Summary
The Oregon Supreme Court holds that a defendant's unpreserved Confrontation Clause claim is not reviewable on appeal when the record demonstrates that defense counsel deliberately chose to allow otherwise excludable hearsay testimony. The court distinguishes counsel's deliberate evidentiary decision from mere silence and concludes that the Court of Appeals should not have conducted the plain-error analysis under ORAP 5.45(1). The court affirms both the Court of Appeals decision and the circuit court judgment.
Topics
Practice areas
Questions Presented
- Whether a defendant's failure to object to hearsay testimony necessarily waives the federal constitutional right of confrontation.
- Whether a defendant's failure to object to hearsay categorically forfeits appellate review of the resulting evidentiary or Confrontation Clause error under ORAP 5.45(1).
- Whether an explicit, strategic decision by defense counsel to permit otherwise excludable hearsay precludes direct appellate review of the claimed error.
Holdings
- A defendant's failure to object to hearsay testimony does not, by itself, establish waiver of the constitutional right of confrontation. Waiver requires an intentional, knowing relinquishment of the right, and the record cannot presume such waiver solely from silence.
- When the record demonstrates that defense counsel deliberately chose not to object to otherwise excludable hearsay and affirmatively assented to the procedure used at trial, the defendant may not obtain direct appellate review of the admission of that evidence under the error-apparent-on-the-record exception to ORAP 5.45(1).
- The Court of Appeals should not have analyzed whether the claimed hearsay error satisfied ORAP 5.45(1)'s exception because counsel had deliberately assented to the evidentiary procedure; the Court of Appeals decision and circuit court judgment were affirmed.
Key quotations
“Silence in the face of hearsay evidence does not establish that a defendant knows of his or her right to confront the declarant or that the defendant intentionally has relinquished that right.” (at 620)
“When the record discloses, as it does here, that a lawyer for a defendant has made an explicit decision not to make an evidentiary objection that otherwise could have been asserted, reviewing courts will not provide refuge from that deliberate choice on direct appeal.” (at 621)
Factual background
The State charged Steen with first-degree robbery, first-degree burglary, and two counts of second-degree assault. Because Steen could not remember the events and the parties agreed that he should be committed to the state hospital if found guilty, the parties agreed to a brief bench trial in which the State would present its case through the arresting officer. The officer testified about statements the victim had made to him, including that Steen forced his way into her apartment, attacked her with a wooden dowel, held her down, and bit her. Defense counsel did not object and had expressly agreed to the procedure so that Steen could hear the witnesses' account while avoiding an admission of guilt.
Procedural history
Defendant was convicted in circuit court of first-degree robbery, first-degree burglary, and two counts of second-degree assault. The trial court found him guilty except for insanity, imposed consecutive sentences, and committed him to the jurisdiction of the Psychiatric Security Review Board. The Court of Appeals concluded that defendant had established an error apparent on the record but declined to exercise discretion to review it and affirmed. The Oregon Supreme Court affirmed both the Court of Appeals decision and the circuit court judgment, holding that counsel's deliberate assent to the hearsay procedure barred direct appellate review.