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State v. Haugen

Supreme Court of Oregon, En Banc

March 30, 2017

STATE OF OREGON, Respondent on Review.
v.
SHAWN EDWIN HAUGEN, Petitioner on Review,

          Argued and submitted September 22, 2016.

         On review from the Court of Appeals CC 10CR0636, CA A151535.[*]

          Neil F. Byl, Deputy Public Defender, Salem, argued the cause and fled the brief for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         The decision of the Court of Appeals is reversed, and the case is remanded to the circuit court for further proceedings consistent with this decision.

         Case Summary: The victim was assaulted late in the evening in the parking lot of a bar. Immediately after the attack, he could not describe to a police offcer exactly what had happened or who had assaulted him, but, a few days later, the victim identifed defendant as one of the perpetrators. Before his trial on an assault charge, defendant moved to exclude the eyewitness identifcation, and, applying the then-applicable test for the admissibility of eyewitness testimony, the trial court ruled that the eyewitness identifcation was admissible. Defendant was convicted of the charged offense. Defendant appealed his conviction, and while the appeal was pending, the Oregon Supreme Court announced its decision in State v. Lawson/James, 352 Or 724, 291 P.3d 673 (2012), in which it adopted a new test for the admissibility of eyewitness identifcation evidence. The Court of Appeals applied the new test and affrmed defendant's conviction. Held: The identifcation procedures used in the case raised serious questions about the reliability of the victim's identifcations of defendant under Lawson/James, and, therefore, remand is necessary to give the trial court the opportunity to consider the admissibility of the identifcations under the correct standard.

         The decision of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings consistent with this decision.

          BALDWIN, J.

         In this criminal case, defendant was convicted of one count of third-degree assault, based mainly on the victim's eyewitness identification of him. Before his trial, defendant moved to exclude the eyewitness identification. Applying the test for admissibility of eyewitness testimony set out in State v. Classen, 285 Or 221, 590 P.2d 1198 (1979), the trial court ruled that the victim's eyewitness identification was admissible. While the case was pending on appeal, this court announced its decision in State v. Lawsonl James, 352 Or 724, 291 P.3d 673 (2012), in which the court substantially revised the Classen test for determining the admissibility of eyewitness testimony. In the Court of Appeals, defendant argued that the identification procedures used in this case raised serious questions about the reliability of the identification under Law son/James, and, therefore, that the Court of Appeals should remand the case to the trial court for a new hearing and trial, with the trial court utilizing the Lawsonl James test. The Court of Appeals disagreed, concluding that, even under Lawsonl James, the trial court correctly denied defendant's motion to suppress. State v. Hansen. 274 Or.App. 127, 360 P.3d 560 (2015). We allowed review and, for the reasons explained below, we reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this decision.

         BACKGROUND

         The following facts are undisputed. In September 2010, the victim met two friends at a bar in Grants Pass, Oregon. Already present were several people wearing clothing indicating that they were members of the Vagos motorcycle gang. The victim did not know any of the Vagos members present at the bar, but one of the victim's companions knew and had a conversation with one of the gang members, a man later identified as Rives. During the evening, Rives approached the table where the victim was sitting and asked the victim if he knew a man named Moore, a former member of the Vagos who, several years earlier, had been a witness for the prosecution against other Vagos members. The victim answered, "Well, yes I do. I understand, you know, he used to be a Vago." Rives then became irate and began ranting about Moore. The victim merely nodded in response. The encounter lasted two to three minutes.

         The victim was at the bar for about two hours. During that time, he overheard a conversation in which several gang members were teasing defendant, who also appeared to be a member of the Vagos, about wearing a red shirt and tie to sell cars on a car lot. When the victim was leaving the bar around 12:30 a.m., defendant, who was then standing in a hall near the exit door, looked directly at the victim and said, "Have a good fucking night." As the victim stepped outside the door to the bar, he encountered Rives. The victim thought that he had heard something behind him, turned to look, and saw someone whom he could not clearly see holding the door shut. Rives then said to the victim, "Are you here to kick us out?" The victim responded, "No, I'm going home. I just want to walk to my car." At that moment, the victim saw that defendant was standing to his right. Defendant touched the victim's shoulder and said, "Well, walk to your car." As the victim began walking to his car, someone punched him on the side of the head. He fell to the ground and someone kicked him in the chest or shoulder. As the victim tried to get up, someone else struck him in the head with what he later thought was a small metal hammer. The assailants then left. The victim was nearly knocked unconscious but was able to get up and walk to his truck and drive home.

         Once home, the victim called 9-1-1 and reported that he had been assaulted by several members of the Vagos motorcycle gang and that he had been punched and "blind-sided." A police officer, Nicklason, arrived later that night to interview the victim. The victim appeared to be in pain and to have been significantly injured.[1] The victim told Nicklason that four to six Vagos members approached him as he was leaving the bar and asked him if he was trying to run them off. The victim stated that he was later struck on the right side by someone he did not see. He thought he had been punched but was not sure. He did not mention being hit with a hammer.[2] The victim told Nicklason that there were no witnesses to the assault, and, although he recognized his assailants as part of a group that had been in the bar, "he couldn't recognize them specifically individually." That is, the victim did not describe to Nicklason the race, height, weight, or any identifying feature of the individuals who assaulted him, other than that they were male and members of the Vagos gang. The victim attributed his inability to provide a description of his assailants to the facts that it was dark and it was a brief encounter.

         Nicklason forwarded the case to Detective Brown, who was responsible for dealing with outlaw motorcycle gangs in the area. Brown interviewed the victim at the police station five days later. The victim once again relayed the events of the evening when he was assaulted, this time in more detail. The victim told Brown that the people at the bar were definitely members of the Vagos gang-they were "flying their colors, " that is, wearing green bandanas and jackets with the Vagos insignia. The victim stated that the person who had struck him from the side was a "great big guy, " about 230 pounds, not fat, in his late 20s or early 30s, and had been teased at the bar earlier for dressing up for his job as a car salesman. The victim also told Brown that the person who had hit him with the hammer was a "little fat guy, " probably in his 40s, with a long ponytail. Brown asked the victim if the first assailant was "pretty buff." When the victim answered in the affirmative, Brown said, "I think I know who you're talking about." After talking to the victim for a few more minutes, Brown said, "[W]hat we'll do here in a minute, [victim], I'll show you some photographs-and maybe that will help us-once we have some photos we can go through-and we'll identify-who the little fat guy is."

         Brown then gave the victim the following disclaimer:

"You are about to be shown some photographs. Just because the officer is showing you these photos, you are in no way obligated to identify anybody, okay? The person who committed the crime may or may not be in this group of photographs."

         Brown explained to the victim that he would ordinarily show him six photographs, "but because there's so many people involved in this I'm just going to show you a group of photographs." Brown then presented the victim with a binder of 23 photos. The photos were not chosen based on the subjects' similarities to the descriptions that the victim provided to Brown of his assailants and the other people in their group; rather, all were Department of Motor Vehicle driver license photographs of known Vagos "Outlaw Motorcycle Gang" members and associates. The photos did not include any notes or names.

         The victim identified one person he recognized as a "good man, " and Brown agreed and provided that individual's name. Next, the victim identified a man he knew as "Ronnie." Brown confirmed that man's name. The victim thought that Ronnie had been present, but he was not sure whether Ronnie was involved in the assault. Then the victim pointed to a picture of defendant, stating, "That sure looks like the guy that hit me right there, " and "I'm pretty sure it was him." Brown said, "We'll just call him White Boy for now, " and set that picture aside. After identifying another person he thought was present at the bar, the victim asked Brown how old the pictures were. Brown responded that they were a couple of years old. Brown and the victim continued through the remaining pictures, with the victim pointing out people he thought might have been present in the bar on the night of the assault as well as people he knew, and with Brown providing feedback such as providing the real names and gang names of some of the people pictured and commenting on who was in prison, who had distinctive physical traits or habits, whose hair had or had not changed since the DMV photo was taken, and the like.

         At one point, Brown directed the victim's attention to a picture of Rives, saying, "This gentleman now has a little bit more gray. I'm talking about 'Six Ball, ' or Steve Rives. He's got more gray, but he's got a ponytail that long on his back." The victim responded,

"That sure looks like the little fat man right there. He looks different in this. His hair appears darker. But that sure looks like him because he did-his hair was lighter and the ponytail was probably about that long. *** I believe he's one of the ones involved. I wanted to come back to him, but * * * that's why I asked you when I looked at his picture how old these pictures are. "

         Brown set that photo aside as well.

         Brown and the victim examined the remaining pictures, with Brown continuing his commentary and the victim pointing out individuals whom he thought might have been present at the bar on the night of the assault. When they had finished going through the photos, Brown returned the victim's attention to defendant's picture. Brown asked the victim how certain he was that defendant was the person who first struck him. The victim replied that he was 75 to 80 percent certain. He also told Brown that defendant was the person who, earlier in the night, had said to him, "Have a good fucking night."

         Brown then offered to present the victim with a series of photos of defendant and others that had been taken during an unrelated surveillance action a week earlier, saying that "maybe that will help a little bit." Brown told the victim that he wanted to show him the more recent photos "because there are some significant differences in both the gentlemen that you have said that have assaulted you." In the second set of photos, the pictured individuals were all wearing gang apparel. The victim identified Rives as the person who had hit him with the hammer, saying that he was "99.9 percent sure" it was Rives. The victim also identified defendant in one of the photos and again said that he was 80 percent certain that defendant was the person who first struck him. After being shown yet another recent surveillance photo of a group of individuals that included defendant, the victim raised his certainty level to 90 percent.

         Defendant was charged with one count of third-degree assault. Before the trial, defendant moved to suppress the victim's identification of him during the interview with Brown and to suppress any future in-court identification. Defendant argued that the identification was inadmissible under Classen, because the lineup procedure Brown had used was suggestive, it needlessly departed from prescribed procedures for avoiding suggestiveness, and the circumstances surrounding the identification indicated that the victim's identification was not made independent of the suggestive lineup. The trial court denied the motion. In a letter opinion, the trial court ruled that the lineup procedure that Brown had used was not unduly suggestive, because Brown did not violate guidelines for photographic identifications and because the court could find no other legal reason for concluding that the photo lineup was unduly suggestive. The trial court also found that the victim's identification was reliable when considered under four of the factors that this court had set out for determining eyewitness identification reliability in Classen (the witness's ability to observe the defendant; the timing and completeness of the witness's description; the witness's certainty in the identification; and the lapse of time between the event and the identification) and in light of the fact that various details that the victim remembered about his assailant were later corroborated by other witnesses at the bar. For those reasons, the trial court concluded that "the accuracy of the identification in this case is a matter for the trial jury; and not for this court."

         The case proceeded to trial in April 2012. During the trial, the victim identified defendant in court as the person who had punched and kicked him, as the person who had said, as the victim was leaving the bar, "Have a good fucking night, " and as the person who had been teased as a car salesman at the bar. The victim testified that he was 100 percent certain that defendant was the person who assaulted him. Ultimately, the jury convicted defendant of the charged offense.

         After defendant filed the notice of appeal in this case, this court issued its opinion in Lawsonl James, which we discuss in more detail below. Defendant argued to the Court of Appeals that Law son/James dramatically changed the legal landscape for determining whether an eyewitness identification is admissible and that serious questions about the reliability of the victim's identification of defendant under Lawsonl James warranted reversal and remand for a new hearing in which the trial court could apply the Lawsonl James test. ...


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