S054330, Opinion — State v. Camarena

28
Argued and submitted September 6, 2007, decision of Court of Appeals affirmed
,January 25, 2008
STATE OF OREGON,
Respondent on Review,
v.
MIGUEL ESPINOZA CAMARENA,
aka Miguel Carnarenaespinoza,
Petitioner on Review.
(CC 030331454; CA Al22282; SC S054330)
176 P3d 380

Cite as 344
CJS, Criminal Law § 1 128.
En Banc
On review from the Court of Appeals.*
Susan Fair Drake, Senior Deputy Public Defender, Salem,
argued the cause for petitioner on review. With her on the
briefs was Peter Gartlan, Chief Defender, Office of Public
Defense Services.
Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause for respondent on review. With her on the
brief were Hardy Myers, Attorney General, and Mary H .
Williams, Solicitor General.
DE MUNIZ, C. J.
The decision of the Court of Appeals is affirmed.
Appeal from Multnomah County Circuit Court, Jean K. Maurer, Judge. 208
Or App 575, 145 P3d 267 (2006).

v. Camarena
DE MUNIZ, C. J.
This is a criminal case involving the Confrontation
Clause of the Sixth Amendment to the United States Consti
tution and its application to statements made by the com
plainant during a 9-1-1 telephone call. In response to an
emergency operator's return call, the complainant indicated
that she had just been assaulted by defendant, her live-in
boyfriend. Defendant was found guilty of fourth-degree fel
ony assault at a trial in which the complainant's recorded
statements from the 9- 1-1 call were introduced into evidence.
Defendant appealed his conviction to the Court of Appeals,
arguing, in part, that use of the recorded 9-1-1 conversation
at trial in lieu of the complainant's live testimony violated
defendant's Sixth Amendment right to confront the wit
nesses against him. Drawing on the United States Supreme
Court's recent resolution of a similar issue in Davis v.
Washington, 547 US 8 13, 126 S Ct 2266, 165 L Ed 2d 224
(2006), the Court of Appeals affirmed defendant's conviction,
concluding that the complainant's initial recorded responses
to the 9-1-1 operator's questions were nontestimonial and,
therefore, did not implicate the Sixth Amendment. State v.
Camarena, 208 Or App 575, 145 P3d 267 (2006). We allowed
defendant's petition for review, and now affirm the Court of
Appeals decision.
The relevant facts are undisputed. On the evening of
March 13, 2003, an emergency operator serving the Gresham
area received a 9-1-1 telephone call. The caller, however,
hung up immediately after the operator answered. The oper
ator promptly called the telephone number from which the
call had originated and engaged in the following exchange:
" [COMPLAINANT] : Hello.
" [9-1-1] : Hi, this is 9-1-1. Somebody called and hung
up. Is there a problem there?
" [COMPLAINANT] · Yeah, my boyfriend hit me but
then he left.
"[9- 1-1] : Where is he at now?
" [COMPLAINANT] : I don't know. He took the car and
he left.

Cite as 344 Or 28
" (9-1-1] : Okay. What kind of car is it?
" [COMPLAINANT] : A Honda Accord. A black one.
"[9-1-1] : Do you know which direction he went?
" [COMPLAINANT] : I don't know.
"(9- 1-1] : What's your address?
"[COMPLAINANT]: 2700 West Powell.
" [9-1-1) : Do you need medical attention?
"(no response)
" [9- 1-1) : Where did he hit you at?
"(COMPLAINANT] : In my eye.
" (9-1-1] : You need medical to look at you?
" [COMPLAINANT]: (inaudible) black and blue. No. I
have a black eye right now though.
" [9-1-1] : He's a white guy, a black guy?
" [COMPLAINANT] : He's Mexican.
" [9-1-1] : What's his name?
" [COMPLAINANT] : Miguel Camarena. He's been
arrested for it before. He's on probation.
"[9-1-1] : And he's now on probation for family vio
lence?
"[COMPLAINANT] : For hitting me, yeah.
" [9-1-1] : Okay.
" [COMPLAINANT]: And I don't want him to go to
j ail . . .
" (9-1-1] : Okay.
" [COMPLAINANT]: . . . 'cause (inaudible) 'cause I
have two kids and I don't want him to go to jail because he's
my only income.
"(9- 1-1] : So in order to get paid, you'd rather have him
go ahead and hit you?
"[COMPLAINANT] : No.

32 State v. Camarena
"[9-1-1]: Okay. He needs to go to jail, okay, and you can
start looking for some other way to support yourself. Don't,
don't fall into this trap, the trap that you can't survive with
out this guy and that gives him the right to do whatever he
wants. That's not true. That's absolutely not true. You do
not deserve to be hit."
The complainant then provided the operator with
defendant's driver's license number and told the operator
that the assault had occurred " [l]ike a minute" before the
complainant had called 9-1-1. Throughout her conversation
with the operator, the complainant cried intermittently and
sounded agitated. The 9-1-1 operator subsequently dis
patched a Gresham police officer to the complainant's apart
ment and the officer documented the complainant's injury
with a series of photographs. The complainant then reiter
ated the events of the evening to the investigating officer.
Five days later, a Gresham police detective con
ducted two follow-up interviews regarding the reported inci
dent, one with defendant at the couple's apartment and the
other with the complainant while she was at work. Defen
dant subsequently was charged with fourth-degree felony
assault. 1
1 ORS 163. 160 provides:
"( 1 ) A person commits the crime of assault in the fourth degree if the
person:
"(a) Intentionally, knowingly or recklessly causes physical injury to
another; or
"(bl With criminal negligence causes physical injury to another by means
of a deadly weapon.
"(2) Assault in the fourth degree is a Class A misdemeanor.
"(3) Notwithstanding subsection (2) of this section, assault in the fourth
degree is a Class C felony if the person commits the crime of assault in the
fourth degree and:
"( a) The person has previously been convicted of assaulting the same
victim;
"(b) The person has previously been convicted at least three times under
this section or under equivalent laws of another jurisdiction and all of the
assaults involved domestic violence, as defined in ORS 135.230; or
"(c) The assault is committed in the immediate presence of, or is witnessed
by, the person's or the victim's minor child or stepchild or a minor child resid
ing within the household of the person or victim.
"(4) For th�i purposes of subsection (3) of this section, an assault is wit
nessed if the assault is seen or directly perceived in any other manner by the
child."

Cite as 344 Or 28 	33
Although the state had served the complainant with
a subpoena to appear as a witness against defendant, she did
not appear at defendant's trial. Defendant then moved to
exclude from evidence all the complainant's recorded 9- 1 - 1
statements and the statements that she later had made to
police officers. Defendant argued, among other things, that to
allow those statements into evidence without defendant hav
ing the opportunity to cross-examine the complainant vio
lated defendant's right to confront the witnesses against him
under the Sixth Amendment to the United States Constitu
tion and Article I , section 1 1 , of the Oregon Constitution.2
The trial court disagreed and allowed the state to present the
challenged statements to the jury.3 Ultimately, defendant
was convicted of fourth-degree felony assault.
On appeal, defendant contended again that, as a
result of the complainant's absence at trial, the evidentiary
use of the complainant's statements violated defendant's con
frontation rights under both state and federal constitutions.
2 The Sixth Amendment to the United States Constitution provides, in part:
"In all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him[.]"
Article I, section 11, ofthe Oregon Constitution provides, in part:
"In all criminal prosecutions, the accused shall have the right * * * to meet
the witnesses face to face, and to have compulsory process for obtaining wit
nesses in his favor[.]"
3 We note that defendant's evidentiary challenges at trial encompassed, among
other things, a blanket obj ection to any evidence from the recorded 9-1-1 telephone
call, as opposed to a narrower objection to specific parts of that call. Conversations,
however, that take place between emergency 9- 1-1 operators and those that call
them for assistance may often contain both admissible and inadmissible state
ments for purposes of the Sixth Amendment's Confrontation Clause. See Davis,
547 US at 828, 126 S Ct at 2277 (conversation that begins as nontestimonial inter
rogation to determine need for emergency assistance can become testimonial once
operator gains necessary information to address emergency, or the emergency
ends). Consequently, we think it is important to remind both bench and bar that, as
a matter of Oregon law,
"[i]t is well established that when evidence is offered as a whole and an objec
tion is made to the evidence as a whole and is overruled, the trial court will
ordinarily not be reversed on appeal if any portion of the offered evidence was
properly admissible, despite the fact that other portions would not have been
admissible had proper objections been made to such portions of the offered
evidence."
State v. Brown, 310 Or 347, 358-59, 800 P2d 259 ( 1990), quoting Sproul v. Fossi,
274 Or 749, 755, 548 P2d 970 ( 1976) (internal citations omitted).

State v. Camarena
The Court of Appeals resolved defendant's state constitu
tional arguments relying on this court's decision in State v.
Cook, 340 Or 530, 135 P3d 260 (2006). The Court of Appeals
concluded that, under Cook, the complainant's statements to
the 9- 1-1 operator constituted "excited utterances," a firmly
rooted hearsay exception under Oregon law. That fact,
according to the Court of Appeals, imbued the complainant's
statements with a particularized guarantee of trustworthi
ness, allowing them to pass constitutional muster under Arti
cle I, section 1 1 . Camarena , 208 Or App at 5 8 1 .
As to defendant's Sixth Amendment arguments, the
Court of Appeals relied on Davis, a Sixth Amendment con
frontation case that involved, in part, statements made to a
9-1-1 operator during an emergency telephone call.4 In con
cluding that the statements in Davis were "non-testimonial,"
and therefore did not implicate the Sixth Amendment, the
United States Supreme Court established a framework for
analyzing statements made in a 9-1-1 context. After soliciting
additional briefing on Davis from the parties, the Court of
Appeals drew heavily on that case to determine whether the
complainant's statements were testimonial for Sixth Amend
ment purposes. According to the Court of Appeals, the ques
tion of whether 9-1-1 statements were testimonial involve a
"totality of the circumstances" analysis under Davis:
"To reiterate: Under Davis, the proper inquiry is
whether the totality of the 'circumstances objectively indi
cat[e] that the primary purpose of the interrogation [was] to
enable police assistance to meet an ongoing emergency.'
[547] US at 822, 126 S Ct at 2273. From the Court's
analysis, we understand that several considerations bear
on that inquiry. First, what is the temporal relationship
between the statements and the events described? That is,
were the events 'actually happening' as the statements
were made, or did the statements recount 'past events' after
'some time' had passed? Second, did the exchange between
the police and the declarant relate, logically and practi
cally, to the immediate identification of, and response to, an
4 Davis is composed of two different Confrontation Clause cases that were con
solidated into a single Supreme Court opinion. The case that accompanies Davis
Hammon v. Indiana, 547 US 813, 126 S Ct 2266, 165 L Ed 2d 224 12006), involved
statements made to law enforcement officers at a crime scene rather than state
ments made to a 9-1-1 operator.

Cite as 344 Or 28 (2008)
emergency-as opposed to investigating past criminal con
duct and developing information for purposes of possible
future prosecution? Third, how 'formal' was the question
ing? Did the questioning take place in a police station, in an
isolated room, or on the phone? Were the declarant's state
ments 'frantic' or 'deliberate'?"
35
Camarena, 208 Or App at 587 (emphases in original). The
Court of Appeals concluded that, by questioning the com
plainant, the 9-1-1 operator intended to determine only
whether an emergency existed and the extent of the com
plainant's need for assistance as a result of that emergency,
particularly medical assistance. Id. at 589. Although the
Court of Appeals observed that the complainant's intent in
answering those questions was unclear, it noted that, under
Davis, the distinction between testimonial and nontestimon
ial statements made during a police interrogation turned dis
positively on the purpose driving the interrogation:
"In all events, under Davis, as noted, the dispositive dis
tinction between testimonial and nontestimonial state
ments made in the course of police interrogations is 'the pri
mary purpose of the interrogation.' "
Id. (emphasis in original; citation omitted).
The Court of Appeals went on to conclude that the
complainant's statements to the 9- 1-1 operator regarding the
complainant's injuries, i.e. , that her boyfriend had hit her
and, in fact, had struck her in the eye, were nontestimonial
and, therefore, the admissibility of those statements were not
prohibited by the Sixth Amendment. Id. at 590. The court
also held that, even if it were to assume that the balance of
complainant's statements to the 9-1 - 1 operator and to the
responding police officers were testimonial, those statements
were either immaterial or cumulative in light of the com
plainant's nontestimonial statements; any error in admitting
them was, therefore, harmless. Id. The Court of Appeals
affirmed the trial court's judgment and, as noted, this court
allowed review to consider the complainant's statements in
light of the Supreme Court's decision in Davis.
This court's paradigm on review is first to consider a
defendant's statutory claims, if any, followed by a defendant's
state constitutional claims and concluding with any federal

36 State v. Camarena
constitutional claims a defendant may have. See Cook, 340
Or at 536 (describing paradigm). For purposes of this case,
we approve without further discussion the Court of Appeals'
analysis and conclusion that the statements contained in the
9-1-1 recording were not admitted in violation of Article I,
section 1 1 , of the Oregon Constitution.5 On review, we focus
on defendant's Sixth Amendment Confrontation Clause
claim because the issue on review is narrow-statements to a
9-1-1 operator-and because the United States Supreme
Court has recently decided a case involving this very issue
and has announced the appropriate analytical framework for
deciding Sixth Amendment confrontation challenges involv
ing statements made to 9-1-1 operators.
On review, defendant begins with a request that this
court create a bright-line rule that any statement made to a
9-1-1 operator is the equivalent of a statement made to a
police officer. Categorizing such operators must necessarily
begin with the statutes that govern their activities. In this
state, the legislature h a s regulated Oregon's emergency
telecommunications systems pursuant to ORS 401. 706 to
401 . 8 16. As part of those provisions, ORS 40 1 .735 defines
"emergency telephone workers" using the definition found in
ORS 243.736(2), which provides:
"As used in this section, 'emergency telephone worker'
means a person whose official focal duties are receiving
information through a 9-1-1 emergency reporting system
under ORS 401 . 7 10 to 401.816, relaying such information
to public or private safety agencies or dispatching emer
gency equipment or personnel in response to such
information."
Because the statute defines 9- 1-1 operators as informational
conduits for both public and private safety agencies, their
As previously noted, the Court of Appeals held that, because the statements
contained in the 9-1-1 recording were admitted below pursuant to OEC 803(2), the
"excited utterance" hearsay exception, the statements did not violate Article I, sec
tion 1 1 , of the Oregon Constitution because their reliability had been established
by the fact that the statements were admitted under a "firmly rooted" hearsay
exception. Camarena, 208 Or App at 581.

3 7
statutory role extends well beyond law enforcement func
tions and the law enforcement sector. In our view, the legis
lature's definition of "emergency telephone worker" effec
tively prevents this court from categorizing, as a matter of
law, all 9-1-1 operators as de facto police officers.
We acknowledge, however, that although 9-1-1 oper
ators may not be police officers per se, their jobs do, at times,
place them in circumstances that require them to act as
police agents for law enforcement purposes. After making a
similar observation in Davis, the Supreme Court considered
it appropriate to assume, without deciding, that, for purposes
of the case before it, the acts of 9-1-1 operators were indeed
acts of police officers. 547 US at 823 n 2, 126 S Ct at 2274
n 2. We find that example instructive, particularly where, as
here, the 9- 1-1 operator responding to the complainant's call
did not dispatch ambulance or fire personnel to the complain
ant's apartment, but sent, instead, a police officer. As a
result, we will assume that the emergency operator in this
case acted as a police agent during the operator's telephone
conversation with the complainant, and that the complain
ant's statements to the operator were made, as a practical
matter, to a law enforcement officer.
With that established, we take up defendant's argu
ment: i.e. , that the complainant's 9-1-1 statements were tes
timonial under the Sixth Amendment, a position that rejects
the Court of Appeals' reading of Davis v. Washington. We
turn now to Davis.
Like this case, Davis began with a 9- 1-1 telephone
call that the caller terminated without speaking to the oper
ator who answered. The emergency operator immediately
dialed the caller's number and the female victim answered.
In response to the operator's questions, the victim indicated
that she was presently being attacked by her boyfriend, the
defendant Davis. The operator asked the victim to stay on the
line while the operator continued gathering information from
her, including, among other things, her attacker's identity.
During that exchange, the defendant ceased his assault and
fled the crime scene. Police officers arrived shortly thereafter
and noted fresh inj uries on the victim's forearms and face.

38 State v. Camarena
The defendant was subsequently charged with fel
ony violation of a domestic no contact order. However, the
victim did not appear at trial to identify the defendant as her
assailant. Over the defendant's Sixth Amendment Confron
tation Clause objection, the trial court admitted the 9- 1-1
recording of the victim's exchange with the emergency oper
ator in order to establish the defendant's role in the attack.
The defendant was subsequently convicted of the charges
against him.
In affirming the trial court's decision to admit the
9-1-1 recording into evidence, the United States Supreme
Court began by identifying the differences that it perceived
between testimonial and nontestimonial statements:
"Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indi
cating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution."
Davis, 547 at 822, 126 S Ct at 2273-74. In a footnote to that
holding, the Court elaborated on the nature of interrogations
and their relationship to the creation of testimonial or non
testimonial statements . The Court emphasized that the Con
frontation Clause ultimately requires decision-makers to
consider a declarant's statements as well as an interrogator's
questions in assessing Confrontation Clause controversies:
"Our holding refers to interrogations because, as
explained below, the statements in the cases presently
before us are the products of interrogations-which in some
circumstances tend to generate testimonial responses. This
is not to imply, however, that statements made in the
absence of any interrogation are necessarily nontestimon
ial. The Framers were no more willing to exempt from
cross-examination volunteered testimony or answers to
open-ended questions than they were to exempt answers to
detailed interrogation. (Part of the evidence against Sir
Walter Raleigh was a letter from Lord Cobham that was
plainly not the result of sustained questioning. Raleigh's

Cite as 344 Or 28
Case , 2 How. St. Tr. 1, 27 ( 1603) .) And of course even when
interrogation exists, it is in the final analysis the declarant's
statements, not the interrogator's questions, that the Con
frontation Clause requires us to evaluate."
Id. at 822-23 n l ; 2274 n 1 (emphasis added).
39
Building on that foundation, the Court went on to
articulate four factors that led it to conclude that the victim's
statements in Davis were nontestimonial. The Court con
cluded that a reasonable listener, evaluating the victim's
statements objectively, would conclude that ( 1 ) the victim
was relating events to the 9-1-1 operator as they actually
happened rather than describing past events; (2) the victim
faced an ongoing emergency in the form of a bona fide physi
cal threat; (3) the statements that the victim made were nec
essary to resolve the present emergency, including state
ments regarding the defendant's identity so that police
officers dispatched to the scene would know whether or not
they faced a violent felon; and (4) the victim's statements
were not made in the safety of a station house or a police offi
cer's presence, but were made "over the phone, in an environ
ment that was not tranquil, or even (as far as any reasonable
9- 1-1 operator could make out) safe." Id. at 827; 2276-77. The
Court concluded that, considered together, those circum
stances objectively indicated that the primary purpose
behind the victim's 9-1-1 interrogation in Davis was to enable
authorities to meet an ongoing emergency.
Here, after comparing the analytical framework set
out in Davis with the one used by the Court of Appeals in this
case, we agree with the outcome reached by the Court of
Appeals , but conclude that although that court arrived at the
correct result, it misapplied the Davis analysis in doing so. In
employing its "totality of the circumstances" approach to
examine the 9-1-1 conversation in this case, the Court of
Appeals focused almost exclusively on the nature of the ques
tions directed at the complainant by the emergency operator.
It held that the statements at issue here were nontestimonial
based on its conclusion that the 9-1-1 operator's
"initial inquiries and her questions concerning the nature
and extent of [the complainant's] injuries were logically and
practically calculated to determine whether an emergency

State v. C amarena
existed and the nature and extent of [the complainant's]
need for immediate assistance."
Camarena, 208 Or App at 589. The complainant's responses,
however, were largely ignored. That was error. As the
Supreme Court made plain in Davis and we now reiterate, "it
is in the final analysis the declarant's statements, not the
interrogator's questions, that the Confrontation Clause
requires us to evaluate." Davis, 547 at 823 n 1 , 126 S Ct at
2274 n 1. As we read Davis, that statement was intended to
emphasize that statements made in situations not amount
ing to "interrogation" may, depending on the circumstances,
nevertheless qualify as testimonial, so that their admission
would violate the Sixth Amendment if the declarant were not
available to testify.
That said, however, focusing on the first part of the
recorded conversation between the complainant and the
9-1-1 operator, we conclude that an objective examination of
those statements requires the same outcome as that reached
by the Court of Appeals.6 As relevant here, those statements
established that ( 1) complainant's boyfriend had hit her and
left the couple's apartment; (2) the attack took place only
moments before the 9- 1-1 operator made contact with the
complainant; (3) the complainant had been hit in the eye; and
(4) the complainant had provided the 9- 1-1 operator with the
address where she could be found.
First, although the relevant portions of complain
ant's 9- 1-1 telephone call clearly describe an attack that had
passed, the call occurred within one minute of the attack, or
j ust after defendant had left the couple's residence. The tem
poral proximity of that assault does not match, exactly, that
of the attack that took place in Davis, but in our view, the
scant 60 seconds that separate them is insufficient to suggest
that the danger of a renewed assault had fully abated. As the
Court of Appeals noted, defendant had j ust left; he could as
easily have returned before the police arrived.
" In the transcript of the 9-1-1 recording in this case, the statements referred to
above are those that begin with the complainant's initial disclosure to the 9-1-1
operator that "my boyfriend hit me but then he left," and continue through her dis
closure of defendant's name.

Cite as 344 Or 28 (2008) 41
Second, a s alluded to above, a reasonable person
could infer from the complainant's responses that she faced
an ongoing emergency. The complainant was shaken and had
sustained an inj ury to her eye. Defendant's exact where
abouts were unknown when the complainant spoke with the
9- 1-1 operator and there was a reasonable likelihood that
defendant might immediately return to their apartment,
given the extremely short period of time between his exit and
the complainant's 9-1-1 telephone call. Third, in light of that
possibility, the complainant's identification of her boyfriend
as her assailant, as well as her location, were both necessary
to help terminate that ongoing emergency. And, fourth, it
was reasonable to infer from complainant's statements that
the environment from which she was calling would be neither
tranquil nor reasonably safe until aid arrived, given the pos
sibility of defendant's return.
Under the criteria established by the Supreme Court
in Davis, we conclude that the complainant's initial 9-1-1
responses, 344 Or at 40 n 6, were nontestimonial and, there
fore, not subject to the confrontation requirements of the
Sixth Amendment. However, the balance of the complain
ant's responses were unnecessary to resolve an ongoing
emergency. Viewed objectively, the remaining questions and
responses were directed at establishing facts only relevant to
a subsequent criminal action. The trial court erred in admit
ting the remainder of the 9-1-1 conversation.
Defendant also argues that the subsequent state
ments made by the complainant to investigating officers fol
lowing the 9-1-1 telephone call were also testimonial and
should not have been admitted at trial in the absence of an
opportunity to cross-examine the complainant. As noted ear
lier, after her assault, the complainant indicated in face-to
face interviews with investigating officers that defendant
had struck her in the eye. On appeal, the state conceded that
those statements were testimonial, but argued that their
inclusion at trial was harmlessly cumulative, given the
admissibility of the complainant's recorded 9-1-1 statements.
The Court of Appeals reached a similar conclusion. We agree
with that assessment. Although the remainder of the com
plainant's 9-1-1 responses and the complainant's subsequent
statements to police officers were testimonial, we conclude

42
that their admission at trial was harmless. That is so because
the 9-1-1 statements that were nontestimonial, and therefore
admissible, were of similar content and sufficient to establish
the elements of the charge against defendant.
The decision of the Court of Appeals is affirmed.