Background
Mohammad Shafi Zieg was convicted of fourth-degree assault constituting domestic violence after an altercation with his wife, T. Before trial, the state sought to admit T’s statements during a 9-1-1 call because it had been unable to subpoena her. The state documented extensive efforts to locate and serve T, including repeated visits to her apartment, telephone calls, emails, inquiries at other addresses, record searches, and conversations with neighbors and apartment management.
The trial court declared T unavailable and admitted the call, in which she said that Zieg had hit her repeatedly. Officers testified that T was crying and had facial bruising and redness, a forehead scrape, and scratches on her back. Zieg maintained that he had acted in self-defense, but the jury convicted him of fourth-degree assault.
The Court’s Holding
The Court of Appeals rejected Zieg’s challenges to the denial of his motion for judgment of acquittal. His argument that the state failed to prove physical injury was not preserved, and any error was not plain because the evidence concerning T’s injuries was open to competing interpretations. The 9-1-1 call, the officers’ observations, and Zieg’s statements also permitted a rational jury to find beyond a reasonable doubt that he had not acted in self-defense.
The court nevertheless reversed because T was not constitutionally unavailable for purposes of admitting her hearsay statements. The trial court expressly found that leaving contact information with neighbors and conducting a stakeout were reasonable, available measures that officers had not taken. Under Article I, section 11, of the Oregon Constitution, the state must exhaust all reasonably available, nonfutile measures to produce a witness. The trial court therefore could not find T unavailable while also finding that reasonable measures remained unused.
Key Takeaways
- The state must exhaust all reasonably available, nonfutile measures to secure a witness before relying on the witness’s hearsay statements.
- A court cannot declare a witness unavailable merely because the state undertook many efforts if it finds that other reasonable measures remained available.
- A motion for judgment of acquittal must identify the specific theory on which the state’s proof is allegedly insufficient.
Why It Matters
The decision underscores Oregon’s demanding constitutional standard for admitting hearsay from an absent witness. The inquiry is not whether the state made substantial efforts or whether additional measures were likely to succeed, but whether it exhausted every reasonably available measure that was not futile.
It also highlights the significance of precise trial-court findings. Once the trial court characterized two untried methods as reasonable and available, those findings foreclosed its conclusion that the witness was unavailable.