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State v. Harrell

Court of Appeals of Oregon

June 13, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JONATHAN WILLIAM HARRELL, Defendant-Appellant.

          Submitted February 21, 2018

          Umatilla County Circuit Court CR150765; Lynn W. Hampton, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Sharia Mayfeld, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary: Defendant seeks reversal of his conviction for reckless driving, challenging the trial court's denial of his motion to suppress a witness's out-of-court identification and any in-court identification of defendant. He argues that the court should have excluded the identification evidence because it did not meet the foundational threshold for admissibility under OEC 602 and OEC 701, as it was unreliable and the conditions under which the police officers administered a "showup" procedure were inherently suggestive. Further, defendant argues that, even if the identification evidence met that threshold requirement, it should have been excluded under OEC 403 as unduly prejudicial. Held: The trial court did not err. The state met its burden of showing that the witness's in-court and out-of-court identifications were admissible under OEC 602 and OEC 701. Furthermore, although the showup was suggestive, defendant failed to prove that it was so inherently suggestive, that the probative value of the identification evidence was substantially outweighed by the danger of prejudice.

         [292 Or. 349] ORTEGA, P. J.

         Defendant seeks reversal of his conviction for reckless driving, ORS 811.140, challenging the trial court's denial of his motion to suppress a witness's out-of-court identification and any in-court identification of defendant. He argues that the court should have excluded the identification evidence because it did not meet the foundational threshold for admissibility under OEC 602 and OEC 701, as it was unreliable and the conditions under which the police officers administered a "showup" were inherently suggestive. Further, he argues that, even if the identification evidence did meet that threshold requirement, it should have been excluded under OEC 403 as unduly prejudicial. We conclude that the trial court did not err in admitting the out-of-court identification and permitting the in-court identification, and therefore we affirm.

         "In reviewing a trial court's admission of eyewitness identification evidence, we defer to the court's findings of fact as long as they are supported by any evidence in the record; we review the trial court's evidentiary ruling for legal error." State v. Engle, 278 Or.App. 54, 55, 373 P.3d 1191, rev den, 360 Or. 465 (2016). However, when a defendant challenges the admissibility of the identification evidence on OEC 403 grounds, we review the court's decision to admit the evidence for abuse of discretion. State v. Lawsonl James, 352 Or. 724, 762, 291 P.3d 673 (2012).

         Smith spotted a white Cadillac driving erratically and watched as it almost caused an accident. She followed the Cadillac into a Safeway parking lot and watched the driver and one other person get out of the car. The driver walked up to Smith's car and asked, "How's that working for you?" After the driver and the passenger entered the Safeway, Smith called the police and described the driver as a tall and heavy-set male with a beard or a mustache, who was accompanied by "a heavy-set girl, in a pink shirt." Officers Farr and Hays were dispatched to the parking lot and, when they arrived, they questioned Smith about the incident. She told them what had happened, described the driver and the passenger, and then left to go to the police station.

         [292 Or. 350] Farr and Hays remained in the parking lot and, when defendant and a child, both of whom matched Smith's descriptions, left the Safeway, Farr stopped them to ask about defendant's involvement in the incident. Farr contacted the police station and asked Smith to return to the scene to identify the person driving the Cadillac. When Smith arrived, she identified defendant as the driver. At the time of the identification, defendant was not handcuffed and was not in the back of the police car; he was standing next to Hays about 25 yards away from where Smith was parked with Farr. Smith did not want to get close to defendant because she was "skittish" about him seeing her. She then left, and defendant was arrested and charged with reckless driving (Count 1) and recklessly endangering another person (Count 2).

         Before his trial, defendant filed a motion to suppress Smith's out-of-court identification and to prevent any in-court identification, invoking LawsonlJames, 352 Or at 724. Before discussing defendant's specific challenges to the identification evidence, we pause to briefly revisit the evidentiary concepts in that decision.

         In Lawsonl James, the Supreme Court established a two-step process for determining the admissibility of an eyewitness's identification when faced with an argument that the identification was tainted by suggestive police procedures. First, "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 the applicable provisions of the Oregon Evidence Code. Lawsonl James, 352 Or at 761. That is, when a defendant's challenge implicates OEC 602 and OEC 701, the burden is on the state to prove that the witness had "the personal knowledge necessary to make an identification, OEC 602, and the identification must be rationally based on that knowledge and be helpful to the jury. OEC 701." Hickman, 355 Or at 728. Second, if the state meets its burden under the first step-i.e., once the state establishes that minimum baseline of reliability-the burden then shifts to defendant to prove that, "under OEC 403 * * *, although the [292 Or. 351] eyewitness evidence is otherwise admissible, the probative value is substantially outweighed by the danger of unfair prejudice * * *." Lawsonl'James, 352 Or at 740.

         The state "satisfies OEC 602 if the eyewitness testifies to facts that, if believed, would permit a reasonable juror to find that the eyewitness observed the facts necessary to make the identification." State v. Hickman, 355 Or. 715, 729-30, 330 P.3d 551 (2014), cert den, 136 S.Ct. 230 (2015). To satisfy OEC 701, the state "must demonstrate by a preponderance of the evidence that the witness perceived sufficient facts to support an inference of identification and that the identification was, in fact, based on those perceptions." LawsonlJames, 352 Or at 754-55. We consider estimator and system variables to decide the issue implicating OEC 701, but only apply estimator variables to the OEC 602 issue. Hickman, 355 Or at 724. Estimator variables "generally refer to characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be manipulated or adjusted by state actors." Lawsonl ...


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