State v. Edmonds, 364 Or. 410

Summary

The Oregon Supreme Court held that the limitations in the official-records hearsay exception, OEC 803(8)(b), cannot be circumvented by admitting law-enforcement records under the business-records exception, OEC 803(6). The court also held that the defendant properly raised the OEC 803(8)(b) argument in response to the state's alternative ground for affirmance. Because the trial court improperly admitted a transcript of a police interview, the court reversed the defendant's rape conviction.

Holdings

1. A party is not required to preserve a response to an alternative ground for affirmance that the opposing party raises for the first time on appeal.
2. In a criminal case, law-enforcement records that fall within the exclusion in OEC 803(8)(b) may not be admitted through the more general business-records exception in OEC 803(6). OEC 803(6) does not provide a back door around OEC 803(8)(b).
3. A record satisfies the 'pursuant to duty imposed by law' requirement when a public employee makes observations in the course of carrying out duties assigned by the public office or its rules, so long as those duties are part of carrying out the office's overall legal duties; a specific statutory duty to make the observation is not required.
4. The erroneous admission of the transcript was not harmless because it had more than a little likelihood of affecting the verdict.

Questions Presented

1. Whether defendant was required to preserve an argument under OEC 803(8)(b) when that argument responded to the state's new appellate contention that the transcript was admissible under OEC 803(6).
2. Whether a law-enforcement transcript that falls within the first clause of OEC 803(8)(b) may nevertheless be admitted in a criminal case under the business-records exception in OEC 803(6).
3. Whether the erroneous admission of the transcript was harmless.

Disposition

reversed_and_remanded