S055691, Opinion — State v. Steen

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Argued and submitted November 4, 2008, decision of Court of Appeals and
judgment of circuit court affirmed April 16, 2009

STATE OF OREGON,
Petitioner on Review,
U.
PATRICK KELLY STEEN,
Respondent on Review.
(CC 03C40531; CA A128423; SC S055691)
206 P3d 614

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CJS, Criminal Law § 1122.

# En Banc

On review from the Court of Appeals .*

Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.

Anne Fujita Munsey, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.

WALTERS, J.

The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

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# WALTERS, J.

In this criminal case, we determine the reviewability
on appeal of defense counsel's deliberate decision at trial not
to object to otherwise excludable hearsay testimony.

Before the Court of Appeals, defendant claimed that
admission of testimonial hearsay, to which he had not
objected at trial, violated his right to confront adverse wit-
nesses under the Sixth Amendment to the United States
Constitution.1 The Court of Appeals concluded, at the first
step of its analysis, that defendant had asserted "an error of
law apparent on the face of the record" that was subject to
appellate review under ORAP 5.45(1).2 However, at the sec-
ond step of its analysis, after considering various factors mil-
itating for and against review, including defense counsel's
trial tactics, the court exercised its discretion to decline
review and affirmed defendant's conviction. State v. Steen,
215 Or App 635, 641-42, 170 P3d 1126 (2007). Although sat-
isfied with that disposition, the state sought review in this
court and asserted that it was aggrieved by the methodology
that the Court of Appeals had followed. See ORS 2.520 (pro-
viding "party aggrieved by a decision of the Court of Appeals
may petition the Supreme Court for review"); State v. Snyder,
337 Or 410, 415-20, 97 P3d 1181 (2004) (concluding that state
may petition for review because of impact on future cases
even if state obtained favorable disposition).

We allowed review to consider the state's contention
that counsel's failure to object at trial precluded the Court of
Appeals from finding error at step one of its analysis, thereby
obviating the need for its exercise of discretion at the second
step. We conclude that, because the record demonstrates that
defense counsel made a deliberate choice not to object to the

1 The Sixth Amendment to the United States Constitution provides, in part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to be con-
fronted with the witnesses against him[.]"

2 ORAP 5.45(1) provides, in part:

"No matter claimed as error will be considered on appeal unless the claimed
error was preserved in the lower court and is assigned as error in the opening
brief in accordance with this rule, provided that the appellate court may con-
sider an error of law apparent on the face of the record."

(Emphasis added.)

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admission of the hearsay testimony, defendant's claim of
error was not subject to appellate review, and the Court of
Appeals should not have conducted an analysis of whether
defendant's claim met the terms of ORAP 5.45(1).

The parties do not dispute the relevant facts. The
state charged defendant with first-degree robbery, first-
degree burglary, and two counts of second-degree assault. At
a pretrial hearing, defendant waived his right to a jury trial,
and the state, the court, and defense counsel all agreed that,
if defendant were guilty of the crimes alleged, then he
"should go to the State Hospital rather than to prison." Cog-
nizant of that potential disposition, the parties agreed to pro-
ceed by having the court conduct a brief bench trial at which
the state would present its case through the testimony of the
officer at the scene. That would permit defendant, who could
not remember what had happened on the night in question,
as defense counsel phrased it, to "hear what the witnesses'
testimony against him would be."

Two people testified at trial: defendant and the offi-
cer who arrested him. The officer testified that, when he
responded to a call from the victim's apartment, he found the
victim, a female, in an agitated state and her clothing ripped.
Defendant was sitting on a couch, and a male, Newton, was
standing over him. When the officer asked Newton to explain
the situation, defendant picked up a wooden dowel and
struck Newton on the side of the head. The officer subdued
defendant and placed him under arrest. The officer testified
that he told Newton to leave the scene and, afterwards spoke
to the victim, who relayed her version of the events that had
led to the summons of the officer.

Without objection by defendant, the officer then tes-
tified to the events as the victim had described them to him.
According to the officer's testimony, the victim awoke in the
middle of the night to loud banging at her apartment door.
When she opened the door, defendant, who was a neighbor,
began to yell and demand marijuana. The victim told defen-
dant that she did not have and could not sell marijuana;
defendant forced his way into the apartment and attacked
the victim with the dowel. Defendant used the dowel to hold
the victim down and bit her more than once. Returning to his

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personal observations, the officer testified that he had seen
several injuries on the victim that were consistent with the
events that she had described to him.

When defendant took the stand, his testimony
diverged from that of the officer. Defendant told the court
that he had been disturbed by noise coming from the victim's
apartment and went over there to complain. The victim beck-
oned him to enter, and although he did not recall what hap-
pened thereafter, he felt certain that he did not strike the vic-
tim or Newton.

The court convicted defendant on all counts, but
determined that, because he was unable to conform his
behavior to the law, he was not legally responsible for his
acts. ORS 161.295.3 The court imposed four consecutive
15-year sentences and committed defendant to the jurisdic-
tion of the Psychiatric Security Review Board.

On appeal to the Court of Appeals, defendant argued
for the first time that the officer's testimony about what the
victim had reported had violated defendant's federal consti-
tutional right to confront and cross-examine the victim.4 The
state argued that the rules of appellate procedure precluded
defendant's argument. ORAP 5.45(1) provides that "no mat-
ter claimed as error will be considered on appeal unless the
claimed error was preserved in the lower court." However,
that rule includes an exception: "the appellate court may con-
sider an error of law apparent on the face of the record."5

3 ORS 161.295 provides, in part:

"A person is guilty except for insanity if, as a result of mental disease or defect
at the time of engaging in criminal conduct, the person lacks substantial capac-
ity either to appreciate the criminality of the conduct or to conform the conduct
to the requirements of the law."

4 On appeal, defendant also asserted that the trial court had erred in imposing
consecutive sentences without making the findings required by ORS 137.123(5).
The Court of Appeals held that assertion to be without merit. Steen, 215 Or App at
637. Defendant does not seek review of that issue.

5 The reference in ORAP 5.45(1) to the "face" of the record traces back to some
of the earliest published rules of this court. See Rule 12 (plain error) of Rules of the
Supreme Court, 100 Or 742, 749 (1921). In earlier times, rather than review the
entire record, the court reviewed a written abstract of the record prepared by the
appellant, which by rule was required to include whatever specific assignments of
error the appellant wanted to raise, along with the parts of the record necessary to
consider them. See generally Redseker v. Wade, 69 Or 153, 159, 138 P 485 (1914)
(discussing former Rules 11 and 12 of the Oregon Supreme Court pertaining to

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Defendant argued that his claim of error was subject to
review pursuant to that exception.

Before analyzing the reviewability of the federal con-
stitutional issue that defendant assigned as error on appeal,
the Court of Appeals, sua sponte, applied the "first-things-
first" doctrine and considered state constitutional and sub-
constitutional issues before addressing the federal constitu-
tional claim. Steen, 215 Or App at 639. Specifically, the Court
of Appeals first considered whether the officer's testimony
plainly violated either the Oregon Evidence Code or the
Oregon Constitution. The court determined that the testi-
mony did not violate the rules of evidence because it was at
least plausible that a trial court could admit the testimony as
an excited utterance under the hearsay exception stated in
OEC 803(2). Steen, 215 Or App at 639. However, the court
determined that an objection premised on the right to
confrontation under Article I, section 11, of the Oregon
Constitution would have been sustained, had it been asserted
at trial, because the record "indisputably demonstrate[d]
that, as a matter of law, the state failed to prove [the victim's]
unavailability."6 Therefore, the court concluded at the first
step of the analysis set forth in Ailes v. Portland Meadows

assignments of error and written abstracts of record). The abstract of record appar-
ently served as the "face" of the record for purposes of the court's review.

Under our current procedures, an appellant no longer prepares a written
abstract of record. Instead, in the notice of appeal, the appellant designates either
all or parts of the trial court proceedings to be included in the record, which is then
transmitted from the trial court to the appellate court. See ORAP 2.05(6) (party is
free to designate in the notice of appeal whatever parts of the proceedings and
exhibits are to be included in the record on appeal); ORAP 2.05(7) (party must spec-
ify in the notice of appeal those points on which the party will rely only if the party
has not designated the entire record of the proceedings as the record on appeal).
The continued reference in ORAP 5.45(1) to the "face" of the record no longer serves
a purpose and is surplus verbiage. Therefore, throughout this opinion, unless we
are quoting the rule in its current form, we refer to the exception as one that
requires an error to be "apparent on the record." The court anticipates that, when
the rules are next amended in the ordinary course, ORAP 5.45(1) will be revised
accordingly.

" Article I, section 11, of the Oregon Constitution provides, in part:

"In all criminal prosecutions, the accused shall have the right to public trial by
an impartial jury in the county in which the offense shall have been committed;
to be heard by himself and counsel; to demand the nature and cause of the
accusation against him, and to have a copy thereof; to meet the witnesses face to
face, and to have compulsory process for obtaining witnesses in his favor * * *. "

(Emphasis added.)

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Inc., 312 Or 376, 381-82, 823 P2d 956 (1991), that defendant
had demonstrated, on appeal, an error of law apparent on the
record. Steen, 215 Or App at 639-40.

The court then proceeded to the second step of the
Ailes analysis and considered various factors in deciding
whether to exercise its discretion to review defendant's claim
of error. Militating against review were the defense strategy
and its possible effect on the state's decision not to call the
victim as a witness. The court explained:

"First, there is a significant chance that, had defendant
objected, the state would have been able to prove its case by
other means. Although * * * the record does not disclose
anything about [the victim's] availability, it is clear that
she was neither a codefendant, an accomplice, nor incapa-
ble. It is quite likely that the state could have obtained her
in-court testimony about the events that transpired before
the officer arrived. Second, the state may very well have
believed that it was unnecessary to do so based on state-
ments made by defendant's attorney during the pretrial
motions hearing."

Id. at 641. The court concluded that it would not review the
unpreserved claim of error and affirmed defendant's convic-
tion. Id. at 641-42.

The state petitioned for review, asking us to rule
that the Court of Appeals had erred in affirming defendant's
conviction at the second, rather than at the first, step of the
Ailes analysis. The state also sought a ruling that the court
had erred in applying the "first-things-first" doctrine to a
claim that had not been asserted at trial. We allowed the
state's petition.

The state first argues that an unpreserved
Confrontation Clause claim of error never can meet
the requirements of the first step of the Ailes analysis and
qualify as error apparent on the record because, when a
defendant does not object to hearsay testimony at trial, the
trial court is entitled to assume that the defendant has
waived his or her right to confront the witness. Alternatively,
the state contends, a defendant who does not object to hear-
say at trial may have chosen for strategic reasons to have the

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hearsay testimony admitted. The state argues that compet-
ing inferences about a defendant's strategy foreclose a
reviewing court from concluding, in that circumstance, that
there is error apparent on the record under ORAP 5.45(1).
We consider each of the state's arguments in turn.

To the state's argument that a defendant who fails to
object at trial necessarily waives his or her right to confron-
tation, defendant responds that the constitutional right of
confrontation cannot be waived by silence; that, absent an
on-the-record waiver, the trial court must assume that the
defendant intends to assert that right; and that, without such
waiver, admission of the declarant's testimony is always
error.

In a few specific instances, the concept of waiver has
figured into this court's preservation analysis. Those
instances involve constitutional rights that a defendant may
assert for the first time on appeal, provided that the defen-
dant has not waived those rights at trial and done so
expressly, on the record.

The first of those rights is the right to jury trial in a
criminal case set forth in Article I, section 11, of the Oregon
Constitution, which this court addressed in State v. Barber,
343 Or 525, 173 P3d 827 (2007).7 In Barber, although the
defendant's lawyer orally had agreed to try the case to the
court on stipulated facts, defendant sought review on appeal,
arguing that his conviction by the court had violated his con-
stitutional right to a trial by jury. Id. at 527-28. Because the
unique wording of Article I, section 11, requires that the
accused's election to waive trial by jury be in writing, and the
record did not reveal that the defendant had executed a writ-
ten jury waiver, this court concluded that the defendant was
entitled to assert his unpreserved claim of error on appeal.
Id. at 530.

7 Article I, section 11, of the Oregon Constitution provides, in part:

"In all criminal prosecutions, the accused shall have the right to public trial by
an impartial jury * * * any accused person, in other than capital cases, and
with the consent of the trial judge, may elect to waive trial by jury and consent
to be tried by the judge of the court alone, such election to be in writing[.]"

(Emphasis added.)

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There are also instances in which, in the absence of a
waiver, a defendant in a criminal case may assert, for the
first time on appeal, the violation of the right to counsel
under the federal and state constitutions. See State v.
Meyrick, 313 Or 125, 831 P2d (1992) (holding that unless
trial court record discloses that unrepresented defendant
knew of right to counsel and intentionally relinquished right,
defendant may assert violation of right to counsel on appeal).
In such cases, a defendant does not relinquish the right to
counsel or the opportunity to raise a violation of that right on
appeal unless the record demonstrates that the defendant
expressly waived the right to counsel and that the waiver
was voluntary, knowing, and intelligent. The reviewing court
will not presume a waiver of the right to counsel from a silent
record. Id. at 132.

In this case, defendant argues that his federal con-
stitutional right of confrontation also is a right that he may
assert on appeal, unless the record discloses that he entered
an express, knowing waiver of that right. Defendant cites
Boykin v. Alabama, 395 US 238, 89 S Ct 1709, 23 L Ed 2d 274
(1969), for that proposition. In Boykin, the United States
Supreme Court held that, when a defendant pleads guilty,
the trial court has a duty to make a record that the defendant
knowingly and voluntarily waived the right to jury trial,
including those attendant rights that the defendant would
be entitled to assert at trial-viz., the right against self-
incrimination and the right to confront witnesses. Id. at 243.
However, the Court did not hold that, when a defendant
asserts the right to a jury trial and obtains its benefits, the
defendant can waive the right to confront witnesses during
the course of that trial only if the defendant does so explicitly
and on the record. The Court has not ruled that the federal
constitution requires, in that circumstance, an on-the-record
waiver of the right to confrontation. See Freytag v.
Commissioner, 501 US 868, 894 n 2, 111 S Ct 2631, 115 L Ed
2d 764 (1991) (Scalia, J., concurring) (citing United States v.
Whitten, 706 F2d 1000, 1018 n 7 (9th Cir 1983), cert den, 465
US 1100 (1984) (declining to review on appeal Confrontation
Clause objection not preserved at trial)); see also Loggins v.
Frey, 786 F2d 364, 367-68 (8th Cir 1986), cert den, 479 US

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842 (noting that, "absent exceptional circumstances, a defen-
dant is bound by the tactical decision[ ] of competent counsel"
not to assert confrontation right).

A trial court typically determines one time, before
trial begins, whether a defendant has made an informed deci-
sion to waive the right to jury trial or counsel. Generally, the
right to confront witnesses is not similarly discrete. At the
outset of trial, a defendant may not know that the state
intends to offer the testimony of a declarant through the tes-
timony of another witness or by use of an exhibit. If the state
offers hearsay evidence during trial, the defendant may wish
to insist on his or her right to cross-examine one declarant,
yet be content to allow the testimony of other declarants to
enter the record by other means. Neither the wording of the
state or federal constitutions, nor existing precedent, pro-
vides that the right to confrontation can be waived only
explicitly on the record-and with ample reason. Such a
requirement would be unduly burdensome and disruptive to
the pace and dynamic process of the typical trial.

We decline to hold that a defendant's silence in the
face of hearsay testimony ipso facto establishes a violation of
the right of confrontation, as defendant urges. But we also
are unwilling to adopt the converse conclusion for which the
state advocates. "A waiver is the intentional relinquishment
or abandonment of a known right or privilege," Meyrick, 313
Or at 132, and must be made "intelligently and knowingly,"
State v. Gullings, 244 Or 173, 182, 416 P2d 311 (1966).
Silence in the face of hearsay evidence does not establish that
a defendant knows of his or her right to confront the declar-
ant or that the defendant intentionally has relinquished that
right. A trial court therefore is not entitled to assume a defen-
dant's waiver of the right of confrontation solely from a defen-
dant's failure to object to hearsay testimony. Thus, in this
case, defendant's failure to object to the officer's testimony
did not, in and of itself, amount to a waiver of his constitu-
tional right of confrontation.

The state's alternative argument is not that a silent
record establishes waiver, but that, by remaining silent, a
defendant "forfeits" the right to appeal an unpreserved claim
of evidentiary error. In this context, forfeiture is defined as

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"[t]he loss of a right, [or] privilege * * * because of a * * *
neglect of duty." Black's Law Dictionary 677 (8th ed 2004).8
The state contends that, by failing to object to excludable evi-
dence at trial, a defendant fails to fulfill the duty of preser-
vation and that the exception to that duty found in ORAP
5.45(1) never can apply to unpreserved evidentiary error.
The state contends that a defendant never can establish the
requirement at step one of the Ailes analysis that the error
asserted be one apparent on the record because a reviewing
court is faced with competing inferences as to whether silence
in the face of otherwise excludable evidence indicates a delib-
erate choice or a potentially prejudicial mistake. In support of
its position, the state cites State v. Gornick, 340 Or 160, 130
P3d 780 (2006) (declining review of unpreserved objection to
decision-making by trial court rather than by jury), and State
v. Perez, 340 Or 310, 318, 131 P3d 168 (2006) (stating that
competing inferences regarding defendant's strategy
entailed the conclusion of no apparent error), in support of its
position.

In the past, this court generally has declined to
review unpreserved evidentiary objections. However, the
court has not adopted the rationale that the state urges, but
instead has assumed the existence of evidentiary error and
declined review as an exercise of its discretion. See, e.g., State
v. Cox, 337 Or 477, 500, 98 P3d 1103 (2004) (assuming, but
not deciding, that admitting hearsay statements was error,
but declining to exercise discretion to reach the issue); State
v. Walton, 311 Or 223, 241, 809 P2d 81 (1991) (declining to

8 Justice Scalia noted the difference between waiver and forfeiture in his con-
curring opinion in Freytag, 501 US at 894-95 n 2 (Scalia, J., concurring):

"The Court uses the term 'waive' instead of 'forfeit,' * * *. The two are really not
the same, although our cases have so often used them interchangeably that it
may be too late to introduce precision. Waiver, the 'intentional relinquishment
or abandonment of a known right or privilege,' Johnson v. Zerbst, [304 US 458,
464, 58 S Ct 1019, 1023, 82 L Ed 1461 (1938)], is merely one means by which a
forfeiture may occur. Some rights may be forfeited by means short of waiver,
see, e.g., Levine v. United States, [362 US 610, 619, 80 S Ct 1038, 4 L Ed 2d 989
(1960)] (right to public trial); United States v. Bascaro, [742 F2d 1335, 1365
(11th Cir 1984) cert den sub nom Hobson v. United States, 472 US 1017)] (right
against double jeopardy); [Whitten, 706 F 2d at 1018 n 7] (right to confront
adverse witnesses) * * * , but others may not, see, e.g., Johnson, supra (right to
counsel); Patton v. United States, [281 US 276, 312, 50 S Ct 253, 74 L Ed 854
(1930)] (right to trial by jury). A right that cannot be waived cannot be forfeited
by other means (at least in the same proceeding), but the converse is not true."

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consider unpreserved Confrontation Clause claim); State v.
King, 307 Or 332, 338, 768 P2d 391 (1989) (declining to con-
sider unpreserved evidentiary claims). In fact, this court has
considered unpreserved evidentiary error to be reviewable on
appeal in at least one case, State v. Bouse, 199 Or 676, 708-
10, 264 P2d 800 (1953), overruled on other grounds by State v.
Fischer, 232 Or 558, 376 P2d 418 (1962) (determining that
trial court committed reversible error when it failed to
exclude on its own motion "extremely prejudicial and * * *
inadmissible" testimony); see also OEC 103(4) (noting that
the rules of evidence do not preclude courts from "taking
notice of plain errors affecting substantial rights although
they were not brought to the attention of the court").

The state presents this case as an appropriate vehi-
cle for us to decide, or reconsider, the methodology that
should be used when a defendant urges evidentiary error on
appeal, but remained silent at trial. However, the record
before us discloses not only that defendant failed to object to
testimonial hearsay when it was presented, but also that
defense counsel stipulated to the procedure that the state
and the trial court followed. In this case, the record does not
present an opportunity for us to address the role that silence
plays in reviewability, because defendant's trial strategy reg-
isters on the record fortissimo.

Defendant testified that he could not remember what
had happened on the night in question, but he also refused to
admit that he had committed the wrongs alleged. Neverthe-
less, defendant's counsel and the state agreed that defen-
dant's mental condition had prevented him from conforming
his behavior to the law and that he should be sentenced to the
state hospital. Therefore, the parties agreed that they would
proceed to that disposition by participating in a brief bench
trial and utilizing the following procedure: The state would
establish defendant's acts through the testimony of the offi-
cer; defendant would not admit that he had committed those
acts, but would gain the benefit of the sentence offered by the
state. At the pretrial motions hearing, defense counsel stated
that he had informed defendant that

"there'll be a trial scheduled where the officer will testify
because one of the things [defendant] is saying is that he

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didn't do anything. And I said if the officer testifies he can
then hear what the witnesses' testimony against him would
be."

Although the record in this case does not disclose that defen-
dant himself knew of his constitutional right to confront the
victim and intentionally relinquished it, it certainly estab-
lishes that counsel for defendant made a strategic decision to
permit the officer's hearsay testimony. Just as an individual
defendant may intentionally relinquish, and thereby waive,
on the record, a constitutional right, so may defense counsel
state, on the record, a deliberate decision to have evidence
admitted that otherwise could be excluded. In both instances,
the defendant is precluded from claiming the benefit of the
exception to the rule of preservation, not by failing to pre-
serve an objection, but by affirmatively establishing that the
procedure the court followed was not objectionable to
defendant.

There is nothing unlawful about the admission of
hearsay evidence, even in a criminal case where the consti-
tution affords a right of confrontation. A lawyer's deliberate
decision not to require that a witness testify in person at trial
may benefit the defendant in many circumstances.9 For
instance, an adverse declarant's testimony may have a more
persuasive effect in person than it would when relayed by a
third party. Or, a defendant may not contest the testimony of
the declarant, and, in that circumstance, defense counsel
may wish to avoid the time and attention that in-person tes-
timony would entail. When the record discloses, as it does
here, that a lawyer for a defendant has made an explicit deci-
sion 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.

The Court of Appeals was presented with a record
that demonstrated that defendant's counsel had chosen the
evidentiary approach to which defendant objected on appeal.

9 If a defendant takes issue with defense counsel's deliberate decisions, post-
conviction proceedings may provide the defendant with a forum to demonstrate
that counsel provided ineffective assistance. See Trujillo v. Maass, 312 Or 431, 434-
35, 822 P2d 703 (1991) (describing requirements necessary to obtain post-convic-
tion relief on basis of ineffective assistance of counsel).

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In that circumstance, the Court of Appeals simply should
have stated that it would not review on appeal the admission
of hearsay evidence to which counsel had assented at trial.
There was no need for the Court of Appeals to analyze
whether the claimed error met the requirements of the excep-
tion to the rule of presentation found in ORAP 5.45(1).10

The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.

10 Because we decide that the Court of Appeals should not have conducted an
analysis of whether the threshold requirements of ORAP 5.45(1) were met, we do
not consider whether its use of the first-things-first methodology was appropriate.