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Oregon Supreme Court-- Oct 19, 2017

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by: Msell@mpdlaw.com • October 25, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary A. Sofia, OCDLA

OREGON SUPREME COURT

EVIDENCE

Evidence—Right to Confrontation—Witness Unavailability

Witness’s failure to comply with a subpoena generally insufficient to establish unavailability, but defendant invited error by objecting to allowing the state more time to produce the witness.

The state subpoenaed a witness to testify against defendant, and the witness did not appear for trial. The state offered the witness’s hearsay statements on the grounds that the witness’s failure to appear in response to the subpoena established her unavailability. The defendant contended that the state could not establish that the witness was unavailable unless it had exhausted all reasonable efforts to secure her trial testimony. The trial court offered to continue the trial to allow the state more time to secure the witness, and defendant objected. The trial court then admitted the hearsay evidence. The Court concludes that the witness’s failure to comply with subpoena is insufficient to establish that she is unavailable for purposes of overcoming defendant’s right to confrontation. The state must show that it has exhausted all reasonably available means of producing the witness. But because defendant objected to a continuance that would have allowed the state to pursue other means of securing the witness’s trial testimony, he invited the trial court’s error.

State v. Harris, 362 Or 55 (2017) (Landau, J.)

PCR/HABEAS CORPUS

PCR—Dismissal of Meritless Petition—Appellate Review

Post-conviction court’s ruling dismissing meritless petition without a hearing but with prejudice appealable.

ORS 138.525 governs the dismissal of meritless post-conviction petitions. If a meritless petition is dismissed without a hearing, ORS 138.525(4) requires that the dismissal be “without prejudice.” ORS 138.525(3) provides that a judgment dismissing a meritless petition is not appealable. Here, petitioner/defendant filed a timely pro se petition for post-conviction relief raising four allegations and requesting a hearing. Defendant filed a motion to dismiss the petition for failure to state ultimate facts sufficient to constitute post-conviction claims. Petitioner obtained counsel, but counsel did not request a hearing. Without a hearing, the post-conviction court adopted defendant’s arguments, granted the motion to dismiss, and entered a judgment dismissing the action “with prejudice.” Petitioner appealed, and the Court of Appeals dismissed the appeal under ORS 138.525(3). In view of the text, context, and legislative history of ORS 138.525, the Court concludes that the legislature did not intend to preclude appeal of a post-conviction court’s dismissal of meritless petition with prejudice if petitioner was not afforded counsel and a hearing.

Dillard v. Premo, 362 Or 41 (2017) (Walters, J.)