State v. Haugen, 10CR0636

Citation360 P.3d 560,274 Or.App. 127
Decision Date30 September 2015
Docket Number10CR0636,A151535.
PartiesSTATE of Oregon, Plaintiff–Respondent, v. Shawn Edwin HAUGEN, Defendant–Appellant.
CourtCourt of Appeals of Oregon

274 Or.App. 127
360 P.3d 560

STATE of Oregon, Plaintiff–Respondent,
Shawn Edwin HAUGEN, Defendant–Appellant.


Court of Appeals of Oregon.

Argued and Submitted April 29, 2014.
Decided Sept. 30, 2015.

360 P.3d 563

Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.



274 Or.App. 128

After a jury trial, defendant was convicted of one count of third-degree assault, ORS 163.165. On appeal, defendant assigns error to the trial court's denial of his (1) motion to suppress the victim's eyewitness identification; and (2) motions in limineto exclude evidence that the state introduced to show that defendant was motivated to commit the assault by his membership in a motorcycle gang. We conclude that the trial court did not err, and we affirm the judgment.


The victim went to a bar in Grants Pass. When he arrived, he observed approximately six people whom he believed, based on their attire, to be members of the Vagos motorcycle gang. The group was wearing shirts, vests, and jackets that bore the Vagos “color”—green—and assorted Vagos logos. One of the group's members, Rives, approached the victim and asked if he knew a man named Moore. The victim answered yes. Rives began “ranting and raving,” calling Moore “a snitch” and “a low life,” and saying that Moore didn't “deserve to live.”1The victim also overheard some members of the group teasing another member—whom the victim later identified as defendant—about being a used car salesman. Two hours later, the victim got up to leave. On the way out, he saw the man, later identified as defendant, standing near the door. As the victim

360 P.3d 564

passed, the man said, “Have a good fucking night.” Then the victim saw Rives, who asked, “Are you here to kick us out?” The victim said that he was just going to his car. The man by the door touched the victim on the shoulder and said, “Well, walk to your car.” The victim replied, “Okay,” and began walking. The victim was then punched in the side of the head and fell to the ground, where he was then kicked “in the chest or shoulder.” While trying to get up, the victim was struck in the head with what he thought was a hammer, nearly knocking him unconscious. The victim was able to reach his truck and drive home.

274 Or.App. 129

At home, the victim called 9–1–1 and told the dispatcher that he had been punched and “blind-sided” as he left the bar. The victim declined an ambulance, but Officer Nicklason came to his home to interview him. The victim, in pain from his head injuries, was unable to provide any information to Nicklason about his assailants other than that they were Vagos members.

Five days later, Detective Brown interviewed the victim. The interview was recorded and played for the jury at trial. According to the transcript, the victim told Brown that the men who assaulted him were “definitely Vagos” who were “flying their colors” and “had Vagos on their jackets.” The victim described the man who punched and kicked him as a “great big stout guy,” approximately 230 pounds, “not fat,” in his late 20s or early 30s, and was the same man who was being teased for being a used car salesman. He described the second assailant as a “little fat guy,” a “little, fat puke,” “probably in his 40s,” with a “long ponytail.” Brown asked the victim if the “big guy” was “pretty buff,” and the victim said that he was. Brown then said, “I think I know who you're talking about.” Brown did not know that defendant was a used car salesman, and he testified that he actually suspected a different person of the assault at the time of the interview.

Brown told the victim, “I'll show you some photographs” that “maybe * * * will help us—once we have some photos we can go through” and “we'll identify * * * who the little fat guy is[.]” Brown also explained that, “[t]ypically, we just have like six small photographs, but because there's so many people involved in this I'm just going to show you a group of photographs.” Brown then administered a photo lineup, which began with these instructions to the victim:

“You're about to be shown some photographs. Just because the police officer is showing you these photos, you are in no way obligated to identify anybody, okay? The person who committed the crime may or may not be in this group of photographs. Study the photos carefully before you make any comments or make any decisions.
“And if you select somebody we'll do a process, and in this case what I'll probably do is pull the picture out, I'll
274 Or.App. 130
have you sign, initial it, and then we'll kind of go through the descriptors and stuff like that so that you and I are on the same page.”

Brown then showed the victim a series of 23 photos in sequential order that were taken from a binder containing Department of Motor Vehicles (DMV) photos of known Vagos gang members.2The photos did not include any notes or names. The victim saw a photo of defendant and said, “This sure looks like the guy that hit me right here.” The victim continued, “he hit me—he kicked me and hit me, I'm pretty sure it was him.” Brown responded, “[W]e'll just call him ‘White Boy’ for now. * * * [W]e'll set him aside.” The victim also identified Rives as the “little fat man.” The victim told Brown that he was 80 percent sure that defendant and Rives were his assailants. Brown also provided occasional feedback regarding individuals in the photographs, including some of their gang names, true names, and additional information:

“[THE VICTIM]: I think this guy was one of the ones that was scooped up before, I believe.
“BROWN: Yeah, that is—
“[THE VICTIM]: He's a good man.
360 P.3d 565
“BROWN: Mr. Jorgensen? Yeah.
“[THE VICTIM]: Chris Jorgensen. I recognize him. This chap was there. They were calling him Ronnie.
“BROWN: That's because his name is Ron Godwin.
“[THE VICTIM]: Okay, yeah.
“BROWN: So he was present?
“[THE VICTIM]: He was, in fact, present. I can't say that he was involved in the assault. If he was, I didn't see it, but he was—
“BROWN: So you don't—was he present outside during the assault?
274 Or.App. 131
“[THE VICTIM]: I didn't see him, no.
“BROWN: Okay. Okay, fair enough.”

The victim asked Brown how old the photos were, and Brown replied that some of them were “a couple” years old. Brown showed the victim more recent photographs of defendant and Rives and told the victim that the photos would “maybe * * * help a little bit” because there were “some significant differences” between the photos. After viewing the more recent photos, the victim said that he was 90 percent certain that defendant was the one who had punched and kicked him.

Defendant was charged with one count of third-degree assault, ORS 163.165. Defendant filed a pretrial motion to suppress the out-of-court identification and any future in-court identification of defendant by the victim, arguing that the identification should be excluded based on a flawed lineup procedure, including Brown's “feedback” and “coaching.” Following a hearing, the trial court denied defendant's motion. In a letter opinion applying the then-controlling case of State v. Classen,285 Or. 221, 590 P.2d 1198 (1979), the court concluded that Brown followed police guidelines in administering the lineup and that the court could find “no other legal reason why the photographic lineup in this case was unduly suggestive.”

In its findings, the trial court noted that the victim was

“seriously injured, although not to the extent of the surviving victim in [State v.] Lawson[, 239 Or.App. 363, 244 P.3d 860 (2010)]. In any event, [the victim] after five days had recovered enough to specifically note four factors about his assailant, which significantly narrowed the universe of suspects to the defendant, to wit:
“1. His assailant was a member of the Vagos. This was corroborated by other witnesses.
“2. His assailant was present at the Red Rock Lounge on the night of the crime wearing Vagos regalia. This was corroborated by other witnesses.
“3. His assailant was tall and solidly built. This was corroborated by other witnesses, and the Court's observation of the defendant at this motion hearing.
274 Or.App. 132
“4. His assailant was a car salesman. This has been corroborated by

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