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State v. Rives

Court of Appeals of Oregon

May 23, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
STEVE RAY RIVES, Defendant-Appellant.

          Submitted on remand August 30, 2017.

          Josephine County Circuit Court 10CR0637; On remand from the Oregon Supreme Court, State v. Rives, 361 Or. 800, 400 P.3d 921 (2017). Pat Wolke, Judge.

          Rankin Johnson IV fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and James Aaron, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         In light of State v. Haugen, 361 Or. 284, 392 P.3d 306 (2017), the Supreme Court vacated and remanded the Court of Appeals' decision affirming defendant's third-degree assault conviction to reconsider the trial court's denial of defendant's motion to suppress eyewitness identification evidence. Defendant sought to suppress evidence that the victim of an assault had identified him as one of two assailants. The trial court, applying State v. Lawson / James, 352 Or. 724, 291 P.3d 673 (2012), concluded that the state had shown that the evidence met the "minimum baseline of reliability" under the applicable provisions of the Oregon Evidence Code: OEC 401, OEC 602, and OEC 701. The trial court also concluded that defendant had failed to demonstrate that, under OEC 403, the danger of unfair prejudice substantially outweighed the identification's probative value. The Court of Appeals affirmed the trial court. State v. Rives, 283 Or.App. 431, 388 P.3d 1110 (2017) (Rives I). Subsequently, the Supreme Court issued an opinion involving the second alleged assailant-Haugen-and, in that case, addressed the same eyewitness identification evidence that was at [292 Or.App. 9] issue in defendant's case. In Haugen, the Supreme Court remanded for the trial court to evaluate the evidence in light of Lawson /James because, at the time that the trial court initially admitted the evidence, Lawson / James had not yet been decided. The Supreme Court also vacated and remanded Rives I for reconsideration in light of Haugen. Held: Nothing in Haugen calls into question the Court of Appeals' conclusion in Rives I that the state satisfied its burden to show a "minimum baseline of reliability." Moreover, the trial court did not abuse its discretion by determining that defendant had failed to demonstrate that the eyewitness identification should have been excluded under OEC 403.

         Affirmed.

         [292 Or.App. 10] ORTEGA, P. J.

         Defendant appeals his judgment of conviction for third-degree assault, challenging the trial court's denial of his motion to suppress the victim's out-of-court eyewitness identification of him. In State v. Rives, 283 Or.App. 431, 388 P.3d 1100, vac'd and rem'd, 361 Or. 800, 400 P.3d 921 (2017) (Rives I), we affirmed the trial court's ruling. The Supreme Court allowed review and vacated and remanded for reconsideration in light of State v. Haugen, 361 Or. 284, 392 P.3d 306 (2017) (Haugen II). State v. Rives, 361 Or. 800, 400 P.3d 921 (2017) (Rives II). On remand, we again affirm.

         We provide a limited description of the relevant procedural and background facts for purposes of our decision on remand, but a more detailed recitation of the facts can be found in our original opinion. Rives I, 283 Or.App. at 432-35. In September 2010, two men assaulted the victim late one night in the parking lot of a bar in Grants Pass. The victim had had a negative interaction with defendant in the bar, and when he left the bar shortly after midnight, defendant and another man had made comments to the victim at the door. After the victim stepped out of the bar, one assailant "blindsided" him and another hit him with a hammer. Although the victim contacted police on the night of his assault, he was unable to provide any identifying information that night other than informing the original investigating officer that his assailants were members of the Vagos Motorcycle Club. Five days later, Detective Brown interviewed the victim, and during a sequential photo lineup of known Vagos members, the victim identified defendant and Haugen as his assailants.

         Haugen and defendant were charged in the assault. Defendant went to trial in 2011, which ended in a mistrial. Meanwhile, in Haugen's case, he sought to suppress the victim's eyewitness identification. At the time of that suppression hearing, State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979), controlled the test for admissibility of eyewitness identifications. Applying Classen, the trial court ruled in Haugen's case that the victim's identification of Haugen during the photo lineup was admissible. Haugen II, 361 Or at 286. Haugen went to trial in April 2012, and a jury found [292 Or.App. 11] him guilty of third-degree assault. He appealed his conviction. During the pendency of that appeal, the Supreme Court decided State v. Lawson / James, 352 Or. 724, 291 P.3d 673 (2012), "in which the court substantially revised the Classen test." Haugen II, 361 Or at 286. On appeal in this court, Haugen argued that the identification procedures used in his case raised serious questions about the reliability of the identification under Lawson / James and that we should remand the case to the trial court for a new hearing and trial, so that the trial court could apply the Lawson / James test. We disagreed, concluding that, even under Lawson / James, the trial court correctly denied Haugen's motion to suppress the identification. State v. Haugen, 274 Or.App. 127, 150, 360 P.3d 560 (2015), rev'd, 361 Or. 284, 392 P.3d 306 (2017) (Haugen I). Accordingly, we determined that there was no reason to remand the case to the trial court, and we affirmed. Id.

         Meanwhile, the grand jury returned a superseding indictment against defendant and the state decided to retry him. After the Supreme Court's decision in Lawson / James, defendant moved to suppress the victim's out-of-court eyewitness identification under the new framework. The trial court ultimately denied that motion, and the case proceeded to a jury trial, which resulted in defendant's conviction for third-degree assault. He appealed, challenging the admission of the identification, and we affirmed. Rives I, 283 Or.App. at 443. At the time of our decision affirming the trial court, the Supreme Court had accepted review in Haugen I, but had not yet decided the case. As explained below, ultimately the Supreme Court remanded Haugen's case to the trial court so that the court could consider the admissibility of the eyewitness identification under the Lawson / James framework. Haugen II, 361 Or at 309.

         We pause here to provide a quick refresher of Lawson /James because it provides important context for the discussion that ...


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