State v. Collins, CR9911591

• Decision Date: 17 April 2013
• Docket Number: CR9911591,A147269.
• Citation: 256 Or.App. 332,300 P.3d 238
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jeffrey James COLLINS, Defendant–Appellant.
• Court: Oregon Court of Appeals

256 Or.App. 332

300 P.3d 238

STATE of Oregon, Plaintiff–Respondent,

v.Jeffrey James COLLINS, Defendant–Appellant.

CR9911591; A147269.

Court of Appeals of Oregon.

Argued and Submitted Jan. 17, 2013.

Decided April 17, 2013.

Eric Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the answering brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. With him on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and NAKAMOTO, Judge, and DE MUNIZ, Senior Judge.

DE MUNIZ, S.J.

In this criminal case, we review the trial court's order denying defendant's motion in limine to exclude eyewitness identification evidence. In denying the motion, the trial court determined that a pretrial photographic lineup was not unduly suggestive under the test set out in State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979). Following the pretrial hearing, defendant entered a conditional guilty plea to public indecency, reserving the right to appeal the denial of his motion.

While this case was pending in this court, the Oregon Supreme Court decided State v. Lawson/James, 352 Or. 724, 291 P.3d 673 (2012), in which it substantially revised the Classen test.¹ The question before us, then, is whether, under Lawson/James, the trial court committed reversible error in determining that the eyewitness identification evidence was admissible.² For the reasons that follow, we conclude that the trial court did not err in denying defendant's motion in limine. Accordingly, we affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On the evening of March 9, 1999, Wyland was driving her car on Interstate 205 (I–205).³ Wyland's 12-year-old daughter, Payne, and her daughter's 12-year-old friends, Burns and Christensen, were in the backseat of the car. As they proceeded down the middle lane, a black Nissan pulled up along the driver's side of Wyland's car. Wyland noticed the Nissan because it was dark outside and the dome light was on inside the Nissan. The Nissan slowed, went behind Wyland's car, and then came up along the passenger's side. When the girls suddenly began screaming, Wyland realized that the driver of the Nissan was exposing his genitals and masturbating. Wyland followed the Nissan until she was able to record the license plate number. She then reported the incident to the Oregon State Police (OSP). Upon receiving the report, OSP Trooper Lidey ran the license plate number and discovered that defendant was the registered owner of the Nissan.

A. 1999 police interview with the victims

On the evening of the incident, Lidey interviewed Wyland and the three 12-year-old girls. The victims described the driver as a Caucasian male of average build in his early thirties. They also stated that he had short, dark hair. Christensen and Burns noted that the driver had a very pale face. Although Wyland could not recall whether the driver had facial hair, the girls stated that he did not. The victims described the driver's car as a black Nissan with rear-end damage, a missing rear bumper, and a trunk held closed by bungee cords.

That same evening, OSP Sergeant Swift contacted defendant at his residence. Defendant admitted that he owned a Nissan and that he had possessed the car all day. He also admitted that he had driven on I–205 that evening, but recalled no involvement with the victims. Swift photographed defendant, who had a 5 o'clock shadow at the time. After Swift informed defendant that the photo would be used for identification purposes, defendant responded, “Of course she'll recognize me. I was there.”

Using the information provided by Wyland, Lidey identified defendant as a suspect and composed a pretrial photographic lineup according to standard OSP policy.⁴ Lidey obtained a DMV photo of defendant, portraying defendant with a 5 o'clock shadow. Because Lidey was using defendant's DMV photo, she selected five DMV photos of other men that she believed matched defendant's DMV photo—and not the victims' description of the driver—so that defendant's photo would not stand out. All of the photos were in black and white. Defendant's photo was in position number five. The first photo was of a Caucasian male with hair longer than defendant's hair, and who appeared to be heavy-set. The second photo was of a male with a mustache and who appeared to have a darker complexion than defendant. The third photo was of a Caucasian male with no facial hair, with hair longer than defendant's hair, and who appeared to be heavy-set. The fourth photo was of a Caucasian male with long hair and a full beard. Finally, the sixth photo was of a male with a mustache who appeared to have a darker complexion than defendant.⁵

B. 1999 out-of-court identification (Pretrial photographic lineup)

On March 22, 1999, 13 days after the incident, Lidey showed the photographic lineup to Wyland and the three 12-year-old girls. All of the victims identified defendant as the driver of the Nissan. Lidey followed the 1999 OSP procedure for conducting photographic lineups. Each victim went to a separate room to view the photographic lineup and remained separated from the other victims after viewing the photographic lineup. Lidey informed the victims that they should not feel obligated to identify anyone in the photographic lineup as the driver. Additionally, Lidey read to each victim the OSP photographic lineup admonition, which provided, in part:

“You should not conclude or guess that the photographs contain the picture of the person who committed the crime. You are not obliged to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss the case with other witnesses nor indicate in any way that you have or have not identified someone.”Lidey noted how long it took each victim to identify the driver and asked each victim how strongly she felt about her choice. The victims were not aware that Lidey was timing their responses.

Wyland identified defendant in ten seconds. In making the identification, Wyland stated that she had no question in her mind that she was picking the correct person, although she noted, “The girls got a lot better look at him than I did.” Christensen identified defendant in two seconds and stated that she felt strongly about the identification. Similarly, Burns identified defendant in five seconds and also stated that she felt strongly about her choice.⁶

C. 2010 pretrial hearing on defendant's motion in limine

On May 11, 1999, defendant was charged with one count of public indecency in violation of ORS 163.465. Before trial, defendant filed a motion in limine to exclude evidence of the out-of-court and any in-court identifications of defendant.⁷ Specifically, defendant argued that, under the Classen test, the photographic lineup was unduly suggestive because the nonsuspect photos portrayed persons with physical features distinct from defendant's appearance. According to defendant, any subsequent in-court identifications would be tainted by the out-of-court identification and, thus, would also be inadmissible. The state responded that the lineup was not suggestive and that, in any event, the trial court properly applied the Classen test, noting that each identification had a “source independent of the pretrial identification procedure.”

On October 22, 2010, the trial court conducted a hearing on defendant's motion and the state presented testimony from Wyland, along with Christensen and Burns, who were then 24 and 23 years old, respectively. At the pretrial hearing, Wyland was unable to identify defendant in court. As to her out-of-court identification of defendant, she testified that defendant's photo was “different looking” from the other photos in the lineup. Christensen was also unable to make an in-court identification at the hearing, but she stated that defendant had the general “gist” of what she remembered of the driver's appearance. She explained that, during the incident, she got a clear look at defendant because “there was so much light in the car.” With regard to the photographic lineup, Christensen testified that, when she identified defendant's photo, the driver's face was very “defined” in her memory. Only Burns was able to make an in-court identification, noting that she still had “the vision in [her] head.” According to Burns, she had a clear view of the driver, who was looking at the girls with a “creepy smile.” She further testified that she became nauseated and disgusted when she saw defendant's photo in the lineup.

The trial court denied defendant's motion, concluding that the identification process was not impermissibly suggestive under Classen. The trial court found that “[e]ach of the young girls had a clear view” of the driver and that the photographic lineup procedure was conducted soon enough “to prevent memory of the event from fading or becoming confused.” As to the lineup photos, the trial court concluded that the photographic lineup was not suggestive, finding that “[t]he features of [the nonsuspects] approximated those of the defendant.” Further, the trial court found that each victim gave a “consistent and complete” description of defendant and identified defendant “with a high degree of certainty” and “without any taint, collaboration or suggestion by other witnesses.” The trial court noted that other evidence reinforced the out-of-court identification: the license plate number, the victims' description of the Nissan, and defendant's admission that he possessed the Nissan and drove on I–205 on the day of the incident. Moreover, the trial court considered it significant that the victims quickly identified defendant, because the fact that he had...