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Kessler v. Cupp

October 27, 1972

STEPHEN M. KESSLER, APPELLANT,
v.
CUPP, RESPONDENT



Appeal from Circuit Court, Marion County. Val D. Sloper, Judge. No. 71097.

Robert C. Cannon, Law Clerk, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and J. Marvin Kuhn, Deputy Public Defender, Salem.

John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.

Foley

This is an appeal from an order dismissing a post-conviction petition in which petitioner sought to set aside his armed robbery conviction. Petitioner contends that the in-court identification procedure violated due process standards. He also urges that the court should have allowed his motion to reopen the postconviction proceedings to reconsider the holding of the Supreme Court of Oregon in State v. Kessler, 254 Or 124, 458 P2d 432 (1969), in light of the holding of the Ninth Circuit Court of Appeals in Naughten v. Cupp, No. 71-3065 (9th Cir., filed May 24, 1972).

Defendant was convicted of the April 14, 1967 armed robbery of Kienow's store at 39th and Division in Portland. Two men ran into the store at closing time. Each had a gun and each wore a welder's cap and had a silk stocking over his head and face. One of the robbers required Mr. Shelley, the person in charge of the store, to go into the office with him and open the safe. The escape car ran into a telephone pole a few blocks from the store; some of the money and a stocking mask and welder's cap were found in the car and another stocking and welder's cap a short distance away. The robbers escaped.

At the trial the principal witness for the state was Mr. Shelley, the assistant manager of the store who had opened the safe at gunpoint for the robber. He was asked by the prosecutor:

"Q. Mr. Shelley, do you recognize, seated in this courtroom anywhere, either one or both of the individuals who came into your store that evening?

"A. As I said, they had silk stockings over their faces, they were very distorted and I can't come out and say I know this gentleman, sir."

After objection by defendant and considerable discussion, including in camera proceedings, petitioner was required by the court to don the stocking and welder's cap, and the witness Shelley positively identified him.

"A. I looked at him directly for 15, 20 seconds and when he was in the office I had a better look at him because we were face to face.

"Q. How far apart ...


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