STATE v. LAWSON

SERCOMBE, J., dissenting.

On appeal, defendant argues that the trial court erred in denying his motion to strike the surviving victim's in-court identification of him because her identification was the product of unduly suggestive police procedures and was not shown to have an independent, reliable source. The state does not dispute that the process leading to the victim's in-court identification was unduly suggestive. As concluded by the majority, that concession is well-taken. See 239 Or. App. at 374. However, I would hold that the state failed to meet its burden to show that there was little likelihood of misidentification in this case in light of the particular suggestiveness of the prior procedures and the unreliability of the victim's prior identifications of defendant. See State v. Classen, 285 Or. 221, 232-33, 590 P.2d 1198 (1979). Accordingly, I would reverse defendant's convictions and remand the case for a new trial. I respectfully dissent from the majority's conclusions to the contrary.

It is helpful to start with first principles. As explained by the Oregon Supreme Court in State v. Johanesen, 319 Or. 128, 134, 873 P.2d 1065 (1994), the court in Classen "fashioned a new evidentiary rule governing the admissibility of * * * identification evidence sought to be excluded by a criminal defendant as a product of an unduly suggestive procedure." The rule derives from the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is "designed to protect the reliability of the verdict, i.e., to minimize the danger of convicting the innocent on the basis of unreliable identification evidence." Id. Accordingly, as provided in Classen, the ultimate issue to be decided by a court in determining the admissibility of eyewitness identification testimony is whether an identification made following a suggestive procedure has nevertheless "been demonstrated to be reliable despite that suggestiveness." 285 Or. at 233 (footnote omitted). Only if the identification survives that judicial scrutiny does its reliability and probative force become questions for the jury. Id. Classen announces several aspects of the court's role as evidentiary gate-keeper in the setting of eyewitness identification testimony. First, the court's task is to determine whether the process leading to the identification was unduly suggestive and, if so, whether the proffered identification has an independent source or possesses aspects that "substantially exclude the risk that it resulted from the suggestive procedure." Id. at 232. Second, in determining whether the evidence is reliable and independent from the suggestive procedures, the court is to consider a nonexclusive list of pertinent factors, which includes the witness's opportunity at the time of the crime to view the perpetrator, the timing and completeness of the witness's description after the event, and the lapse of time between the original observation and subsequent identification. Id. at 232-33. Third, the burden of proving a reliable, independent source rests on the state. Id. at 232 ("[T]he prosecution must satisfy the court that `the proffered identification has a source independent of the suggestive confrontation[.]'"); State v. Davie, 56 Or. App. 507, 513, 642 P.2d 680, rev den, 293 Or. 146 (1982) ("The state bore the burden of proving that the identifications were based on a source independent of the suggestive confrontation.").

As I note above, however, the ultimate issue to be resolved by the court is whether an identification made following a suggestive procedure has nevertheless "been demonstrated to be reliable despite that suggestiveness." Classen, 285 Or. at 233 (emphasis added). Thus, when analyzing the record before it, the court in Classen stated, "[T]hese suggestive aspects would not require the court to suppress the evidence that [the witness] had identified defendant's photograph if the prosecution was able to negate any substantial risk that this identification was stimulated by the suggestive procedure." Id. at 236 (emphasis added). The court, however, was unable to conclude on the record before it that the witness "would have identified one of the photographs out of seven [as the defendant] * * * in the absence of the suggestive procedure." Id. at 238. As a result, the court held that the state had failed to carry its burden of proof and the defendant was entitled to a new trial. Id.

The ultimate issue identified in Classen signals that the gravamen of admissibility of eyewitness identifications — reliability — is determined under the totality of all the circumstances, including the effect of any preceding suggestive procedures. In other words, in determining whether to admit the proffered identification, the court must weigh the evidence of reliability (the independent source) against the evidence of suggestive procedure and only where the former overcomes the latter, such that there is not a "substantial risk" of identification based on the suggestive procedure, will the identification be allowed to reach the jury.

That exercise of weighing the evidence of reliability against the evidence of suggestive procedures was explicitly recognized in Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L.Ed. 2d 140 (1977), a case cited and relied on by the court in Classen when formulating the Oregon rule. See Classen, 285 Or. at 232-33. In Manson, the Supreme Court explained:

"[R]eliability is the linchpin in determining the admissibility of identification testimony * * *. The factors to be considered are set out in [ Neil v. Biggers, 409 US 188, 199-200, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972)]. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."

The concern of the Supreme Court in Manson regarding the likelihood of misidentification is echoed in the most recent case issued by this court on this issue: State v. Ray, 157 Or. App. 601, 971 P.2d 490 (1998). In Ray, we considered the relevant Classen factors and determined that the witness's identification "did have a source independent of the suggestive confrontation." Id. at 605. In that case, the defendant was charged with second-degree theft, ORS 164.045, based on an alleged unauthorized signing of a credit charge for merchandise at a hardware store. Id. at 603. Before the defendant's arrest, the hardware store clerk was brought to the defendant's home to identify the defendant as the person who signed for the charge, a procedure that the state conceded was suggestive of the defendant's identification. Id. at 603, 605.

The evidence showed that the clerk had made sales to the defendant in prior encounters over a period of three years, had seen the defendant twice in the company of the victim, had immediately recalled who had signed the slip for the unauthorized charge on the victim's account, and had remembered the conversation he had had with the defendant at the time of the sale. Id. at 605. We stated that the witness "had ample opportunity to view defendant and to determine that he knew him from past encounters." Id. Accordingly, after considering "the totality of the circumstances," we found that the witness "possessed `knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from [his] observations of him at the time of the crime.' Given [the witness's] familiarity with defendant, there was little likelihood of misidentification in this case." Id. (first bracketed text in Ray; citation omitted; emphasis added).

Returning to the instant case, in order for the state to have met its burden to demonstrate a sufficiently reliable, independent source for Sherl's in-court identification of defendant, the state needed to adduce evidence that negated the corrupting effect of the suggestive identification procedures used by law enforcement officers prior to trial. Where, as here, the pretrial identification procedures used by those officers are particularly suggestive, proof of the independent reliability of Sherl's prior identifications of defendant must be correspondingly stronger in order to overcome that taint. In determining whether the state has met its burden, I begin by considering the evidence of the suggestive identification procedures used in this case and then weigh that proof against evidence that relates to the Classen factors of reliability, in order to determine if there is little likelihood of misidentification in this case.

As recounted by the majority, Sherl failed to identify defendant in photograph arrays shown to her by police detectives in the months immediately following the crime. Two years later, in preparing for trial, police officers renewed efforts to obtain that identification evidence. The trial court concluded that two suggestive pretrial procedures occurred in this case: "the personal view of the defendant in court followed by a display of a single photograph of the defendant." In its findings of fact, the trial court described the occurrence of those procedures this way:

"In September 2005, Sherl Hilde attended a pre-trial hearing in this case in the company of Officer Merrifield. The defendant was seated at counsel table, and apparently [Sherl] was able to see at least a portion of the defendant's face from her seat in the back of the courtroom. Thereafter, Officer Merrifield provided [Sherl] with a single photograph of the defendant — a photograph that was taken by officers in August 2003, showing the defendant wearing a dark shirt and a dark hat with white lettering."

Detective Merrifield explained why he elected to show defendant to Sherl in court:

"She was very fearful of having to face the man who murdered her husband and shot her for the first time after this incident happened, and I was concerned for her because she was so scared of this. And we, between the two of us, came up with [this] to try to allow her to see him in the courtroom, and that was the reason for bringing her up to the court-room just to let her see him. That he is a man like any of us. That he's — that this would help her in the process of having to get up and do this in front of people that she doesn't know and relive this incident again."

The timing of the two suggestive procedures — approximately two months before the in-court identification and two years after the crimes — weighs heavily in favor of a substantial risk of misidentification. Although our prior case law has generally addressed suggestive on-the-scene identification procedures, see, e.g., Davie, 56 Or. App. at 510-11, 513, and suggestive photographic identification procedures, see, e.g., State v. Najibi, 150 Or. App. 194, 197-98, 945 P.2d 1093 (1997), rev den, 326 Or. 464 (1998), the initial suggestive procedure involved in this case — the viewing of defendant at the pretrial hearing — carries with it an especially corrupting effect on future in-court identifications. Given the courtroom setting at the pretrial hearing, Sherl's viewing of defendant at that time was essentially a dress rehearsal for her in-court identification two months later, something that "would help her in the process of having to get up and do this in front of people" at trial. The evidence regarding the suggestive procedures therefore indicates a very substantial risk of misidentification. The issue becomes, then, whether there is a reliable and independent source for that identification that is sufficient to overcome the substantial risk of misidentification caused by the suggestive procedures. That determination is made using the Classen factors.

A. Opportunity to view the perpetrator

The first Classen factor is "the opportunity that the witness had at the time to get a clear view of the persons involved in the crime." 285 Or. at 232. The trial court made the following findings regarding Sherl's opportunity to view the person at the time of the crime: (1) after she and her husband were shot, Sherl "was on her back on the floor" of the trailer; (2) a "`man' asked [Sherl] if she had seen him, and [Sherl] indicated that she had not seen him. The man put a pillow over her face to block her view"; and (3) Sherl "decided to turn her head so she might view the person. Thereafter, the `man' walked by the doorway of the trailer, and in the light that came from inside the trailer, she saw the man's profile as he stopped for a brief time."

Other evidence in the record is also relevant to the first factor. The majority notes that

"[t]he observation occurred some time after 10:00 p.m. in a trailer that either was unlit Or. was dimly lit; * * * Sherl was observing the man covertly, because he had put a pillow over her face to prevent her from seeing him; * * * at the time she saw him, she was suffering from a painful and indeed life-threatening gunshot wound."

Sherl's opportunity to view the perpetrator at the time of the shootings differs significantly from the quality of the viewings that other witnesses have had in other cases where we have upheld identifications notwithstanding suggestive identification procedures used by the state. See, e.g., Najibi, 150 Or. App. at 196, 199 (although the two witnesses' view of a robbery suspect's facial features was restricted by head gear that left only the area around his eyes visible, the witnesses got a clear view of the suspect during daylight and during their substantial contact with him at the time of the crime); State v. Morgan, 80 Or. App. 747, 749, 724 P.2d 334, rev den, 302 Or. 461 (1986) (the victim saw the suspect's face for about one minute from two to three feet away as it was lit by a pole lamp in a parking lot and her car's interior light); Davie, 56 Or. App. at 509 (one witness, awakened from sleep by a nighttime intruder whose hand was on her leg, saw the man in light that entered her bedroom from the kitchen through a partly open door, and a second witness, already awake in an adjoining bedroom, saw the man take two or three steps into her bedroom in "very good light" coming in from the kitchen and by moonlight coming in from the living room windows and bedroom windows, which had no curtains). As many of the circumstances surrounding Sherl's opportunity to view the perpetrator counsel against reliability — the absence of good lighting, the limited scope and duration of the viewing, and the effects of Sherl's injury — the evidence under this factor adds little to the scale to negate the suggestiveness of the pretrial procedures.

B. Timing and completeness of the witness's description

The second Classen factor is "the timing and completeness of the description given by the witness after the event." Id. at 232-33. The trial court made the following findings regarding the timing and completeness of Sherl's descriptions of the perpetrator of the August 21, 2003, shootings: (1) on August 23, 2003, "[Sher]] communicated that she and her husband had been shot by a single person — that she could identify — who drove a yellow pickup"; (2) on September 22, 2003, "[Sherl] * * * asserted that the `man' that did the shooting was wearing the same hat and shirt as the `man' who was in their camp earlier in the day"; and (3) on October 1, 2003, "Sherl Hilde provided additional details of the events of August 21, including a description of the man as a taller person wearing a baseball cap and dark colored shirt. She related that she had not seen the full face of the person, but that she had seen his profile."

Other evidence in the record is also relevant to the second factor. The majority describes much of that evidence in detail. See 239 Or. App. at 382-83. Because I find this factor to be particularly important to the analysis at hand, however, I pause to reiterate the evidence described by the majority and to note other relevant considerations.

When the first responders arrived on the scene on August 21, 2003, Sherl indicated to an EMT that she did not know who had shot her or her husband. She was loaded into the back of an ambulance and given only oxygen; no narcotics were administered at that time. The ambulance left the scene and drove to a highway, where Deputy Mapes arrived and, at some point, briefly interviewed Sherl. She was in a lot of pain and it was difficult for her to talk, but she told Mapes that the subject was wearing a black baseball cap with white lettering on it and a black T-shirt and that he was slender. Sherl never told Mapes that the person who had shot her was the person she had seen earlier in the day in the campsite. At some point, Sherl was transferred to a second ambulance, where she told another first responder, Morgan, that the person's cap and shirt were a dark color and that she had seen him earlier in the day at the campground. Sherl was subsequently transferred to a helicopter, were she told the respiratory therapist, Jennings, that she had been shot by a young man and that he was driving a yellow truck. Sherl also indicated that the person who shot her was somebody she either knew or had contact with prior to the shooting. The conversation between Jennings and Sherl occurred before she was given narcotics in flight. At some point on the way to the hospital or shortly after she arrived, Sherl stated a belief that the helicopter pilot was the perpetrator.

On August 23, 2003, Sherl communicated to Sergeant Kipp, through leading questions, that she had seen the man who had shot her and her husband, that there was one person who had committed the crime, and that he was wearing a baseball cap and a shirt. Sherl indicated that earlier in the day, before the crime was committed, she had seen the person who shot her and that it was the person who had stayed in their tent at their campground. She further indicated that the suspect had not driven a vehicle into the camp-ground when the crime was committed, but that she had seen the shooter's vehicle earlier in the day and it was a yellow pickup. During the interview, Kipp attempted to have Sherl identify the suspect through a photo lineup, but she could not do so.

On September 22, 2003, during an interview with Detective Merrifield, Sherl described the man who shot her as wearing the same dark-colored baseball cap with white lettering and dark-colored shirt as the man who was in their camp earlier in the day. Merrifield attempted to have Sherl identify the suspect in a second photo array, but, again, she could not do so. Sherl was also shown a photo of defendant's truck, and indicated that the truck in the photo was like the truck the man had in the camp earlier in the day.

On October 1, 2003, in yet another interview, Sherl again indicated that the perpetrator was the man from the camp earlier in the day — that the man was wearing a base-ball cap like the one worn by the man earlier in the day, that the man had a thin build like the man from earlier in the day, and that he was wearing a dark-colored shirt like the man was wearing earlier in the day. In addition, Sherl stated that, as she lay on the ground and the man walked by, she could see that his shoulders cleared the bottom of the trailer, whose height Noris had raised, so that she believed him to be a taller person. She told Merrifield that she was not sure if the man was wearing pants or shorts but thought that he was wearing jeans. She also described the man's voice as being soft when he talked to her the final time.

In sum, Sherl's description of the perpetrator's shirt, cap, and build were consistent, but generic — a dark or black T-shirt, a dark or black baseball cap with white lettering, and a thin or slender build. She offered little else by way of a description — just that the perpetrator was a young man, a taller person, a person with a soft voice, and a person who may have been wearingjeans. None of those descriptions was of specific features, such as eye, hair, or skin color, much less distinguishing characteristics, such as scars or tattoos. In addition, Sherl's identification of the perpetrator through correlation to other individuals varied from indicating that the perpetrator was the man from the campsite earlier in the day to the perpetrator was the helicopter pilot, although she appears to have correlated the perpetrator on most occasions to the person in the campsite earlier in the day. In addition, Sherl was unable to identify defendant in the two photo throwdowns shown to her in the month following the shootings.

In those respects, this case again differs significantly from a number of the cases in which we upheld the independent reliability of identifications. See, e.g., Najibi, 150 Or. App. at 196 (the witnesses described three robbers as having light complexions and one robber as having a dark olive complexion, being five feet eight or nine inches tall, 150 to 160 pounds, with brown eyes and dark brown hair tied in a short pony tail); State v. Mackey, 86 Or. App. 691, 694, 740 P.2d 231, rev den, 304 Or. 279 (1987) (the witness noted the robbery suspect's facial scar, arm tattoo, light bearding, light reddish-blond hair, and type and color of clothing); Davie, 56 Or. App. at 509-10 (although neither witness was able to describe facial features of the intruder, the witnesses described him as being about six feet tall, 160 to 180 pounds, with blond, shoulder-length hair, in his early twenties, and wearing a red or red and white baseball cap, a white T-shirt, Levi's, and a heavy dark jacket). Although Sherl provided a description of the perpetrator on multiple occasions relatively soon after the crimes, the generalness and variations in her descriptions counsel against reliability; the evidence under this factor again adds little to the scale to negate the suggestiveness of the pretrial procedures.

C. Certainty of the witness

The third Classen factor is "the certainty expressed by the witness in that description and in making the subsequent identification." 285 Or at 233. The trial court noted that, in making the in-court identification of defendant as the shooter, Sherl expressed that she did not have any doubts, that she would never forget his face, and that she always knew that the shooter was defendant. The trial court also noted that Sherl was "certain that the `man' that was in their camp site on the morning of August 21, 2003, is the same `man' that shot her husband and herself later that evening."

As with the preceding factors, however, other evidence in the record is relevant here. The majority notes some of that evidence: "[Sherl] denied, at some points, that she had seen the perpetrator, expressed doubts as to her ability to identify the perpetrator, and identified the helicopter pilot as the perpetrator, as well as her earlier unsuccessful attempts to identify the perpetrator in photo throwdowns." 239 Or. App. at 384. In addition, I also add to those considerations the circumstances of Sherl's encounter with the man in her campsite earlier in the day, i.e., the source of her certainty that the perpetrator of the shootings was that man. The trial court found:

"[Sherl] had a period of approximately 40 minutes to observe the defendant at Briggs Camp on the morning of August 21, 2003. She described him as a `nice looking, clean cut' man with a thin mustache, who appeared `depressed.' She was several steps behind Noris Hilde when her husband talked to the defendant and heard the defendant's voice and saw his face. [Sherl] was curious about the defendant's demeanor (she described him as `nonchalant') and remembered the manner in which defendant moved (which she characterized as a `loping walk'). [Sherl] recalled that the defendant was wearing a dark or black shirt and a black hat that had white lettering. [Sherl] paid particular attention to the defendant because the circumstances made her feel uneasy, and she was relieved when he left the campground."

Unlike in Ray, where the witness had made sales to the defendant in multiple prior encounters over a period of three years, see 157 Or. App. at 605, Sherl's prior encounter with defendant was limited to one instance over the span of 40 minutes. During that encounter, however, she noted some of defendant's physical attributes and his clothing. Her description of defendant from the morning of August 21 matches, in many respects, her later descriptions of the perpetrator of the shootings; although one of the more identifying features of defendant from earlier in the day — his thin mustache — is not part of the descriptions Sherl gave of the perpetrator. On balance, Sherl's opportunity to observe the man in her campsite earlier in the day and her generally consistent certainty that that man was the perpetrator of the shootings counsel in favor of reliability, adding more evidence to the scale to negate the suggestiveness of the pretrial procedures.

D. Lapse of time

The next Classen factor is the lapse of time between the original observation at the time of the crime and the subsequent identification sought to be admissible. See 285 Or. at 233. Sherl's original observation of the person involved in the shootings occurred on August 21, 2003; she identified defendant as the perpetrator of those crimes at trial on November 4, 2005. As noted by the majority, "there is no doubt that a two-year lapse is a significant amount of time and does not weigh in favor of a conclusion that the identification had an independent and reliable source." 239 Or. App. at 384. The two-year lapse of time between the original observation and in-court identification, in my opinion, fails to add any measure of weight to the scale to negate the suggestiveness of the pretrial procedures.

Considered in their entirety, the above circumstances indicate that there is a source for Sherl's in-court identification that is separate from the pretrial suggestive procedures. That source, however, bears limited indicia of reliability.

Under the totality of all the circumstances, I cannot conclude that the prosecution, in this case, presented sufficient evidence under the Classen factors to negate the very substantial risk of misidentification precipitated by the suggestive procedures. In weighing the competing factors, I acknowledge that this case is a close one. However, when evidence of Sherl's limited opportunity to view the perpetrator is combined with her generic descriptions of the perpetrator, her certainty of her correlation that the perpetrator was the man from earlier in the day, and the two-year lapse of time, I am persuaded that that evidence fails to demonstrate that Sherl's in-court identification is reliable despite the suggestive pretrial procedures. Because I would hold that the state failed to meet its burden of proof, I conclude that the trial court erred in denying defendant's motion to exclude Sherl's in-court identification of defendant as the perpetrator of the crimes.