now, that is, Intoxilyzer certifications. In that case, the trial court admitted an Intoxilyzer certification over the defendant's objections. On appeal, the defendant argued that the admission of the documents, without requiring oral testimony from the person who prepared them, violated his confrontation rights protected by Article I, section 11. The state argued that the documents were admissible under the public records exception to the hearsay rule and that the exception did not offend the Oregon Constitution. We agreed with the state, explaining that "there is no question but that the public records exception satisfies the constitution. As the state suggested in its brief, perhaps there is no other hearsay exception with a firmer basis in common law." Conway, 70 Or App at 724. The Oregon Supreme Court revisited the scope of Article I, section 11, in Campbell. The precise issue before the court was the admissibility of hearsay testimony by a three-year-old victim of sexual abuse. Campbell, 299 Or at 647. The court concluded that, although the testimony was subject to an exception to the rule against hearsay, the admission of that testimony foundered on the failure of the state to establish the unavailability of the witness. Id. at 650-52. In the process, the court declared that, although it based its decision on "independent and separate state grounds under Article I, section 11, of the Oregon Constitution," it nevertheless adopted the reasoning of existing United States Supreme Court case law arising under the Sixth Amendment to the federal constitution. Campbell, 299 Or at 647-48. Under that Sixth Amendment jurisprudence, the Oregon Supreme Court explained, the out-of-court statements of a witness who does not testify at trial satisfy a defendant's confrontation rights if the declarant is unavailable and if the out-of-court statements have adequate indicia of reliability. Id. at 648 (citing Ohio v. Roberts, 448 US 56, 66, 100 S Ct 2531, 65 L Ed 2d 597 (1980), overruled on other grounds by Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004)). We are hesitant to read too much into Campbell. Although the court employed broad phrasing in certain passages, it must be recalled that the court nevertheless was addressing a narrow issue--one that did not involve the sort of historical exception that the court itself previously had identified in Saunders and that we invoked in Conway. Certainly, the court gave no hint that it intended Campbell, in effect, to overrule its prior case law identifying the types of hearsay to which the confrontation protections of Article I, section 11, do not apply. That, in any event, is how we have read Campbell in subsequent cases. In State v. Hancock, 111 Or App 92, 825 P2d 648 (1992), aff'd on other grounds, 317 Or 5, 854 P2d 926 (1993), for example, we addressed precisely that issue. After quoting the portion of Campbell that adopted the federal two-part test, we cautioned:
"We believe that that statement must be read in the context of the issues raised in Campbell and does not establish an inflexible unavailability rule under the Oregon Constitution, applicable in every criminal case regardless of the circumstances. For example, the public records exception to the hearsay rule, OEC 803(8), is routinely used to admit hearsay statements contained in reports and documents such as Intoxilyzer inspection certificates. See State v. Conway, 70 Or App 721, 690 P2d 1128 (1984), rev den, 298 Or 704 (1985)."Hancock, 111 Or App at 96 n 2. Meanwhile, the Oregon Supreme Court returned to the scope of Article I, section 11, in State v. Moore, 334 Or 328, 49 P3d 785 (2002). At issue in that case was the admissibility of hearsay statements of a nontestifying witness under the excited utterance exception to the rule against hearsay. The state conceded on appeal that, under Campbell, the statements were inadmissible in the absence of proof of the unavailability of the declarant. The state's argument was that the court should abandon Campbell itself in light of more recent developments in the federal constitutional case law. The court declined the state's invitation. In the process, the court emphasized that the rule that it endorsed in Campbell was consistent with what the framers of the Oregon Constitution would have understood about the scope and effect of Article I, section 11. Moore, 334 Or at 338-39. Again, we hesitate to read the Supreme Court's decision too broadly. As in Campbell, the issue before the court in Moore was narrow. It did not involve the sort of historical exception that is involved in this case and that the court recognized in prior cases such as Saunders and Gladden, in which the court held that "[t]here is nothing to indicate that the framers of our constitution intended thereby to do away with the well-established exceptions to the confrontation rule." Gladden, 201 Or at 177. In fact, the Moore court cited both cases, without suggesting that either was no longer good law. 334 Or at 339-40. We therefore conclude that Conway remains good law. Under Conway, the unavailability requirement that otherwise may apply under Article I, section 11, does not apply in this case, because the framers of the Oregon Constitution would have understood public and official records to have constituted an exception to the confrontation rights guarantee. The trial court did not err in admitting the Intoxilyzer certifications in this case. Defendant argues that, if Article I, section 11, does not require proof of unavailability, the Sixth Amendment does, under the United States Supreme Court's decision in Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004). Defendant acknowledges that he did not advance a Sixth Amendment argument before the trial court, but he urges us to entertain it for the first time on appeal as plain error. We decline defendant's invitation to address the unpreserved federal constitutional argument. Whether documentary evidence such as Intoxilyzer certification amounts to "testimony" for the purposes of federal constitutional analysis is far from plain. See State v. Thackaberry, 194 Or App 511, 516-17, 95 P3d 1142 (2004), rev den, 338 Or 17 (2005) (admissibility of laboratory report in DUII case in light of Crawford is not plain error). Affirmed.