State v. Davie

• Decision Date: 18 May 1982
• Docket Number: No. 80,1902,80,1902
• Citation: 56 Or.App. 507,642 P.2d 680
• Parties: STATE of Oregon, Appellant, v. Robert Alan DAVIE, Respondent. ; CA A20188.
• Court: Oregon Court of Appeals

Page 680

642 P.2d 680

56 Or.App. 507

STATE of Oregon, Appellant, v. Robert Alan DAVIE, Respondent.

No. 80,1902; CA A20188.

Court of Appeals of Oregon.

Argued and Submitted Aug. 10, 1981.

Decided March 22, 1982.

Reconsideration Denied April 27, 1982.

Review Denied May 18, 1982.

Barbara Jacobson, Certified Law Student, Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., James E. Mountain, Jr., Asst. Atty. Gen., and Jennifer Wieland, Certified Law Student, Salem.

Douglas W. Moore, Albany, argued the cause for respondent. With him on the brief was Coady & Moore, Albany.

Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

The state appeals a pretrial order suppressing evidence. The issue is whether the in-court and out-of-court identifications of defendant and his voice by three witnesses were properly suppressed as fruits of an unnecessary and impermissibly suggestive identification procedure.

Sometime between 2 a. m. and 3 a. m. on August 25, 1980, a male intruder entered the Martinson home in Brownsville. Fawna Martinson, age 8, was awakened from her sleep by the intruder, whose hand was on her leg underneath her nightgown. Light from the kitchen entered the room through a partly open door. Fawna pushed the hand away and asked where her mother was. The man answered "in her bedroom" and then walked out of her room. Fawna then fell back asleep. Fawna's mother, Dana Martinson, sleeping in an adjoining room, awakened. Propping herself up in bed, she watched the bedroom door for a few seconds until a man appeared in the doorway and entered her room one or two steps. She saw him in "very good light" coming from the kitchen and by moonlight coming in the living room windows and the bedroom windows, which had no curtains. She said: "Hey, what are you doing"? After a pause the man replied, "Oh nothing, I am just going to bed," and then backed out of the door. William Melies, who was in bed with Dana, heard the intruder's voice but did not see him. The intruder then ran from the home.

After the intruder left her home, Dana went to a nearby residence where her daughter Dawn was babysitting. After hearing Dana's description of the intruder, someone suggested the intruder might be defendant. Dawn also commented that the description matched that of a person she had spoken to near her home on the preceding day. Dana immediately returned home and called the sheriff.

Deputy Jegglie arrived at the Martinson home about 3:52 a. m. Outside Fawna's presence, he obtained a description of the intruder from Dana. She described the intruder as being approximately 6 feet tall, weighing 160 to 180 pounds, with blonde, shoulder length hair, in his early twenties, and wearing a red baseball cap, white T-shirt, Levi's and a heavy dark jacket. Jegglie was also informed that defendant might be the intruder. He then talked with Fawna, who gave essentially the same description, except that she said the intruder had on a red and white baseball cap. Neither Fawna nor Dana was able to describe the facial features of the intruder.

Shortly before 8:00 a. m. on that day, Jegglie located defendant at work. At that time defendant was dressed in a white T-shirt and Levi's and was wearing a red and white baseball cap. He had blond, shoulder length hair, was about 6 feet tall and weighed about 180 pounds. Jegglie also observed that defendant had a heavy, dark jacket in the back seat of his car, which was parked nearby. Jegglie testified at the suppression hearing that defendant "fit the description * * * provided by (Dana) Martinson and Fawna." No claim has ever been made that defendant did not fit that description.

Jegglie advised defendant of his Miranda rights and about the incident at the Martinson home. Defendant denied having anything to do with it and stated that he had been drinking in the Brownsville area with two companions the previous evening. He acknowledged that he had been working a short distance from the Martinson's home the day before and that he had spoken with the Martinson girls that day. At Jegglie's request, defendant accompanied him back to the Martinson home in a marked police car to see if the persons there could identify him. Defendant was not under arrest at that time.

Shortly before Deputy Jegglie and defendant arrived at the Martinson home, Dana received a telephone call advising her that "there was a Deputy bringing over a suspect." When Jegglie and defendant arrived at the Martinson home at about 8 a. m., defendant remained in the front seat of the car while Jegglie talked with Deputy Kaufman, who arrived behind them in a marked police car. Both officers were in uniform. When the deputies and defendant arrived at the Martinson home, Fawna, Dana and Melies were inside. All three came outside, but Fawna was told by her mother to go back inside, and she did so. Jegglie said to Dana and Melies, "I got the guy in the car" and that one of the officers was going to look around in back of the house. After Deputy Kaufman had gone to the back of the house and returned, he spoke to Jegglie. Jegglie then returned to his patrol car and escorted defendant to the back of the house. At this time defendant passed within 10 or 15 feet of Dana, and she recognized him as the intruder. She testified at the suppression hearing that when the officers escorted defendant to the rear of the house she "was wondering why he didn't have handcuffs on then because I knew he was the person that was in the house."

After comparing defendant's footprints with the footprints found in the rear of the residence, the officers arrested defendant and handcuffed him. He was then escorted back to the police car, and on the way he was again taken within a few feet of Dana and Fawna, who had joined her mother outside, and Melies. They were informed that the deputies thought the footprint found in the rear of the house matched defendant's. At that time Dana and Fawna indicated to the police that defendant was the intruder. Defendant then exclaimed: "I didn't do it!" Dana then said she recognized defendant's voice as that of the intruder. Melies testified at the suppression hearing that he, too, recognized defendant's voice as the same voice he had heard earlier, although it is not clear from the record whether he conveyed that information to the officers at that time. The trial court made the following finding:

"Any incourt identification of Robert Davie or any subsequent identification of Mr. Davie by Fawna or Dana Martinson or William Melies cannot be based upon any source independent of the impermissibly suggestive confrontation that occurred at approximately 8:00 o'clock a. m. on August 25, 1980."

The state first contends that the identification procedure here was permissible under the well-established rule that on-the-scene identifications shortly after a crime are lawful. State v. Robertson, 42 Or.App. 471, 600 P.2d 935 (1979); State v. Stilling, 31 Or.App. 703, 571 P.2d 184 (1977), aff'd 285 Or. 293, 590 P.2d 1223, cert. den. 444 U.S. 880, 100 S.Ct. 169, 62 L.Ed.2d 110 (1979); State v. McJunkin, 27 Or.App. 401, 556 P.2d 164 (1976), rev. den. 277 Or. 1 (1977); State v. Madden, 1 Or.App. 242, 461 P.2d 834 (1969), rev. den., cert. granted 400 U.S. 901, 91 S.Ct. 145, 27 L.Ed.2d 138 (1970), aff'd 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). Defendant contends that the identification procedure here was unnecessary ¹ and impermissibly suggestive. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); State v. Classen, 285 Or. 221, 232, 590 P.2d 1198 (1979). In Robertson, we held that:

" * * * Assuming arguendo that the (identification) process (which occurred 30 to 40 minutes after an armed robbery) was suggestive, we find that (the identification) was nonetheless reliable and admissible." 42 Or.App. at 479, 600 P.2d 935.

In Stilling, we held that eyewitness identifications made forty-five minutes to an hour after the witnesses had observed a man leaving the scene of a burglary were reliable despite an arguably unnecessary and impermissibly suggestive identification procedure. In McJunkin, the police took the nine-year old victim of an attempted rape to the home of the defendant about thirty minutes after the incident, and she then identified him as the culprit. Six months later, and one day before the trial, the child was shown five photographs of different men from which she selected defendant's photograph. At trial, defendant objected to the introduction of the photographs on the ground that the process of identification was unduly suggestive. That objection was overruled. The child then identified defendant again. Her in-court identification was not challenged, and defendant made no contention on appeal that the in-court identification was tainted by the pretrial photographic identification procedure. Rather, he argued, the face-to-face identification procedure followed by the police on the day of the alleged crime tainted any subsequent photo lineup. We held that "neither the (on-the-scene) procedure followed nor the series of photographs used was impermissibly suggestive." 27 Or.App. at 404, 556 P.2d 164. Finally, in Madden, we held that an on-the-scene confrontation between witnesses and the defendant who was under arrest and wearing handcuffs and which occurred about thirty minutes after an armed robbery was permissible.

We agree with the trial court's conclusion that the identification procedure described here was both unnecessary and impermissibly suggestive. We, therefore, address the issue whether under the totality of the circumstances, the identifications were nevertheless reliable and therefore admissible at trial. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Classen, supra; see also, ...