State v. Fennell

• Jurisdiction: Oregon
• Decision Date: 19 October 1971
• Citation: State v. Fennell, 7 Or.App. 256, 489 P.2d 964 (Or. App. 1971)
• Parties: STATE of Oregon, Respondent, v. Nathaniel FENNELL, Jr., Appellant.
• Court: Oregon Court of Appeals

Page 964

489 P.2d 964

7 Or.App. 256

STATE of Oregon, Respondent, v. Nathaniel FENNELL, Jr., Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Sept. 24, 1971.

Decided Oct. 19, 1971.

Charles R. Harvey, Portland, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Defendant was convicted of second degree arson and in this appeal alleges two errors. First, that testimony of police officers that witnesses had selected defendant as a suspect after identifying defendant's picture from a group of pictures immediately after the fire was hearsay and inadmissible. Second, that testimony of a witness who testified before a grand jury when it returned a previous indictment which was dismissed and who did not testify when the instant indictment was returned by another grand jury should not have been received because the name of the witness does not appear on the second indictment.

On the night of June 6, 1970, at about 10:30 p.m. the Grandma's Cookie factory in Portland burned. The fire obviously was set. Defendant, by his admission and independent testimony, was in the area when the fire started. Two boys in the company of other children were walking home from a Rose Festival parade and passing the factory. Both testified that they saw a man wearing clothes similar to those defendant wore that night kneeling by a telephone pole on the sidewalk adjacent to the factory, and one stated that he saw on the sidewalk by the man a beer bottle with a cotton wick in it. Immediately after they passed the factory the fire erupted. One boy testified that he heard a window crash and saw the same person whom he had seen kneeling on the sidewalk running away. Each of the boys testified that he could not identify the defendant at the time of trial. Each stated that immediately after the fire, officers had shown him pictures from which he had selected a picture of the defendant as being the person he had seen kneeling on the sidewalk. One of them positively stated that the picture which he selected was of the same man he had seen by the telephone pole. The other was less positive in his identification.

Defendant's counsel did not cross-examine these witnesses, although he had the opportunity to do so. The officers who showed the pictures testified that they had a group of pictures sent out from police department files and that each of the boys was placed alone in a police car on a service station lot near the scene of the fire and allowed to look through the group of pictures. They testified one of them quickly settled upon defendant's picture as that of the suspect and the other selected it with less positiveness. All of this testimony was objected to by defendant's counsel as hearsay.

One Hawkins was awaiting sentence for participation in the same crime. The district attorney called him as a witness and he claimed his privilege against testifying under the Fifth Amendment to the United States Constitution. Thereupon, the prosecutor offered a transcript of Hawkins's testimony about the crime before a grand jury and it was received under a stipulation of counsel and read to the jury. In this testimony Hawkins in detail described this defendant's activities with reference to setting the fire. Numerous details of his description coincided with the testimony which the boys had already given concerning the activities of the man they had observed near the telephone pole. When defendant's time came to put on his case, Hawkins had changed his mind and appeared as a defendant's witness, waiving his Fifth Amendment rights. In this testimony he stated that he had perjured himself at the grand jury hearing and that defendant had nothing to do with the fire. He said he had made up in his mind the details about which he had testified to the grand jury.

. A line of cases in Oregon holds that extrajudicial identifications may not be received in evidence. Typical of these cases are State of Oregon v. Lanegan, 192 Or. 691, 236 P.2d 438 (1951); State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927 (1920); and State v. Houghton, 43 Or. 125, 71 P. 982 (1903). The ordinary case where the rule is applied presents a situation where the witness identifies the defendant in the courtroom and the extrajudicial identification is offered to bolster the witness's courtroom identification. In some cases evidence of the extrajudicial identification has been received after cross-examination of the state's witness has sought to impeach the in-court identification. State v. Nunes, 251 Or. 49, 444 P.2d 542 (1968); State v. Wong Wen Teung, 99 Or. 95, 195 P. 349 (1921). We find no Oregon case where the facts are in point with those of the case at bar.

The rule of law applied by some courts and not others which excludes such testimony is severely criticized in 4 Wigmore, Evidence 208, § 1130 (3d ed. 1940). This criticism is quoted Infra in a quotation from State v. Wilson, 38 Wash.2d 593, 231 P.2d 288 (1951). The divergent and confusing holdings from various jurisdictions are detailed in an Annotation, 71 A.L.R.2d 449 (1960).

In the instant case the trial court considered People v. Gould, 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 275, 354 P.2d 865, 867 (1960). In that opinion Mr. Justice Traynor, for the court, said:

'Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial (citing cases), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached (citing cases), evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. (Citing cases.) The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination (citing cases).'

At p. 631, 7 Cal.Rptr. at p. 278, 354 P.2d at p. 870, the opinion states:

'* * * (E)xtrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime * * *.'

In the case at bar the trial judge, referring to People v. Gould, supra, said:

'* * * This follows * * * what I consider to be the better statement of the law * * * in these cases that we see * * * involving crimes of this nature, there are tremendous pressures put on witnesses that we are all aware of, and that they sometimes are absolutely coerced from identification at the time of trial, sometimes to the extent of being threatened with their very lives; that the identification that takes place immediately after the event, before this pressure can come in to these people that witness a crime, is reliable and trustworthy; and * * * necessary.'

As already noted, the facts in the case at bar are not factually in point with the Oregon cases upon which defendant relies. There is indication that the rule, even in the ordinary case, may no longer be applied. In State v. Randolph, 251 Or. 45, 444 P.2d 545 (1968), the court noted that the testimony of a detective about an extrajudicial description by the victim of the defendant was hearsay and inadmissible. Then the court said:

'As a part of its argument the state urges in effect that we adopt Rule 63(1) of the proposed Uniform Evidence Act. ¹

In two previous cases this court has indicated tacit approval of such a rule. State v. Opie, 1946, 179 Or. 187, 170 P.2d 736; State v. Herrera, 1963, 236 Or. 1, 7, 8, 386 P.2d 448. However, in this case it is not necessary to decide if the proposed Uniform Rule should be adopted as a fixed rule of evidence because we have determined that the evidence, if error, was not prejudicial.'

The reason that we have said the facts here are not in point with the ordinary Oregon case where the rule has been applied is that the witnesses here testified that they could not make an identification at the time of trial. They were not asked whether they could pick out the pictures which they had previously selected, but the prosecutor in colloquy with the court and opposing counsel, In camera, assured the court t...