In the Matter of: MARK S. CLARK, Respondent, v. STATE OF OREGON, Appellant.

SUPREME COURT OF APPEALS

March 6, 2008, Filed

PRIOR HISTORY: Appeal from Court of Oregon Appeals Docket No.: 217 Ore. App. 475. Date filed: 01/23/2008.

DISPOSITION: Reversed.

COUNSEL: For Appellant: Lauren McElroy, Walla Walla, WA.

For Respondent: Rhea Edelman, Walla Walla, WA.

JUSTICE Elizabeth M. Sher delivered the opinion of the Court, with whom CHIEF JUSTICE HANSON joins.

I. FACTS OF THE CASE.

Mark S. Clark killed his periodic girlfriend, for which he was put on trial. At the trial, he pled guilty to manslaughter but at the trial, a friend of the victim, Pennington, also testified that the victim told her several nights before the killing, right in front of Clark that “if he couldn’t have her then nobody else was going to. He was going to kill her.” Clark was clearly listening to these words but said nothing. The State argued that this should be adopted as a statement of guilt by the defendant, and the trial court found Clark guilty of murder; however, this ruling was reversed by the Court of Appeals. The State of Oregon is now appealing the decision of the Court of Appeals, arguing that the overruling of the trial court’s decision was in error and the original decision should be reinstated.

II. ARGUMENTS

I. Admission of the statement of Pennington as evidence was not prejudicial.

In the jury trial, the Court ruled that Pennington’s statement could be admitted and heard in the Court. This statement was important evidence in the trial because it served as an explicit example of the defendant making a rash threat on the victim’s life. Pennington’s testimony crucially shows to the court that before the murder, the victim told her close friend, in the presence of and without response from the defendant, that the latter had threatened to kill her. His silence while the victim told her friend that he had threatened her life showed the jury that he made no effort to refute accusations of intended murder. Presumably, the average person, if accused of intended murder, would not respond in this manner.

Furthermore, this statement was not prejudicial, because its presentation during the trial explained to the jury no more than what it meant: that such a conversation had taken place before the murder and that the defendant did not respond to the accusation. The jury was presented with the facts of the case, including the nature of the defendant and victim’s relationship, the role of the tavern in their relationship, as well as the events of the night of the murder. The jury also heard the testimony of Pennington, as well as that of Ames and Newton. These testimonies presented the Court with statements made within the couple’s relationship, and essentially served to illuminate the tumultuous, violent and unstable nature of the relationship. These statements were not prejudicial but crucially showed the court the violent nature of the victim and defendant’s relationship, particularly the threats made by the defendant regarding the victim.

Moreover, the defense council also had ample opportunity to defend Pennington’s testimony. As stated by the Appellant:

The jury was never misled about the nature of Pennington’s statements or told that they were fact. The jury understood the context of the statements: that they were made in a private conversation in a bar, and not under police questioning. The jury understood that the defendant had not definitely admitted to guilt by the statements of Pennington due to the nature of the debate about this topic in the courtroom as well as the way the statements were presented. (Appellant Brief, McElroy, p. 7).

The jury was not blindly subject to Pennington’s testimony without rebuttal or opposing testimony. The defense council could have brought the defendant to the stand to explain his rationale behind remaining silent while listening to the victim and Pennington. Both sides had the opportunity to present their cases, defend testimonies and give alternative explanations to educate and influence the jury. The jury had the opportunity to hear both sides and disregard Pennington’s statement if they so desired. Allowing Pennington’s statement in the Courtroom did not prejudicially “establish that the appellant acted with intent and is thus guilty of murder” (Respondent Brief, Edelman, p. 6). This was up to the reasonable judgment of the jury.

I. In this case, silence does constitute adoption of a statement and should be allowed into court.

Previous rulings within the state of Oregon are not absolute in the determination of when silence constitutes adoption of a statement. The decision of Carlson illustrates how silence both can and cannot constitute the adoption of a statement. The Appellant argues that:

State v. Carlson, 311 OR201, 207, 808 (1991), Oregon State’s leading case on adopted admissions, allows for the possibly that a listening presence could constitute an adopted admission. In Carlson, the Court ruled that ‘a mere listening presence does not indicate that a party has manifested an adoption of or a belief in the truth of another person’s statement.’ However, Carlson does not imply that silence can never indicate an adoption of a statement (Appellant Brief, McElroy, p. 3).

While in some situations, an individual’s listening presence and decision to remain silent does not equate their adoption of the statement, it could in other circumstances. Therefore, the specifics of each individual situation, including what their “listening presence” entailed, as well as the potential reasons behind the individual’s decision to remain silent, must be carefully scrutinized.

In this situation, silence does constitute the adoption of a statement, for several specific reasons. First of all, the conversation between Pennington and the victim, which the defendant overheard, took place at a local tavern that the two frequented quite often. This was a familiar setting, not a location where the defendant would feel uncomfortable defending himself against slanderous statements. Second, the nature of the relationship between the victim and defendant was highly tumultuous and unstable, characterized by often loud and disruptive arguments. As argued by the Appellant:

During trial, the Court heard testimony that the defendant and victim did argue and fight often and loudly in the Grove Tavern. The drama of their relationship often played out at the bar, and there is no evidence that the defendant felt any hesitation or trepidation at arguing or confronting the victim at the bar. Therefore, in this case the probable behavior of the defendant would have been to confront the victim when he heard these incriminatory statements (Appellant Brief, McElroy, p. 6).

Additionally, as previously stated, if the defendant did have reason to remain silent, he was given ample opportunity in front of the jury to explain the reasoning behind his actions.

Finally, we cannot ignore the fact that the defendant was not merely located at a nearby seat to the victim and Pennington during the overheard conversation. It is crucial to note that in fact, he did play an active role in the conversation. When Pennington and the victim moved down several seats, the defendant deliberately followed them by also moving seats. While he did not vocally participate in the conversation, and was not sitting with the two individuals, he did participate by structuring his actions around them and their whereabouts during the conversation. Therefore, we believe in this case, the defendant did in fact play an active role in the conversation, not that of a bystander, and given this and the nature of their verbally abusive history in the bar, the defendant’s silence did constitute adoption of a statement.

II. The state of Oregon must uphold specific criteria for when silence does constitute adoption of a statement and when a mere listening presence constitutes participation in conversation.

This case brings to the Court’s attention the lack of precedent for adoption of a statement in a listening presence situation. In some situations, silence does constitute adoption of a statement, and other times it does not. Furthermore, the factors to determine a “listening presence” are not specified. As Justice Rosenblum states in his dissenting opinion:

This case presents an opportunity to clarify when a criminal defendant’s silence may manifest an adoption, where, as here, defendant heard and understood the accusatory statement, it was the sort of statement that, under the circumstances, a reasonable person would deny, disavow, or, at a minimum, attempt to clarify, and where the statement did not arise during police interrogation after Miranda warnings had been given (p. 9).

We do not want our decision read to mean that any listening presence and silence will be admitted. Therefore, it must be clear what context and criteria will limit potential misinterpretation of a defendant’s decision to remain silent.

The nature of the victim and defendant’s relationship largely suggested that he would not have remained silent to slanderous comments made about him in the bar. Their relationship involved loud, public arguments and verbal fights. The bar was also a place that the couple often frequented, and also somewhere that these fights would take place. Additionally, the victim was accusing the defendant of his intent to kill her. This was not a light accusation, and based on their tumultuous relationship, not a comment that he would fail to respond to in order to defend himself. Finally, Justice Rosenblum states in the dissent that:

The statement should be excluded if it appears that (1) the party did not understand the statement or its significance, (2) the party was prevented from replying by ‘some physical or psychological force,’ (3) the speaker was someone whom the party would be likely to ignore, or (4) in the criminal context, the statement was made by law enforcement officers, or persons acting on their behalf, during custodial interrogation. The circumstances in this case satisfy the requirements for an adopted admission as outlined above (as he cites from Louisell and Mueller, 4 Federal Evidence 424 at 268-69).

In this case, we find it to be an adoption of a statement based on the 1) nature of their relationship, 2) their usual argumentative behavior at that bar, and 3) the ability of the defendant to respond, and the 4) extremity of the accusation.

Furthermore, there is a crucial distinction that needs to be made about what constitutes an active listening presence. As the Respondent states, “In Arpan v. United States, 260 F2D 649 (1958), the Eighth Circuit Court excluded an allegedly adopted statement because at the time the statements were made, the defendant was not active in the conversation and could not be faulted for his failure to interject into the conversation” (Respondent Brief, Edelman, p. 5). However, this case is different, because the defendant did have an active listening presence in the conversation. We find that his listening presence was active because he followed the victim and Pennington as they moved tables throughout the bar. This movement constitutes participation. Certain criteria must also be established for participation in a conversation: 1) the defendant must either be situated with the other individuals having the conversation, or 2) the defendant must display involvement, such as by following the conversationalists.

III. CONCLUSION

The defendant’s failure to respond or defend himself from accusations of murder in a conversation in which he had an active listening presence constitutes the adoption of a statement. Allowing the testimony of Pennington was not prejudicial and this testimony should be allowed in court and from this, it should be up to the jury to decide whether the defendant was guilty of murder or manslaughter. The jury did find the defendant guilty of murder, and so the Court of Appeals ruling is overturned.