Argued and Submitted at the University of Oregon Law School, Eugene, Oregon March 13, 2014.
[Copyrighted Material Omitted]
CC 081235225; CA A144741. On review from the Court of Appeals. [*]
Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Ryan Scott, Scott and Huggins Law Offices, Portland, argued the cause and filed the brief for respondent on review.
Matthew McHenry, Levine & McHenry LLC, Portland, filed a brief on behalf of amicus curiae The Innocence Network and Oregon Innocence Project.
[355 Or. 717] BREWER, J.
A jury found defendant guilty of murder. The Court of Appeals reversed defendant's conviction and remanded the case based on its conclusion that the trial court had erroneously admitted eyewitness testimony of two witnesses who identified defendant as the perpetrator. On review, we conclude that the trial court properly admitted the challenged identification testimony of one of the witnesses. We also conclude that any error in admitting the identification testimony of the other witness under OEC 403 was harmless. Accordingly, we reverse the Court of Appeals' decision and affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
We begin with an overview of pertinent evidence the admission of which is not challenged on review. On December 31, 2007, a number of men, including defendant and another man, Porter, attended a party at a house in Portland. When Porter arrived at the party, he observed a fight in progress, during which a man ran into the house. That man was Christopher Monette, who was later shot and killed. Soon thereafter, " [w]ords were exchanged" between Porter and Monette. The exchange was sufficiently heated to cause two other people to intervene. Porter pulled out a pocketknife, because Monette was " a big individual." Shortly thereafter, defendant arrived, and he also exchanged words with Monette. The argument stopped and defendant walked away.
Porter, a convicted felon who testified with the hope of receiving lenient treatment on criminal charges that were pending against him, testified that defendant then grabbed a ski mask out of Porter's back pocket. According to Porter, defendant put on the ski mask, approached Monette, and shot him four times with a handgun in front of several eyewitnesses. Monette died at the scene. Porter testified that, after shooting Monette, defendant walked into the street and fired several shots in the air.
Defendant's uncle, Miller, another convicted felon who testified with the hope of receiving leniency on an unrelated criminal charge, also was an eyewitness to the shooting. [355 Or. 718] Miller, too, testified that defendant was the shooter. Miller stated that, after shooting Monette, defendant took off the ski mask and left the scene. Three other people, Anderson, Grant, and Pskar, none of whom could specifically identify defendant as the shooter, each provided eyewitness testimony that the shooter was an African-American male, approximately 5'7" tall, and with a stocky build. Defendant is 5'6" tall and has a stocky build. Porter is 6'1" tall.
After the shooting, people fled from the party on foot and in cars. The police arrived within minutes of the shooting. Officer Mast approached Porter and defendant, who were walking away from the scene. Porter stopped to talk to Mast, but defendant continued walking away. At that point, a woman, G, ran up yelling and screaming; she
claimed that the shooter was getting away in a car. Hearing for the first time that someone had been shot, Mast went with G to the driveway and found Monette's body. G identified the shooter as " Cello." The car that she identified the shooter getting into was stopped. Moncello James, also known as Cello, was not in the car, but his identification was found there.
After his encounter with Officer Mast, defendant fled from the area. During his flight, both of his shoes came off, and he lost his watch when he jumped over a fence. As he approached a nearby golf course, he jumped over another fence and fell on the other side, breaking his leg.
At the crime scene, the police found the handgun and the ski mask. They submitted the ski mask to the crime lab for DNA testing. The lab found DNA from three people on the ski mask. The lab further determined that defendant was the primary source of the DNA.
Shortly before the shooting, two women, D (19 years old) and N (18 years old), had arrived by car at the house party. D and N are both white. The east side of Portland was " out of [D's] element." D and N were in the back seat of the car. D told a police investigator on the night of the shooting that " she didn't see the shooting and really couldn't describe much. Knew that there was an argument occurring, but could not give specific descriptions of who was involved." [355 Or. 719] D also told the investigator that another man, who identified himself as " Corey," jumped into the car as it left the scene.
N told police on the night of the crime that she witnessed the shooting and that the perpetrator was a " black male, stocky, in his mid-twenties, and wearing a do-rag."
D was interviewed by a defense investigator a few weeks before defendant's trial. In that conversation, D told the investigator that she could describe the men in the altercation only as " big black men." According to the investigator, D explained that " all black men look the same" to her. At trial, D denied making that statement. D told the investigator that the shooter had a " big Afro," but could give no further details about the shooter's hair. A day later, in an interview with the prosecutor, D stated that the shooter had " twisties" with " close black hair." In that interview, D told the prosecutor that she was not certain that she could identify the shooter. In response, the prosecutor proposed that, at trial, D should signal him with a " look in the eye" if she recognized the shooter while on the witness stand. The prosecutor told D, " If you do [recognize the perpetrator], then let the Court know--let the trier of fact know. If you don't, then you don't."
Between the night of the crime and defendant's trial, 23 months passed. During that time, the state made no attempt to have D or N identify the perpetrator, nor did the state inform defense counsel that it intended to ask D or N to make an in-court identification of the perpetrator at trial.
D testified on the third day of defendant's trial. At that time, defendant was present in the courtroom and seated next to his counsel. Defendant was the only African-American in the well of the courtroom, although there were six to 12 African-American men seated in the back of the courtroom. D was aware that defendant was the person charged with Monette's murder. Shortly after the state began its direct examination of D, an equipment malfunction occurred in the courtroom, and the court recessed. As the jurors left the courtroom, everyone, including defendant, stood up. The court staff cleared the public from the courtroom, but defendant remained in the courtroom with his [355 Or. 720] counsel. D left the stand and walked past defendant into the hallway. One of the prosecutors accompanied D as she left the courtroom and noticed that she was hyperventilating. D said to the prosecutor: " Oh, my God, that's him, that's him, that's him." Without saying anything to her, the prosecutor sat D down next to D's mother. During the recess, D had no contact with any of the other witnesses.
After the court resolved the equipment malfunction, D resumed the witness stand. D testified that, before the shooting, she saw
three or more African-American men fighting near the front door of the house. She stated that there were 25 to 50 other people in the yard. Monette wore a tank top, which he took off during the fight. The other people whom D noticed " pretty much all looked, like, the same. They were all wearing really baggy clothing and many of them were very husky gentlemen."
D testified that the overhead street lighting at the scene was " fluorescent." D further testified that, before the shooting, she focused her attention on the shooter and the victim because the two men were engaged in an argument. She stated that she " got a good view of both of the gentlemen." D explained that she was talking to N and not looking in the direction of the shooting when it occurred. D testified that, moments after the shooting, she saw one of the men who had been fighting fire several gunshots into the air. According to D, the shooter was then standing 12 feet away from her and under street lighting. D described the shooter as being black, in his 20s to early 30s, stocky, tall 5'7" . to 6'), and having a " close" Afro hairstyle or braids. She also described his facial features. The prosecutor asked D if she saw that person in the courtroom, and D said that she did.
Before D identified anyone, however, defendant objected, citing the Due Process Clause of the Fourteenth Amendment to the United States Constitution and OEC 403. Outside the jury's presence, the trial court had a lengthy discussion with counsel and, ultimately, overruled defendant's objection. The state resumed its direct examination, and D identified defendant as the man whom she had seen firing gunshots into the air. She explained to the jury that, before entering the courtroom, she did not know whether [355 Or. 721] she would recognize the shooter. She further explained that, after the equipment malfunction occurred and when she walked into the hallway, she became emotional and told the prosecutor " that that was the shooter, that [was] him." D testified that she was 95 percent certain of the accuracy of her identification.
D also testified that, after the shooting, people started " running westbound, jumping into cars, cars were leaving." D stated that, as the car she was riding in started to drive away, she saw a man run toward the car; according to D, the man tried to get in the car. She thought he was the shooter, but wasn't sure. The car that D and N were riding in was driven a few blocks from the house before the police stopped it.
N testified on the fourth day of trial. As with D, in the period of time between the shooting and her testimony at trial, N had not taken part in an out-of-court identification procedure and had not identified anyone as the perpetrator. N testified that she heard one or two gunshots and ducked down; she then looked up and saw the shooter, who was standing 20 to 25 feet away. N testified that, after the shooting, a man that she believed was the shooter came to the car; she wasn't sure whether he was trying to get into the car or was fighting with one of the passengers. However, that passenger repelled the man.
N repeated her pretrial description that the shooter was a " black male, stocky, in his mid-twenties, and wearing a do-rag." In addition, N testified that the shooter was 5'7" tall and that his hair was about three inches long and " nappy." N stated that the shooter was not wearing a head covering when he came toward the car she was riding in and that she got a good look at him from close range. Although [355 Or. 722] N had not given particular information about the perpetrator's hair to police during her initial interview, she had given it to the prosecutor during an interview about two weeks before trial. N testified
that she did not give a more specific description of the perpetrator on the night of the crime because she was upset.
The prosecutor asked N if she saw the perpetrator in the courtroom, and N said that she did. Defendant objected on due process grounds and pursuant to OEC 403. The trial court overruled the objection, and N identified defendant as the perpetrator.
Defendant offered expert testimony that eyewitness identification testimony of the sort given by D and N, more than two years after a stressful event, was inherently unreliable.
The jury convicted defendant of Monette's murder. On appeal, the Court of Appeals reversed. The court concluded that, under this court's decision in State v. Lawson/James, 352 Or. 724, 765, 291 P.3d 673 (2012), D's and N's in-court identifications of defendant as the shooter were problematic; the court therefore remanded the case for a new hearing on the admissibility of that evidence, based on the considerations prescribed in Lawson/James. State v. Hickman, 255 Or.App. 688, 298 P.3d 619 (2013). On review, the state asserts that the challenged evidence was admissible and that, even if the trial court erred in admitting it, the error was harmless in light of other evidence of defendant's guilt.
A. The Lawson/James Framework
We begin with a brief summary of the analytical calculus prescribed in Lawson/James. Under that framework, " when a criminal defendant files a pretrial motion to exclude eyewitness identification evidence, the state--as the proponent of the eyewitness identification--must establish all preliminary facts necessary to establish admissibility" under generally applicable provisions of the Oregon Evidence Code (OEC). Lawson/James, 352 Or. at 761. In particular, the focus of the court's opinion--consistently with its presenting circumstances--was on the admissibility of eyewitness [355 Or. 723] testimony that was asserted to have been tainted by suggestive pretrial police procedures. Thus, the court stated:
" Our purpose in summarizing the scientific research is to determine whether, in light of that research, the test established in [ State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979)], adequately ensures the reliability of particular eyewitness identification evidence that has been subjected to suggestive police procedures, and, ultimately, whether a factfinder can properly assess and weigh the reliability of eyewitness identification evidence."
Id. at 741 (emphasis added).
[355 Or. 724] Where such a challenge implicates OEC 602 or OEC 701, the state must
provide " proof under OEC 602 that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof under OEC 701 that any identification is both rationally based on the witness's first-hand perceptions and helpful to the trier of fact." Lawson/James, 352 Or. at 761-62. If the state satisfies its burden, the burden shifts to the defendant to prove " under OEC 403 that, although the eyewitness evidence is otherwise admissible, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." Id. at 762.
The court in Lawson/James identified two categories of factors that affect the reliability and, thus, the probative value, of eyewitness identifications: so-called " estimator variables" and " system variables." The term estimator variables refers to " characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be manipulated or adjusted by state actors." Id. at 740. In Lawson, the court concluded that a number of estimator variables undermined the reliability of the identification evidence. In that case, the eyewitness, who had sustained a critical gunshot wound, was under " tremendous stress and in poor physical and mental condition," which the court noted would " tend to impair a witness's ability to encode information into memory." Id. at 763. Further, the environmental conditions under which the eyewitness viewed the perpetrator were poor: it was dark and the perpetrator had covered the eyewitness's face with a pillow to obscure her view. The eyewitness viewed the perpetrator for only a few seconds, and the perpetrator wore a hat that concealed his hair, a key identifying feature. Finally, the eyewitness's in-court identification of the defendant occurred more than two years after the incident. By contrast, the court was less concerned [355 Or. 725] with the estimator variables in James, which involved a robbery in which the eyewitnesses came face-to-face with the perpetrators and observed them for an extended period of time. Additionally, the eyewitnesses in James described the appearances of the perpetrators in detail, noting their " race, height, weight, and clothing." Id. at 765.
System variables, by contrast, relate to " circumstances surrounding the identification procedure itself that are generally within the control of those administering the procedure."  Id. at 740. In Lawson, the court concluded that a number of system variables were implicated. Specifically, when the police first interviewed the
eyewitness, she was hospitalized and in a " fragile physical and mental condition." Id. at 764. At that time, the police asked leading questions and " implicitly communicated their belief that [the] defendant was the shooter." Id. Moreover, before identifying the defendant as the perpetrator, the eyewitness viewed the defendant in two photographic lineups, in a newspaper article photo, and at a hearing to which police had brought her. Finally, the court considered significant the alterations in the eyewitness's statements over time. She initially told police that she had not seen the perpetrator's face, but she later identified the defendant as the perpetrator " [a]fter a series of leading questions" by the police. Id. at 765.
Conversely, in James, this court concluded that system variables did not require exclusion of the eyewitness identification evidence, despite the court's determination that the police had conducted a suggestive showup. Central to that conclusion was the accuracy with which the eyewitnesses described the perpetrators' " unique features" before the suggestive showup. Id. at 767. Those unique features ...