State v. Delatorre-Vargas
| Decision Date | 07 March 2012 |
| Docket Number | CR070343,A141725. |
| Citation | 273 P.3d 335,248 Or.App. 502 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Jose Huber DELATORRE–VARGAS, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Bronson D. James, Portland, argued the cause for appellant. With him on the brief was Bronson James, LLC.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.
Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.*SERCOMBE, P.J.
Defendant was convicted of two counts of first-degree robbery, ORS 164.415, one count of first-degree burglary, ORS 164.225, one count of aggravated first-degree theft, ORS 164.057, two counts of coercion, ORS 163.275, one count of unlawful use of a weapon, ORS 166.220, two counts of menacing, ORS 163.190, and one count of attempted interference with making a report, ORS 161.405(2)(e); ORS 165.572. On appeal, he contends that the trial court erred in denying his pretrial motion to suppress out-of-court photographic and voice identifications made by two witnesses. He argues that the identifications were irreparably tainted by suggestive police procedures. We conclude that the identifications were obtained using suggestive procedures and that the state failed to demonstrate that the identifications were independently reliable. See State v. Classen, 285 Or. 221, 232, 590 P.2d 1198 (1979) (). Accordingly, we reverse.
We are bound by the trial court's findings of historical fact where there is evidence in the record to support them. State v. Najibi, 150 Or.App. 194, 198, 945 P.2d 1093 (1997), rev. den., 326 Or. 464, 952 P.2d 64 (1998). However, we are not bound by its legal conclusions drawn from those facts. Id.; State v. Ray, 157 Or.App. 601, 604, 971 P.2d 490 (1998). In making that legal determination, we limit our review to the evidence before the court at the time that it decided the motion.1 Najibi, 150 Or.App. at 199 n. 4, 945 P.2d 1093. On December 19, 2006, two masked men, one armed with a handgun, entered the back door of the Willamina Pharmacy shortly after closing time. Two pharmacists, Kotaich and Bowman, were present. The intruders forced the pharmacists into a back office and bound their hands with zip ties. The intruders then demanded certain narcotics, which they stole. Before leaving, they also stole some cash. The robbery lasted about eight minutes.
Kotaich was able to give a rough physical description of the intruders to the police. He reported that one of the perpetrators was about 5'6?, had a “heavier build,” and was dressed in faded blue jeans and a plain black sweatshirt. Kotaich reported that the other perpetrator, who was armed and did all the talking during the robbery, was 5 appearance because they were wearing makeshift masks—knit wool “beanies” pulled down over their faces and necks with only eyeholes cut out. Kotaich did not get a good look at the taller individual. Kotaich did not think that either perpetrator was a customer of the pharmacy because he did not recognize the taller man's voice. However, Kotaich reported that “the bigger guy had a very distinct voice that was unusual and a higher pitch” and opined that he would “remember that voice forever.”
On February 7, 2007, Detective Steele of the Yamhill County Sheriff's Office contacted Kotaich to make a voice identification.2 Steele used a recording of defendant being interviewed by police about robberies in a different county. Steele testified that he had selected a “benign” portion of the recording to play for Kotaich, but he could not recall what portion of the recording he had played or what was being said on the recording. He made no attempt to put together other voice exemplars to play for Kotaich. However, before playing the tape, Steele cautioned Kotaich that he “may or may not recognize this voice, and the fact that [Steele] was playing [it] for him he should not read anything into.” According to Steele, after just a few seconds of listening to the recording, Kotaich said that he was “certain” that the voice on the recording was that of the taller perpetrator.
Sometime after the robbery, Steele had learned that another witness—Hoyer, a customer of the pharmacy—had seen someone outside the store about an hour before the robbery. Steele did not obtain a description of the individual from Hoyer before meeting with her. Instead, on February 10, he brought five black and white photographs to Hoyer's home. At least three of the photographs were of suspects, including defendant. Steele made no attempt to prepare a photo array of similar-looking individuals: four of the individuals were apparently Caucasian and one was apparently Hispanic; only one individual (the Hispanic man) displayed visible facial hair; one individual had short blond hair, one had short brown hair, and three had dark brown or black hair of widely varying lengths; and the individuals' facial structures differed.3 Before showing the photographs to Hoyer, Steele told her,
Steele presented the photographs to Hoyer and, after about seven seconds, she pointed to defendant's picture (the Hispanic man with facial hair) and said, “He resembled this one.” Steele then asked her for a description of the clothing of the man she saw outside the pharmacy. Hoyer indicated that the man was wearing a dark-colored hooded sweatshirt and a dark-colored stocking cap. She had never seen him before the day of the robbery.
Defendant moved before trial to suppress both the photographic and voice identifications on the ground that they had been procured using suggestive procedures and were therefore inadmissible. At the pretrial hearing on defendant's motion, Steele was the only person to testify. In addition to the facts recounted above, Steele testified about the procedures normally used in pretrial identifications. He explained that the normal procedure for a photo throwdown involves assembling several photographs of “like individuals” and showing those to the witness. He admitted that there were no pressing circumstances that prevented him from assembling a traditional photo throwdown in this case. Steele also explained that he was not aware of any protocol for voice identifications and admitted that there was no reason why he could not have provided more than one voice exemplar to the witness in this case.
In addition, defendant read a statement at the hearing in order to provide a voice exemplar. Steele testified, and the trial court found, that defendant did not have a high- pitched voice.4 Nonetheless, the trial court determined that the voice identification had not been obtained using “impermissibly suggestive” procedures and that, in any event, the circumstances suggested the identification was reliable. The court also concluded that the photographic throwdown was not suggestive. Consequently, it denied defendant's motion to suppress. At trial, both witnesses recounted their pretrial identification of defendant, and defendant was ultimately convicted.
On appeal, defendant renews his argument that both identifications were the product of suggestive procedures and, therefore, should be excluded under the principles announced in Classen.5 With regard to the voice identification, defendant argues that it was suggestive to play a “single recording * * * of a single voice” for the witness, particularly where the recording was an interrogation by police about robberies in another county. Defendant further argues that the state did not meet its burden to establish that the identification was reliable notwithstanding the suggestive procedure. With regard to the photo throwdown, defendant points out that the detective, by his own admission, deviated from the normal procedure by failing to select photographs of similar-looking individuals. That failure, according to defendant, improperly led the witness to identify defendant. Furthermore, defendant argues, the circumstances surrounding the identification do not support a conclusion that it was reliable despite the suggestive procedures.
The state responds that the detective's warnings prior to both identifications were sufficient to inoculate the identifications against any suggestive effects of the police procedures. As to the voice identification, the state also argues that the procedure was not suggestive merely because a single voice was played or because the subject matter of the recording was a police interrogation. Moreover, according to the state, using multiple voice exemplars would have increased the likelihood of suggestiveness. In addition, the state contends, the content of the recording was not influential because the detective used a “benign” portion of the police interview. In any event, the state argues that the identification bore sufficient indicia of reliability to be admissible. As to the photo throwdown, the state argues only that the procedure was not suggestive; it concedes that, if the procedure was suggestive, the identification was not reliable. Alternatively, it argues that any error with regard to the photo identification was harmless. For the following reasons, we conclude that the identifications should have been suppressed.
Under Classen, the admissibility of challenged identification evidence hinges on a two-step inquiry:
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