State v. Smyth

580 P.2d 559, 34 Or. App. 899, 1978 Ore. App. LEXIS 2616

• Court: Court of Appeals of Oregon
• Decided: June 20, 1978
• Docket: No. 38440, CA 9205
• Status: Published

Opinions

TANZER, J.

Defendant appeals from his conviction of unauthorized use of a vehicle, ORS 164.135, which defendant was found driving in Oregon and which had been reported as stolen from a sales lot in Calgary, Alberta, Canada, almost two years earlier. He was tried twice, the first trial having ended with a hung jury.

At the first trial, an agent of the owner of the lot from which the car disappeared testified that the car had been traded in on a new car purchased from his employer, that prospective purchasers were permitted to drive the car, that as a matter of practice no one would have been authorized to drive it out of Canada, and that as far as he knew defendant had not been authorized to use it. The loss was reported to the owner’s insurer, who paid the loss. An agent of the insurance company testified that his company paid the loss claim, as a result of which the company became owner of the vehicle. He further testified that to the best of his knowledge no one had been authorized to use the automobile, and that he had not seen the automobile until he came to Oregon for the trial. When the jury was unable to reach a verdict, the court declared a mistrial and ordered another trial.

For the second trial, the state made no effort to obtain the presence of the two witnesses. Rather, on the morning of trial, the state offered evidence to show that the employee of the lot was in Calgary, Canada, and the agent of the insurance company who was normally in Canada was on vacation either there or in "the North Woods area of Bemidji, Minnesota.”

The trial court, over defendant’s objection, permitted the state to introduce transcripts of the prior trial testimony of both witnesses. Defendant assigns as error the admission of that evidence, contending that he was denied his right of confrontation of the witnesses under the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Oregon Constitution.

The admissibility of testimony given in a former trial of the same cause by a witness who is unavailable for reason of being outside the nation is permitted by ORS 41.900(8) unless there is a constitutional doctrine otherwise. That statute provides:

"Evidence may be given of the following facts:

"(8) The testimony of a witness, deceased, or out of state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.”

Defendant’s constitutional claim rests on Barber v. Page, 390 US 719, 88 S Ct 1318, 20 L Ed 2d 255 (1968). There the United States Supreme Court acknowledged the long-standing rule embodied in ORS 41.900(8) that the confrontation requirement did not apply where the witness was outside the jurisdiction, i.e., beyond the territorial limits of the court’s authority to compel attendance. The Supreme Court abrogated the rule, however, pursuant to the confrontation clause because the rule is anachronistic in light of recent state and federal legislation which provides means whereby jurisdictions may obtain witnesses from other state and federal American jurisdictions.¹

The constitutional abrogation of the rule, however, is limited to domestic jurisdictions. In the later case of Mancusi v. Stubbs, 408 US 204, 92 S Ct 2308, 33 L Ed 2d 293 (1972), the Supreme Court refused to extend the holding of Barber v. Page to witnesses who are beyond the authority of the court to compel attendance because they are in other nations. The court reasoned that domestic legislation which justifies abrogation of the rule among the states and federal government does not exist internationally. Therefore, the court held, the use of prior testimony of a witness who is in another country is not violative of the confrontation clause of the Sixth Amendment:

"The Uniform Act to secure the attendance of witnesses from without a State, the availability of federal writs of habeas corpus and testificandum, and the established practice of the United States Bureau of Prisons to honor state writs of habeas corpus ad testificandum, all supported the Court’s conclusion in Barber that the State had not met its obligations to make a good-faith effort to obtain the presence of the witness merely by showing that he was beyond the boundaries of the prosecuting State. There have been, however, no corresponding developments in the area of obtaining witnesses between this country and foreign nations. Upon discovering that Holm resided in a foreign nation, the State of Tennessee, so far as this record shows, was powerless to compel his attendance at the second trial, either through its own process or through established procedures depending on the voluntary assistance of another government. Cf. People v. Trunnell, 19 Cal App 3d 567, 96 Cal Rptr 810 (1971). We therefore hold that the predicate of unavailability was sufficiently stronger here than in Barber that a federal habeas court was not warranted in upsetting the determination of the state trial court as to Holm’s unavailability. * * *” Mancusi v. Stubbs, 408 US at 212-13.

The theory of the dissent is precisely that of the dissent in Mancusi v. Stubbs2, which was perforce rejected by the majority and thus has no constitutional substance. The theory has appeal, but we are not free to rewrite either the constitution or the statute.

Because there is no constitutional restriction upon the application of ORS 41.900(8) as it applies to the prior testimony of witnesses who are outside of the country, that statute controls and the transcript of the prior testimony of the two Canadian witnesses was correctly admitted.

Defendant also assigns as error the admission into evidence of Motor Vehicles Division records showing the license plates on the car defendant was found driving to be registered to a different car and owner. Defendant objected because he had requested discovery under ORS 135.815(4)(a) and these documents had not been furnished. The discovery statute was apparently violated, but the court nevertheless overruled the objection with no explanation. Hence we remand pursuant to State v. Addicks, 28 Or App 663, 560 P2d 1095 (1977).

Remanded for further proceedings.

1 "* * * It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that 'it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.’ 5 Wigmore, Evidence § 1404 (3d ed 1940).

"Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law.

"* * * In this case the state authorities made no effort to avail themselves of either of the above alternative means of seeking to secure Woods’ presence at petitioner’s trial. * * *” (Footnotes omitted.) Barber v. Page, 390 US 719, 723-24, 88 S Ct 1318, 20 L Ed 2d 255, 259-60 (1968).

2 "* * * as the Court contends, it is more difficult to produce at trial a resident of Sweden than a federal prisoner, that fact might justify a failure to produce the witness; it cannot justify a failure even to try. * * *” Mancusi v. Stubbs, 408 US at 223 (dissent of Marshall, J.).