State v. Harrell

• Decision Date: 13 June 2018
• Docket Number: A162126
• Citation: 292 Or.App. 348,424 P.3d 817
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jonathan William HARRELL, Defendant-Appellant.
• Court: Oregon Court of Appeals

292 Or.App. 348

424 P.3d 817

STATE of Oregon, Plaintiff-Respondent,

v.Jonathan William HARRELL, Defendant-Appellant.

A162126

Court of Appeals of Oregon.

Submitted February 21, 2018.

June 13, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and

Sharia Mayfield, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

ORTEGA, P. J.

Defendant seeks reversal of his conviction for reckless driving, ORS 811.140, challenging the trial court’s denial of his motion to suppress a witness’s out-of-court identification and any in-court identification of defendant. He argues that the court should have excluded the identification evidence because it did not meet the foundational threshold for admissibility under OEC 602 and OEC 701, as it was unreliable and the conditions under which the police officers administered a "showup" were inherently suggestive. Further, he argues that, even if the identification evidence did meet that threshold requirement, it should have been excluded under OEC 403 as unduly prejudicial. We conclude that the trial court did not err in admitting the out-of-court identification and permitting the in-court identification, and therefore we affirm.

"In reviewing a trial court’s admission of eyewitness identification evidence, we defer to the court’s findings of fact as long as they are supported by any evidence in the record; we review the trial court’s evidentiary ruling for legal error." State v. Engle , 278 Or. App. 54, 55, 373 P.3d 1191, rev. den. , 360 Or. 465, 384 P.3d 154 (2016). However, when a defendant challenges the admissibility of the identification evidence on OEC 403 grounds, we review the court’s decision to admit the evidence for abuse of discretion. State v. Lawson/James , 352 Or. 724, 762, 291 P.3d 673 (2012).

Smith spotted a white Cadillac driving erratically and watched as it almost caused an accident. She followed the Cadillac into a Safeway parking lot and watched the driver and one other person get out of the car. The driver walked up to Smith’s car and asked, "How’s that working for you?" After the driver and the passenger entered the Safeway, Smith called the police and described the driver as a tall and heavy-set male with a beard or a mustache, who was accompanied by "a heavy-set girl, in a pink shirt." Officers Farr and Hays were dispatched to the parking lot and, when they arrived, they questioned Smith about the incident. She told them what had happened, described the driver and the passenger, and then left to go to the police station.

Farr and Hays remained in the parking lot and, when defendant and a child, both of whom matched Smith’s descriptions, left the Safeway, Farr stopped them to ask about defendant’s involvement in the incident. Farr contacted the police station and asked Smith to return to the scene to identify the person driving the Cadillac. When Smith arrived, she identified defendant as the driver. At the time of the identification, defendant was not handcuffed and was not in the back of the police car; he was standing next to Hays about 25 yards away from where Smith was parked with Farr. Smith did not want to get close to defendant because she was "skittish" about him seeing her. She then left, and defendant was arrested and charged with reckless driving (Count 1) and recklessly endangering another person (Count 2).

Before his trial, defendant filed a motion to suppress Smith’s out-of-court identification and to prevent any in-court identification, invoking Lawson/James , 352 Or. at 724, 291 P.3d 673. Before discussing defendant’s specific challenges to the identification evidence, we pause to briefly revisit the evidentiary concepts in that decision.

In Lawson/James , the Supreme Court established a two-step process for determining the admissibility of an eyewitness’s identification when faced with an argument that the identification was tainted by suggestive police procedures. First, "when a criminal defendant files a pre-trial motion to exclude eyewitness identification evidence, the state as the proponent of the eyewitness identification must establish all preliminary facts necessary to establish admissibility" under the applicable provisions of the Oregon Evidence Code. Lawson/James , 352 Or. at 761, 291 P.3d 673. That is, when a defendant’s challenge implicates OEC 602 and OEC 701, the burden is on the state to prove that the witness had "the personal knowledge necessary to make an identification, OEC 602, and the identification must be rationally based on that knowledge and be helpful to the jury. OEC 701." Hickman , 355 Or. at 728, 330 P.3d 551. Second, if the state meets its burden under the first step—i.e. , once the state establishes that minimum baseline of reliability—the burden then shifts to defendant to prove that, "under OEC 403 ***, although the eyewitness evidence is otherwise admissible, the probative value is substantially outweighed by the danger of unfair prejudice ***." Lawson/James , 352 Or. at 740, 291 P.3d 673.

The state "satisfies OEC 602 if the eyewitness testifies to facts that, if believed, would permit a reasonable juror to find that the eyewitness observed the facts necessary to make the identification." State v. Hickman , 355 Or. 715, 729–30, 330 P.3d 551 (2014), cert. den. , ––– U.S. ––––, 136 S.Ct. 230, 193 L.Ed.2d 173 (2015). To satisfy OEC 701, the state "must demonstrate by a preponderance of the evidence that the witness perceived sufficient facts to support an inference of identification and that the identification was, in fact, based on those perceptions." Lawson/James , 352 Or. at 754–55, 291 P.3d 673. We consider estimator and system variables to decide the issue implicating OEC 701, but only apply estimator variables to the OEC 602 issue. Hickman , 355 Or. at 724, 330 P.3d 551. Estimator variables "generally refer to characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be manipulated or adjusted by state actors." Lawson/James , 352 Or. at 740, 291 P.3d 673. In contrast, system variables concern the "circumstances surrounding the identification procedure itself that are generally within the control of those administering the procedure." Id.

In a hearing to address defendant’s motion, the court noted that there was insufficient evidence that Smith was able to identify the driver of the Cadillac before stopping in the Safeway parking lot. Nevertheless, the court concluded that the state had satisfied the minimum baseline of reliability of Smith’s identification, because it "was based [on her] firsthand perceptions and would be helpful to the trier of fact" because of

"how she observed [defendant], observed the vehicle, saw him get out of the vehicle, he approached her, [and] he spoke to her."

In concluding that the probative value of the identification outweighed the risk of undue prejudice, the court concluded that, although the showup was suggestive, "it [was] not so unduly suggestive that it *** [made] it necessary to suppress the eyewitness identification." The trial court then stated that the

"circumstances under which eyewitness identifications can occur vary so widely. ***

"This was an extremely recent observation of a defendant who was somewhat distinctive physically. *** [Defendant was] the tallest man in the room. *** [H]e was accompanied *** by an observable, describable, in at least one or two ways distinctive, companion. She didn’t just see him to identify him, *** [she first perceived him] close up.

"And, therefore, [the court] determin[ed] that the showup itself was not so unduly suggestive as to undermine so completely the reliability of the eyewitness testimony as to require [it] to exclude [the evidence]."

The court denied defendant’s motion, and the case proceeded to a jury trial at which Smith also identified defendant in court. Defendant was convicted on Count 1 for reckless driving.

On appeal, defendant renews his arguments from below, first focusing on the "estimator variables" to demonstrate that Smith lacked personal knowledge under OEC 602 to identify defendant as the driver. He asserts that Smith’s observation of him at the time of the identification occurred while she was under stress, distracted, and "skittish." He also argues that Smith could not identify him as the driver because he lacked distinctive physical characteristics. Defendant further contends that, even if Smith had personal knowledge, the identification evidence should have been excluded because the identification did not meet the OEC 701 standard. Relying on the system variables, defendant asserts that the showup was inherently suggestive because it was not blindly administered, Farr did not give pre-identification instructions to Smith, and it was impossible for Smith to get a good view of defendant because she was far away, which made it less likely that her identification was rationally based on her perception and would be helpful for the jury.

Alternatively, defendant argues that the identification should have been suppressed because it was unduly prejudicial. According to defendant, Farr used an unreliable identification procedure that offered "little probative value."

In response, the state asserts that the trial court correctly concluded that the requirements of OEC 602 were satisfied because Smith had...