¶1 Rolando Solomon Rodriguez, Appellant, was tried by jury and found guilty of domestic assault and battery with a dangerous weapon, in violation of 21 O.S.2021, § 644(D)(1), in the District Court of Tulsa County, Case No. CF-2023-2719. The jury found Appellant guilty after former conviction of two or more felonies and assessed punishment of twenty years imprisonment. The Honorable Michelle Keely, District Judge, pronounced judgment accordingly. Mr. Rodriguez appeals in the following propositions of error.

1. Mr. Rodriguez' [sic] constitutional right to compulsory process was denied by the trial court in violation of Article II, Section 20 of the Oklahoma Constitution and the Fifth and Sixth Amendments of the United States Constitution;

2. The trial court erred when it determined the hearsay statements of A.L. made to Detective Amy Hall were not admissible;

3. Mr. Rodriguez received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution.

¶2 In Proposition One, Appellant argues that the trial court infringed his right to compulsory process by refusing to grant a mistrial when a witness under subpoena for the defense became unavailable to testify at trial. The defense request for a mistrial preserved the issue for review for abuse of the trial court's discretion. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

¶3 In Proposition Two, Appellant argues that the trial court erred in ruling that an inconsistent statement by the victim¹ to the unavailable witness was inadmissible hearsay. The trial court's denial of the defense motion for mistrial was at least partly based on this conclusion when the witness became unavailable to testify due to illness. We therefore consider these two propositions together.

¶4 We have said a mistrial is appropriate "when an event at trial results in a miscarriage of justice or constitutes an irreparable and substantial violation of an accused's constitutional or statutory right." Tryon v. State, 2018 OK CR 20, ¶ 133, 423 P.3d 617, 653. The denial of a mistrial to obtain the testimony of an unavailable witness violates the Compulsory Process Clause only where it has arbitrarily prevented the defendant from obtaining or presenting evidence that would have been relevant, material, and vital to the defense. Harris v. State, 2019 OK CR 22, ¶ 24, 450 P.3d 933, 945.

¶5 A mere possibility that evidence might have helped the defense or could have affected the outcome does not establish its materiality. Rather, material evidence must create "a reasonable probability" of a different outcome at trial. Brown v. State, 2018 OK CR 3, ¶ 103, 422 P.3d 155, 175. A reasonable probability is a probability sufficient to undermine our confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶6 On appeal, counsel for the Appellant limits the argument to whether the statement of the victim/declarant to the witness, a police detective, was admissible under the residual hearsay exception for trustworthy statements at 12 O.S.2021, § 2804.1, which provides that

. . . a statement not covered by Section 2803, 2804, 2805, or 2806 of this title but possessing equivalent, though not identical, circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines that:

1. The statement is offered as evidence of a fact of consequence;

2. The statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts; and

3. The general purposes of this Code and the interests of justice will best be served by admission of the statement into evidence.

¶7 We find no abuse of discretion in the trial court's conclusion that this was not a trustworthy statement admissible under the residual hearsay exception. The proffered statement lacked any traditional indicia of reliability for statements admissible as an exception to the rule against hearsay. The statement was allegedly inconsistent with the declarant's other hearsay statement and was offered either as substantive evidence to show that it was the true statement--that the injury was an accident--or as impeachment, i.e., that the victim's statements were generally unreliable and unworthy of belief. Such a statement obviously does not satisfy the trustworthiness requirements of Section 2804.1.

¶8 We feel bound to mention that neither the court nor counsel at trial or on appeal seem to have considered the application of Section 2806 of the Evidence Code to this evidence. Title 12 O.S.2021, Section 2806 provides in pertinent part that:

When a hearsay statement . . . has been admitted in evidence, the credibility of the declarant may be attacked and, if attacked, may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. ² If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. (Emphasis added).

¶9 We have never discussed this provision in a published case, but its application to this situation seems apparent. The trial court had clearly admitted incriminating hearsay statements of the non-testifying victim/declarant. By the plain language of this rule, the unavailable detective's testimony about the declarant's arguably inconsistent statement could have been admissible under Section 2806 if the trial court had granted a mistrial to allow the attendance of the unavailable detective.

¶10 However, we find no compulsory process violation in the trial court's denial of a mistrial, because the omitted testimony cannot meet the materiality requirement. The remaining evidence at trial included the declarant's reliable and convincing hearsay statements to other witnesses that Appellant attacked her, corroborated by her injuries and, to some degree, by the Appellant's own testimony. Considering the omitted evidence in view of this properly admitted evidence, the denial of access to this partially or arguably inconsistent statement does not undermine our confidence in the jury's verdict. The denial of a mistrial thus did not infringe Appellant's right to compulsory process. Propositions One and Two are therefore denied.

¶11 In Proposition Three, Appellant argues that trial counsel's omission to seek a continuance to present the detective's testimony about the victim's inconsistent statement was ineffective assistance of counsel. We review this challenge according to the familiar two-pronged deficient performance and prejudice analysis set forth in Strickland v. Washington, supra, at 687. Based on what we have already said, counsel's omission to request a continuance to present this unavailable witness was not constitutionally ineffective.

¶12 When a claim of ineffectiveness can be disposed of on the ground of lack of prejudice, that course should be followed. Malone v. State, 2013 OK CR 1, ¶ 16, 293 P.3d 198, 207 (citing Strickland, 466 U.S. at 697). We conclude here that even if counsel performed deficiently in crafting Appellant's arguments for admitting the detective's testimony, then failed to seek a continuance to obtain that testimony, we find no reasonable probability that, but for counsel's errors, the outcome would have been different. A reasonable probability, after all, is one that undermines our confidence in the outcome. As already mentioned, Appellant clearly assaulted and battered the victim with a dangerous weapon. Proposition Three is therefore denied.

DECISION

¶1 While I concur in the affirmance of the Judgment and Sentence in this case, I write to address the Court's reference to 12 O.S.2021, § 2806. The Court has correctly stated the statutory law; however, it is not applied as the basis for its decision. Therefore, it is dicta and renders this an advisory opinion. See Matter of L.N., 1980 OK CR 72, ¶ 4, 617 P.2d 239, 240 ("[a]n advisory opinion does not fall within the Court's original or statutory jurisdiction; neither does it come within its appellate review. To offer advice in the form of an opinion would be to interfere with the responsibility of the trial court to exercise the powers confided to it. We will not do so absent constitutional or statutory authority."); Canady v. Reynolds, 1994 OK CR 54, ¶ 9, 880 P.2d 391, 394 ("[T]his Court cannot otherwise issue advisory opinions."); and Murphy v. State, 2006 OK CR 3, ¶ 1, 127 P.3d 1158, ("[T]his Court does not issue advisory opinions.").

¶2 While this Court has decided a case applying a prior case or statute not considered by the trial court to arrive at our decision, this is not the case here. See Vance v. State, 2022 OK CR 25, ¶ 5, 519 P.3d 526, 529 (this Court may sustain the admission of hearsay on a different theory than that used at trial, so long as the alternative basis for admission finds support in the record (citing McClendon v. State, 1989 OK CR 29, ¶ 7, 777 P.2d 948, 951)); Harjo v. State, 1994 OK CR 47, ¶ 23, 882 P.2d 1067, 1074 (this Court reviewed and determined exigent circumstances justified warrantless search in light of trial court's failure to consider the issue).