State v. Classen

• Citation: 571 P.2d 527,31 Or.App. 683
• Parties: STATE of Oregon, Respondent, v. Richard Harlen CLASSEN, Appellant.
• Decision Date: 15 November 1977
• Court: Court of Appeals of Oregon

Page 527

571 P.2d 527

31 Or.App. 683

STATE of Oregon, Respondent, v. Richard Harlen CLASSEN, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 23, 1977.

Decided Nov. 15, 1977.

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C. J., and RICHARDSON and JOSEPH, JJ.

JOSEPH, Judge.

Defendant appeals from his conviction on charges of burglary and theft.

On May 15, 1975, the complaining witness hired two men, one black and one white, who had come to her home soliciting yard work. After the two men had worked for a few minutes while their employer remained with them working and answering questions, the black man asked to use the toilet. He went into the house, and the complainant remained outside with the other man. After several minutes she became suspicious and went into the house to find out why the black man had not returned. He was gone. She quickly discovered that several valuable items were missing. She then rushed back outside and found that the white man had also disappeared. Shortly after the incident, complainant gave descriptions of the two men to a police officer. She described the white man as about 24 years old, less than six feet tall, of slender build, weighing about 150 pounds, having short light brown hair and a Vandyke beard and wearing blue jeans and a blue shirt. ¹

Defendant assigns as error the denial of his motion to suppress testimony about a photographic identification process. Prior to the first trial, which ended in a mistrial, there was a hearing on a motion to suppress. The complainant said the pictures allegedly used in the throwdown which were shown to her at the hearing were not the ones she had seen in her home. She remembered the ones from which she had made the identification as having been small single pictures; the ones shown her at trial were three views of each subject. She also said there had been 12 or more pictures, including both black and white subjects, and that the pictures might not have been in color. The officer who conducted the throwdown said the pictures at the hearing were the same ones he used in her home. The complainant remembered she had selected two pictures of white men from the array and then picked one of those. The officer's testimony was substantially the same with respect to the white men. ² She could not identify the defendant in the courtroom as the perpetrator. ³ The motion to suppress the identification evidence was denied, and the case went to trial immediately.

The next day the complainant testified for the state before the jury. On her direct examination she said the officer who showed her the pictures had said nothing to her about the people in them before the throwdown, even though the day before both she and the officer said he had told her he thought the perpetrator's picture was in the array. She was even less sure at the trial about the number of pictures she had seen and also said, "I couldn't swear that they are the same ones." She said the two pictures she picked out had been a "colored man and the white man." ⁴ Again she could not identify the defendant in the courtroom.

The officer's testimony was in all respects the same as at the suppression hearing. He identified the photo selected by the complainant, said it was a photo of defendant and pointed out the defendant as the man in the photo. Two of the seven men depicted were heavily built. Another had very long hair. Although each of the seven had a mustache and one had the appearance of not having shaved very recently, defendant was the only one who had what could fairly be described as a beard. He was also the only one pictured wearing blue jeans and a blue shirt.

For reasons not relevant here there was a mistrial. Before the retrial defendant renewed his motion to suppress the photo identification testimony. No new testimony was received at the hearing on the motion, presided over by the same judge who conducted the earlier proceedings. The transcripts of the relevant portions of those proceedings were before the court and were reviewed. The judge ruled that the matter of the identification was simply a question of fact for the jury and denied the motion. He saw the issue as one simply of a resolution of conflicts in the testimony.

Were we writing on the proverbial clean slate, we would tend to agree. What we have in the evidence is attenuated testimony by the complaining witness that she was shown some pictures by an officer, that she had picked out a picture of one as the man who victimized her, that the pictures shown her in the courtroom were not the pictures she had viewed, and that she could not identify the defendant in the courtroom as the man. We also have the believable testimony of the police officer that he showed her the photos presented in court, that she had picked out one and that that one was of the defendant. So described, the situation is a classic one in which a jury traditionally would resolve conflicts and weigh the evidence. The slate is not clean, however, since United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The psychological assumption that eyewitness identifications are inherently untrustworthy has resulted in a body of constitutional law that invites the injection of a due process issue in every case where an out-of-court identification is sought to be used against the defendant. Where the police have used a photographic identification method in their investigation, every case is now of constitutional significance and the question may always be raised whether the photographic display was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971; State v. McBain, 24 Or.App. 737, 547 P.2d 188, Sup.Ct. review denied (1976); State v. Bush, 29 Or.App. 315, 563 P.2d 747 (1977). It is no longer adequate merely to treat the problem by leaving the identification issue to the jury.

Answering the question, we were told in Simmons, involves the "standard" of considering each case "on its own facts." In State v. McBain, supra, we applied Simmons where the complaining witness could not make a courtroom identification but did testify that she had positively identified the defendant in an out-of-court throwdown. The pictures there were nine in number; only one showed a darkly bearded and heavyset man the defendant. We held the process there "was conducted in such a manner as to be impermissibly suggestive" because the photo array was so constituted as to cause the witness to identify the defendant. ⁵ In State v. Bush, supra, the only links between the defendant and the crime were the seven-year-old victim's courtroom identification made "(b)ecause it looked like a man I saw in the pictures" and the police reports describing her out-of-court identification. The pictures originally shown her included only one of a person with a mustache the defendant. We held that in "the totality of circumstances" the identification process was constitutionally infirm, and reversed the conviction.

The standard applied in Bush anticipated the approach of the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In that case the court rejected a constitutional challenge to the admission of photographic identification testimony despite the suggestiveness of the procedure. ⁶ An experienced police officer had observed the suspect while making an undercover drug purchase from him with the expectation of a future arrest and prosecution. He described the man to fellow officers, and two days later he identified the suspect as the man shown in a single photograph placed on his desk by one of those officers. He also made a positive in-court identification.

It is by no means obvious how any reasonable question could have been raised about the so-called identification procedure involved in Manson. A police officer operating in the field had purchased narcotics from an unknown person. He furnished a description to fellow officers, one of whom was astute enough to tie the description first to his memory and then to a picture. The field officer recognized the picture. That led to further investigation and to the arrest of the defendant at the very place where the purchase had been made. Thereafter the officer who had made the purchase positively identified the defendant as the vendor. It is not easy to spot the due process implications in that story. Still, the state acknowledged that "the procedure in the instant case was suggestive and unnecessary." 432 U.S. at 109, 97 S.Ct. at 2250, 53 L.Ed.2d at 151. Apparently the high court took the case to resolve a conflict in the federal circuits between those courts applying a "per se rule of exclusion" and those relying on "the totality of the circumstances."

The court found several interests to be involved in the line of cases beginning with Wade. The first is that of ensuring that eyewitness testimony shall have "aspects of reliability"; the second is to deter the police from using unnecessarily suggestive procedures; and the third "is the effect on the administration of justice." The objective is the...